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https://www.courtlistener.com/api/rest/v3/opinions/8476187/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry A. Cutchin appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cutchin v. Hogshire, No. 3:08-cv-00802-JRS (E.D.Va. Sept. 9, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476190/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne L. Davis seeks to appeal the district court’s order dismissing his complaint without prejudice. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Davis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993).
Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Davis’s mo*398tion to reconsider our previous order denying his motion for stay pending appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476192/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated cases, Andrew Wenmoth seeks to appeal the district court’s orders dismissing his complaint in part and denying his motion to alter or amend the district’s order. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Wenmoth seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. Accordingly, we deny Wenmoth’s motions for stays pending appeal and dismiss the appeals for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476193/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Gathers petitions this court for an injunction in which he seeks to have his 42 U.S.C. § 1983 (2006) complaint removed from the United States District Court for the District of South Carolina. The record reveals that the district court has issued a final order in that case, and Gathers has *405appealed. We therefore deny Gathers’ petition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476184/
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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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476186/
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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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476188/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry A. Cutchin appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cutchin v. Hogshire, No. 3:08-cv-00802-JRS (E.D.Va. Sept. 9, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476189/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne L. Davis seeks to appeal the district court’s order dismissing his complaint without prejudice. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Davis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir.1993).
Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Davis’s mo*398tion to reconsider our previous order denying his motion for stay pending appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476191/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated cases, Andrew Wenmoth seeks to appeal the district court’s orders dismissing his complaint in part and denying his motion to alter or amend the district’s order. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders Wenmoth seeks to appeal are neither final orders nor appeal-able interlocutory or collateral orders. Accordingly, we deny Wenmoth’s motions for stays pending appeal and dismiss the appeals for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476201/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, George Paul LaRoque appeals the district court’s orders: (1) denying his motions to vacate the bankruptcy court’s judgments and (2) granting the Appellee’s motion to dismiss. We have reviewed the record and find no reversible error. Accordingly, we deny LaRoque’s motion to proceed in forma pauperis and dismiss the appeals for the reasons stated by the district court. La-Roque v. Conti, Nos. 1:08-cv-00564-NCT; 1:08-cv-00568-NCT; 1:08-ev-00595-NCT; 1:08-cv-00663-NCT; 1:09-cv-00078-NCT; 1:09-cv-00082-NCT (M.D.N.C. July 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476203/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek Jarvis seeks to appeal the district court’s paperless orders denying his motions to stay and to recuse the magistrate judge and the district court’s order granting Defendant’s motion for sanctions related to Defendant’s motion to compel discovery. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Jarvis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476205/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Merle T. Rutledge, Jr., appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Rutledge v. City of Norfolk, No. 2:09-cv-00129-MSD-JEB (E.D. Va. filed July 30; entered July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476209/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek N. Jarvis seeks to appeal the district court’s July 7, 2009, order denying numerous motions filed in Jarvis’ 42 U.S.C. § 1983 (2006) action. On appeal, Jarvis objects from the portion of the court’s order denying his motion to recuse the district judge from his case. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Jarvis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476198/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Tillery petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). He seeks an order from this court directing the district court to act. Our review of the docket sheet and record reveals that the district court denied Tillery’s motion by order entered on November 1, 2009. Accordingly, because the district court has recently decided Tillery’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476202/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, George Paul LaRoque appeals the district court’s orders: (1) denying his motions to vacate the bankruptcy court’s judgments and (2) granting the Appellee’s motion to dismiss. We have reviewed the record and find no reversible error. Accordingly, we deny LaRoque’s motion to proceed in forma pauperis and dismiss the appeals for the reasons stated by the district court. La-Roque v. Conti, Nos. 1:08-cv-00564-NCT; 1:08-cv-00568-NCT; 1:08-ev-00595-NCT; 1:08-cv-00663-NCT; 1:09-cv-00078-NCT; 1:09-cv-00082-NCT (M.D.N.C. July 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476206/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Merle T. Rutledge, Jr., appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to state a claim. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Rutledge v. City of Norfolk, No. 2:09-cv-00129-MSD-JEB (E.D. Va. filed July 30; entered July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476208/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM.
Nyron Joel Nichols appeals the district court’s order denying his motion for modification of the record and his motion to produce a copy of the court reporter’s original sound recordings of the proceedings. We have independently reviewed the record and find that Nichols is not entitled to the relief he requests. Accordingly, we deny Nichols’ motion for stay pending appeal and affirm for the reasons stated by the district court. United States v. Nichols, No. 7:07-cr-00006-gec-1 (W.D.Va. July 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476210/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek N. Jarvis seeks to appeal the district court’s July 7, 2009, order denying numerous motions filed in Jarvis’ 42 U.S.C. § 1983 (2006) action. On appeal, Jarvis objects from the portion of the court’s order denying his motion to recuse the district judge from his case. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Jarvis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476213/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Octavius Bentley appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006), as well as the district court’s order denying Bentley’s “Motion to Vacate.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and deny Bentley’s motion to appoint counsel on appeal. Bentley v. Johnson, 7:09-cv-00253-gec-mfu, 2009 WL 2370618 (W.D.Va. Jul. 31, 2009; Aug. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476215/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ezell McKelver pled guilty to two counts of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). He was sentenced to 180 months’ imprisonment. He now appeals the district court’s margin order denying his subsequently filed motion to dismiss the indictment as defective under Fed.R.Crim.P. 12(b)(2).* We have reviewed the record *420and find no reversible error. Accordingly, we affirm. United States v. McKelver, No. 5:03-cr-00262-PMD-1 (D.S.C. May 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
McKelver likely intended to bring this motion under Fed.R.Crim.P. 12(b)(3)(B). However, as relief is unavailable to him under either subsection of Rule 12, we find this to be of no consequence.
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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/8476221/
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*424Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Tavaughn Jackson appeals the district court’s order denying relief on his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. See United States v. Lindsey, 556 F.3d 238, 243-45 (4th Cir.2009); United States v. Dunphy, 551 F.3d 247, 251 (4th Cir.2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476223/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Lee Fulgham appeals the district court’s order dismissing his 42 U.S.C § 1983 (2006) action for failure to comply with a court order. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fulgham v. The Commonwealth of Virginia Mental and Med. Doctors, No. 2:09-cv-00089-JBF-TEM (E.D.Va. Apr. 27, 2009). We deny Fulgham’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476212/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Thomas Oechsle, Jr., appeals the district court’s order denying his Fed. R.Crim.P. 35(b) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Oechsle, No. 5:94-cr-00057-BO-1 (E.D.N.C. July 27, 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. We deny the motion to order officials to make copies, provide paper and envelopes, and allow access to law books.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476214/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Octavius Bentley appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006), as well as the district court’s order denying Bentley’s “Motion to Vacate.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and deny Bentley’s motion to appoint counsel on appeal. Bentley v. Johnson, 7:09-cv-00253-gec-mfu, 2009 WL 2370618 (W.D.Va. Jul. 31, 2009; Aug. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476224/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Lee Fulgham appeals the district court’s order dismissing his 42 U.S.C § 1983 (2006) action for failure to comply with a court order. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Fulgham v. The Commonwealth of Virginia Mental and Med. Doctors, No. 2:09-cv-00089-JBF-TEM (E.D.Va. Apr. 27, 2009). We deny Fulgham’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476225/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, Robert Gene Bailey appeals the district court’s orders accepting the recommendations of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaints under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the records and find that these appeals are frivolous. Accordingly, we dismiss the appeals for the reasons stated by the district court. Bailey v. Gaddy, No. 5:09-cv-00060-F, 2009 WL 1346157 (E.D.N.C. May. 12, 2009); Bailey v. Butler, No. 5:09-cv-00153-F, 2009 WL 1705607 (E.D.N.C. June 11, 2009); Bailey v. Simpson, No. 5:09-cv-00084-F, 2009 WL 1675951 (E.D.N.C. June 11, 2009); Bailey v. Marsh, No. 5:09-cv-00180-F, 2009 WL 1705610 (E.D.N.C. June 11, 2009); Bailey v. Lowery, No. 5:09-cv-00194-F (E.D.N.C. June 11, 2009); and Bailey v. Blue, No. 5:09-cv-00195-F, 2009 WL 1675933 (E.D.N.C. June 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476227/
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*426Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pete Smith petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his petition for a modification of his supervised release. Smith seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, although we grant leave to proceed in forma pauperis, we deny the mandamus petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476229/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward E. Stroupe, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and affirming the final decision of the Commissioner of Social Security that Stroupe was not entitled to supplemental security income. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Stroupe v. Astrue, No. 1:07-cv-00090-jpj-pms, 2009 WL 167499 (W.D.Va. Feb. 9, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476233/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick Vincent Tyler seeks to appeal the magistrate judge’s order granting the Appellee’s motion for an extension of time in which to file a response to Tyler’s 28 U.S.C.A. § 2255 (West Supp.2009) motion, and denying Tyler’s petition for judgment. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. *431R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Tyler seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476235/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector David Portillo appeals the district court’s order denying his motion to amend his criminal judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Portillo, No. 1:95-cr-00522LMB-1 (E.D.Va. July 24, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476237/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdiyyah ben Alkebulanyahh appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Alkebulanyahh v. Ozmint, No. 6:07-cv-03219-MBS, 2009 WL 2043912 (D.S.C. July 13, 2009). We deny Alkebulanyahh’s motions for appointment of counsel and 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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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In these consolidated appeals, Robert Gene Bailey appeals the district court’s orders accepting the recommendations of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaints under 28 U.S.C. § 1915(e)(2)(B) (2006). We have reviewed the records and find that these appeals are frivolous. Accordingly, we dismiss the appeals for the reasons stated by the district court. Bailey v. Gaddy, No. 5:09-cv-00060-F, 2009 WL 1346157 (E.D.N.C. May. 12, 2009); Bailey v. Butler, No. 5:09-cv-00153-F, 2009 WL 1705607 (E.D.N.C. June 11, 2009); Bailey v. Simpson, No. 5:09-cv-00084-F, 2009 WL 1675951 (E.D.N.C. June 11, 2009); Bailey v. Marsh, No. 5:09-cv-00180-F, 2009 WL 1705610 (E.D.N.C. June 11, 2009); Bailey v. Lowery, No. 5:09-cv-00194-F (E.D.N.C. June 11, 2009); and Bailey v. Blue, No. 5:09-cv-00195-F, 2009 WL 1675933 (E.D.N.C. June 11, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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*426Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pete Smith petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his petition for a modification of his supervised release. Smith seeks an order from this court directing the district court to act. We find there has been no undue delay in the district court. Accordingly, although we grant leave to proceed in forma pauperis, we deny the mandamus petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Champagne seeks to appeal his conviction and sentence. In criminal cases, the defendant must file the notice of appeal within ten days after the entry of judgment. Fed. R.App. P. 4(b)(1)(A). With or without a motion, upon a showing of excusable neglect or good cause, the district court may grant an extension of up *429to thirty days to file a notice of appeal. Fed. R.App. P. 4(b)(4); United States v. Reyes, 759 F.2d 351, 353 (4th Cir.1985). The district court entered judgment on January 9, 2007. The notice of appeal was filed on August 22, 2008. Because Champagne failed to file a timely notice of appeal or to obtain an extension of the appeal period, we dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abdiyyah ben Alkebulanyahh appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Alkebulanyahh v. Ozmint, No. 6:07-cv-03219-MBS, 2009 WL 2043912 (D.S.C. July 13, 2009). We deny Alkebulanyahh’s motions for appointment of counsel and 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:
Michael J. Thompson appeals the district court’s order denying his self-styled “Motion For Nunc Pro Tunc Order Directing Award of Pre-sentence Credit Toward Federal Sentence.” We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Thompson, No. 1:05-cr-00480-TSE-1 (E.D. Va. filed May 1, 2009; entered May 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Bush petitions for a writ of mandamus, alleging that the district court has unduly delayed acting on his 28 U.S.C. § 2255 (2006) motion. He seeks an order from this court directing the district court to act.
Our review of the district court’s docket sheet reveals that the district court issued a final opinion and order denying Bush’s motion on September 24, 2007. Accordingly, because the district court has decided the case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Moses Wilkerson appeals the district court’s order denying his motion for reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Wilkerson, No. 5:96-cr-00167-H-1 (E.D.N.C. Sept. 10, 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:
Dane Brunell Norford appeals the district court’s order denying relief on his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Norford, No. 4:02-cr-00039-H-2 (E.D.N.C. July 2, 2009). We further deny Norford’s motion for appointment of counsel. 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:
Christopher A. Odom appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Odom v. Mt. Pleasant Municipal Court, No. 2:08-cv-02660-PMD, 2009 WL 902322 (D.S.C. Mar. 31, 2009). We dispense with oral argument *487because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
Pro se and in forma pauperis inmate Patricia Spencer Patterson (Patterson), SPN # 00252539, appeals the sua sponte dismissal of her 42 U.S.C. § 1983 claim for denial of access to courts for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) and failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). She also moves this court to appoint appellate counsel.
Patterson acknowledged on the face of her complaint that she had not exhausted her administrative remedies, and in support of her claim that she was denied access to courts, Patterson alleged that she was denied access to the law library on three occasions. Patterson argues on appeal that she should have been allowed to amend her complaint prior to its dismissal.
*492A civil rights plaintiff should be given an opportunity to amend her complaint before it is dismissed for failure to state a claim. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Any error, however, may be harmless if the plaintiff has alleged her “best case.” Id. at 1054.
A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted is reviewed under the same de novo standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). “The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation omitted).
Prisoners have a constitutional right to access the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). However, “Bounds did not create an abstract, freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at 351, 116 S.Ct. 2174. To prevail on a claim of denial of access to courts, a prisoner must show actual injury. Id. at 349-52, 116 S.Ct. 2174.
Although Patterson alleged that she had been denied access to the law library on three occasions, she failed to allege in the district court or in this Court that she had suffered an actual injury. Her failure to allege actual injury is therefore fatal to her “denial of access to courts” claim. Id. Thus, the district court did not err by dismissing this claim for failure to state a claim upon which relief may be granted. Moreover, because Patterson has set forth her “best case,” it was harmless error for the district court to dismiss her case without allowing Patterson an opportunity to amend. Bazrowx, 136 F.3d at 1054.
Finally, Patterson has moved this court to appoint appellate counsel. A plaintiff may request the appointment of counsel under 28 U.S.C. § 1915(e)(1), the federal statute governing proceedings in forma pauperis. That section provides that this court may appoint an attorney “to represent any person unable to afford counsel.” Counsel is generally appointed under § 1915(e)(1) only in “exceptional circumstances.” Santana v. Chandler, 961 F.2d 514, 515 (5th Cir.1992); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982).
In ruling on such requests in a § 1983 case, a district court must consider: (1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting her case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination. Ulmer, 691 F.2d at 213. Although not all of these considerations apply to requests for appellate counsel, “the duty to consider the appellant’s ability to present fairly his or her case is the same.” Dilworth v. Box, No. 94-41088, 1995 WL 295885, at *4 (5th Cir. April 20, 1995) (unpublished). Patterson has failed to set forth “exceptional circumstances” that warrant appointment of counsel here, and, as such, her motion is denied. Santana, 961 F.2d at 515.
JUDGMENT AFFIRMED; MOTION DENIED.
Pursuant to 5th Cut. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Mario Hernandez-Marin has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hernandez-Marin has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issues for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larnette M. Westbrook, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Westbrook v. United States, No. 1:09-cv-00047IMK-JSK, 2009 WL 1752209 (N.D.W. Va. June 18, 2009). We also deny Westbrook’s motion for general relief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Bush petitions for a writ of mandamus, alleging that the district court has unduly delayed acting on his 28 U.S.C. § 2255 (2006) motion. He seeks an order from this court directing the district court to act.
Our review of the district court’s docket sheet reveals that the district court issued a final opinion and order denying Bush’s motion on September 24, 2007. Accordingly, because the district court has decided the case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dane Brunell Norford appeals the district court’s order denying relief on his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Norford, No. 4:02-cr-00039-H-2 (E.D.N.C. July 2, 2009). We further deny Norford’s motion for appointment of counsel. 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:
Quentin Orlando Rutland appeals the district court’s order granting his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm the order of the district court. See United States v. Rutland, No. 5:02-cr-00031-RLV-3 (W.D.N.C. Sept. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed in part; dismissed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Donte Williams pled guilty to possession with intent to distribute fifty grams or more of crack cocaine, 21 U.S.C. § 841(a)(1) (2006). The plea agreement stipulated in accordance with Fed. R.Crim.P. 11(c)(1)(C) that Williams would receive a sentence of 168-262 months. At Williams’ Fed.R.Crim.P. 11 proceeding, that term was narrowed to 168-180 months with the consent of the parties. The stipulated sentencing range was binding upon the district court upon acceptance of the plea agreement. See Fed.R.Crim.P. 11(c)(1)(C).
The district court sentenced Williams to 168 months in prison. Williams now appeals. His attorney has filed a brief pursuant to Anders v. California, 386 U.S. *464738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel contends that the sentence should be set aside because the district court did not state whether it would depart below the stipulated range. Williams was notified of his right to file a pro se supplemental brief but has not filed such a brief. We affirm in part and dismiss in part.
We conclude that we do not have jurisdiction to address the claimed sentencing error. The statute governing appellate review of a sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances under which a defendant may appeal a sentence to which he stipulated in a plea agreement to claims that “his sentence was imposed in violation of law [or] was imposed as a result of an incorrect application of the sentencing guidelines.” United States v. Sanchez, 146 F.3d 796, 797 & n. 1 (10th Cir.1998); United States v. Littlefield, 105 F.3d 527, 527-28 (9th Cir.1997).
Williams’ sentence was not imposed in violation of law. He was statutorily subject to a term of ten years to life in prison. See 21 U.S.C. § 841(b)(1)(A) (2006), and his 168-month sentence falls within this range. Nor is the sentence a result of an incorrect application of the sentencing guidelines. A sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is contractual and not based upon the guidelines. United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.2005) (stating that “[a] sentence imposed under a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines”); Littlefield, 105 F.3d at 528. Application of § 3742(c) requires dismissal of Williams’ appeal of his sentence for want of jurisdiction.
We have reviewed the entire record in accordance with Anders and have not identified any meritorious issues for appeal. Accordingly, we affirm Williams’ conviction and dismiss that part of the appeal relating to sentencing. This court requires counsel to inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court to withdraw from representation. Counsel’s motion must state that a copy of the motion was served on the client. 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 IN PART; DISMISSED IN PART.
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PER CURIAM: *
Pro se and in forma pauperis inmate Patricia Spencer Patterson (Patterson), SPN # 00252539, appeals the sua sponte dismissal of her 42 U.S.C. § 1983 claim for denial of access to courts for failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) and failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). She also moves this court to appoint appellate counsel.
Patterson acknowledged on the face of her complaint that she had not exhausted her administrative remedies, and in support of her claim that she was denied access to courts, Patterson alleged that she was denied access to the law library on three occasions. Patterson argues on appeal that she should have been allowed to amend her complaint prior to its dismissal.
*492A civil rights plaintiff should be given an opportunity to amend her complaint before it is dismissed for failure to state a claim. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). Any error, however, may be harmless if the plaintiff has alleged her “best case.” Id. at 1054.
A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted is reviewed under the same de novo standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). “The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation omitted).
Prisoners have a constitutional right to access the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). However, “Bounds did not create an abstract, freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at 351, 116 S.Ct. 2174. To prevail on a claim of denial of access to courts, a prisoner must show actual injury. Id. at 349-52, 116 S.Ct. 2174.
Although Patterson alleged that she had been denied access to the law library on three occasions, she failed to allege in the district court or in this Court that she had suffered an actual injury. Her failure to allege actual injury is therefore fatal to her “denial of access to courts” claim. Id. Thus, the district court did not err by dismissing this claim for failure to state a claim upon which relief may be granted. Moreover, because Patterson has set forth her “best case,” it was harmless error for the district court to dismiss her case without allowing Patterson an opportunity to amend. Bazrowx, 136 F.3d at 1054.
Finally, Patterson has moved this court to appoint appellate counsel. A plaintiff may request the appointment of counsel under 28 U.S.C. § 1915(e)(1), the federal statute governing proceedings in forma pauperis. That section provides that this court may appoint an attorney “to represent any person unable to afford counsel.” Counsel is generally appointed under § 1915(e)(1) only in “exceptional circumstances.” Santana v. Chandler, 961 F.2d 514, 515 (5th Cir.1992); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982).
In ruling on such requests in a § 1983 case, a district court must consider: (1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting her case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination. Ulmer, 691 F.2d at 213. Although not all of these considerations apply to requests for appellate counsel, “the duty to consider the appellant’s ability to present fairly his or her case is the same.” Dilworth v. Box, No. 94-41088, 1995 WL 295885, at *4 (5th Cir. April 20, 1995) (unpublished). Patterson has failed to set forth “exceptional circumstances” that warrant appointment of counsel here, and, as such, her motion is denied. Santana, 961 F.2d at 515.
JUDGMENT AFFIRMED; MOTION DENIED.
Pursuant to 5th Cut. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Mario Hernandez-Marin has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hernandez-Marin has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issues for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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MEMORANDUM **
P.F. Three Partners (“P.F. Three”) appeals the district court’s order affirming the bankruptcy court’s denial of administrative expense priority for three unsecured creditor claims. These unsecured claims derived from loans obtained by a Chapter 11 partnership, Upland Partners (“Upland”), without court approval. P.F. Three argues the bankruptcy court abused its discretion in holding (1) the loans obtained by the partnership constituted transactions outside the “ordinary course of business,” and (2) “exceptional circumstances” did not exist to warrant allowance and payment of claims nunc pro tunc. We affirm.
P.F. Three’s “ordinary course of business” claim fails for two reasons. First, the loans do not satisfy the vertical dimension test because the transactions subjected Upland’s creditors to economic risks of a nature different from those accepted when the creditors extended credit. See In re Dant & Russell, Inc., 853 F.2d 700, 705 (9th Cir.1988). Second, the loans do not satisfy the horizontal test because P.F. Three failed to provide any evidence to demonstrate that sole partners of real estate development partnerships ordinarily incur debt from entities directly or indirectly controlled by the sole partner. See id. at 704-05. Because P.F. Three’s “ordinary course of business” argument fails, the bankruptcy court did not abuse its discretion in denying P.F. Three administrative priority for the unsecured claims. See 11 U.S.C. § 364(a).
Likewise, the bankruptcy court did not abuse its discretion in holding that the facts of this case do not warrant nunc pro tunc allowance and payments of the claims. P.F. Three provides no evidence to show “exceptional circumstances” warranted allowance and payment of claims nunc pro tunc. See In re THC Financial Corp., 837 F.2d 389, 392 (9th Cir.1988).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Joseph Giannini (“Giannini”) appeals the district court’s order dismissing his appeal from the bankruptcy court’s judgment in favor of the State Bar of California (“State Bar”). Because the district court abused its discretion in dismissing Giannini’s appeal, we reverse.1
On July 21, 2003, Giannini, a pro se litigant, filed in the district court an appeal from the bankruptcy court’s determination that his debt to the State Bar was nondischargeable. The district court scheduled opening briefs due no later than February 25, 2004. Giannini filed an initial motion to vacate the bankruptcy court’s judgment on December 2, 2003, which the district court denied on January 30, 2004. On February 19, 2004, Giannini filed a renewed motion to vacate and a motion to continue the appellate briefing schedule until after the court ruled on Giannini’s renewed motion to vacate. As of March 25, the district court had neither ruled on Giannini’s renewed motion to vacate nor his motion for continuance of the briefing schedule. Yet on that date, the State Bar filed a motion to dismiss the appeal.
The district court denied Giannini’s motion to vacate and his motion to continue the appellate briefing schedule on April 6. Six days later, Giannini filed his opening appeal brief and an ex parte application to permit late filing. The district court, on April 26, granted the State Bar’s motion to dismiss based upon Local Rule Governing Bankruptcy Appeals, Cases and Proceedings 5.5, which states: “If an appellant fails to file a brief within the time provided by these rules, the district court may dismiss the appeal on its own motion or upon motion of the appellee.”
Giannini appeals the district court’s dismissal of his appeal, which we review for abuse of discretion. Fitzsimmons v. Nolden (In re Fitzsimmons), 920 F.2d 1468, 1471 (9th Cir.1990) (reviewing 'of dismissal for non-compliance with non-jurisdictional rules for abuse of discretion).
Dismissal is a harsh sanction. A court abuses its discretion when it dismisses a case for procedural non-compliance without consideration of “the impact of the sanction and the alternatives available .... ” See Myers v. Shekter (In re Hill), 775 F.2d 1385, 1387 (9th Cir.1985). It may be unnecessary, however, for a court to consider alternatives to dismissal in egregious circumstances of non-compliance. See Morrissey v. Stuteville (In re Morrissey), 349 F.3d 1187, 1190-91 (9th Cir.2003) (affirming dismissal imposed after egregious violations of local rules).
When a court sets deadlines, parties must strictly adhere to them. As Local Rule 5.5 provides, failure to follow these deadlines may justifiably result in dismissal. This case, however, presents special *581circumstances because Giannini’s potentially dispositive motion to vacate and motion for continuance remained pending when the State Bar filed its motion for dismissal. Furthermore, the district court dismissed Giannini’s appeal without explicit consideration of an alternative sanction. The court did not describe any egregious circumstances that might have justified dismissal without such consideration. Although the court noted when dismissing the appeal that it had previously denied Giannini’s request for continuance of the briefing schedule, the district court denied that continuance motion well after Giannini’s deadline for submission of his opening brief.
Once the district court issued its opinion denying Giannini’s renewed motion to vacate and to continue the briefing schedule, Giannini filed his opening brief within six days. Indeed, the district court dismissed the appeal after Giannini had already filed his brief. We do not see here egregious circumstances that justify dismissal in the absence of consideration of alternative sanctions.
In light of the foregoing, we reverse the district court’s dismissal of Giannini’s appeal as an abuse of discretion and remand this case to the district court for further proceedings.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. Giannini and the State Bar both improperly briefed before this court the merits of the bankruptcy court’s decision. The merits of the bankruptcy court’s decision are not before this court and we only decide here whether the district court’s dismissal of Giannini’s appeal for failure to comply with the briefing schedule constituted an abuse of discretion.
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ORDER
The memorandum disposition filed on October 13, 2006, is hereby amended by replacing paragraphs two and three on pages two and three and the amended memorandum disposition is filed in its stead.
With this amendment, the panel votes to deny appellant’s petition for panel rehearing and has recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are DENIED and no further petition shall be entertained.
AMENDED MEMORANDUM *
RW Squared Medical Group appeals the district court’s decision affirming the bankruptcy court’s denial of its claim against HWY Squared, Inc. in the latter’s Chapter 11 bankruptcy case. We affirm. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.
As RW Squared notes, “[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f). Upon objection, the proof of claim provides “some evidence as to its validity and amount” and carries over a “mere formal objection.” Lundell v. Anchor Const. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir.2000). The objector must produce sufficient evidence “tending to defeat the claim by probative force equal to that of *583the allegations in the proofs of claim themselves.” Id. (citing In re Holm, 981 F.2d 620, 623 (9th Cir.1991)). But where the proof of claim omits an essential element of the substantive claim, the objector “need only note the absence of any such showing, and does not require evidence in support.” In re Atwood, 293 B.R. 227, 233 (9th Cir. BAP 2003). The claimant then must “prove the validity of the claim by a preponderance of the evidence. The ultimate burden of persuasion remains at all times upon the claimant.” Lundell, 223 F.3d at 1039.
Here, RW Squared’s proof of claim failed to show that its alleged damages were proximately caused by the debtor’s breach of the Agreement. Although this proof of claim was strong enough to overcome a “mere formal objection,” HWY Squared’s objection was sufficient under Atwood to shift the burden back to RW Squared on the proximate causation issue. The bankruptcy court did not abuse its discretion in finding that RW Squared failed to establish its proof of claim in the absence of evidence of proximate causation and damages.
Next, RW Squared argues that the bankruptcy court abused its discretion by striking the Newman Declaration under Federal Rule of Evidence 1006 and denying RW Squared’s request to make an offer of proof. Rule 1006 provides that “[t]he contents of voluminous writings ... which cannot conveniently be examined in court may be presented in the form of a ... summary. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.” Here, RW Squared neither established that the records summarized in the Newman Declaration were voluminous nor made those records available to HWY Squared. Because RW Squared did not establish the proper foundation for this summary evidence, the bankruptcy judge did not abuse his discretion in excluding the declaration. See Amarel v. Connell, 102 F.3d 1494, 1516-17 (9th Cir.1999). Moreover, as the district court noted, RW Squared’s request for an offer of proof is better termed a request to prove damages through additional evidence. The bankruptcy judge did not abuse his discretion in refusing to permit RW Squared to present additional evidence that it should have offered during the hearing itself.
Finally, RW Squared claims the bankruptcy judge abused his discretion by denying its motion for reconsideration. To be granted reconsideration, RW Squared must show (1) newly discovered evidence, (2) clear error or manifest injustice in the initial decision, or (3) an intervening change in the law. Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). RW Squared bases its motion upon two declarations purporting to establish damages. But this evidence was available to RW Squared at the initial hearing. “[T]he failure to file documents in an original motion or opposition does not turn the late filed documents into ‘newly discovered evidence.’ ” Id. Therefore the court did not abuse its discretion by denying the motion for reconsideration.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
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PER CURIAM: *
The attorney appointed to represent Randall Westfall has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Westfall has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
In 1997 Marcella Richman’s son, Jack, a severely obese man, suffocated and died after deputy sheriffs used force in attempting to remove him from an Illinois state courthouse where he was resisting the officers and defying a judge’s order to leave. After two earlier appeals to this court, Richman v. Sheahan, 512 F.3d 876 (7th Cir.2008); Richman v. Sheahan, 270 F.3d 430 (7th Cir.2001), the case finally went to trial on the claims that the officers violated Jack’s rights under the Fourth and Eighth Amendments. A jury returned a verdict in favor of the defendants on all counts, and, after denying Richman’s motion for a new trial under Fed.R.Civ.P. 59(a), the district court entered judgment in their favor. On appeal Richman raises two arguments: The district court improperly admitted evidence of Jack’s prior arrest, and the jury ignored what Richman describes as compelling evidence of liability on the Fourth Amendment claim.
We begin with the district court’s decision to admit the evidence that Jack had been arrested once before. Richman testified that Jack had “never been treated as a criminal,” and the defendants responded with evidence of a prior arrest during which he knew not to resist. The defendants’ argue on appeal that Richman waived any challenge to the district court’s admission of the arrest by failing to raise it in her Rule 59 motion, but this argument is frivolous. Richman preserved the evidentiary point by making a contemporaneous objection. See Fed.R.Evid. 103(a)(1); Wipf v. Koioalski, 519 F.3d 380, 385 (7th Cir.2008). Nonetheless, the district court’s decision to admit evidence of Jack’s prior arrest was not an abuse of discretion. See United States v. Chavis, 429 F.3d 662, 669 (7th Cir.2005). Richman’s testimony implied that Jack had never been arrested and thus did not know how to behave when restrained. The defendants’ evidence that Jack had been arrested before, had gone quietly, and was not maltreated was probative to rebut Richman’s contentions. See United States v. Perkins, 548 F.3d 510, 514 (7th Cir.2008).
Riehman’s next argument on appeal— that the verdict in favor of defendants was unreasonable as a matter of law — fares no better. After the second appeal, we remanded this case for a trial precisely because the evidence could support a verdict for either side. Because the evidence in this case “was sufficient to pave a rational path to the jury’s finding,” Davis v. Wisconsin Dep’t of Corrections, 445 F.3d 971, 976 (7th Cir.2006), Richman is not entitled to judgment as a matter of law.
AFFIRMED.
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ORDER
Dimitre Djorov-Ivanov, a native and citizen of Bulgaria, was denied asylum and withholding of deportation in 1994. In 2000, the Board of Immigration Appeals dismissed his appeal, adopting the immigration judge’s reasoning that Djorov-Ivanov had not demonstrated a well-founded fear of persecution. Eight years later, Djorov-Ivanov filed a motion to reopen under the Convention Against Torture (“CAT”). The Board denied the motion as untimely. Djorov-Ivanov petitions for review, arguing that: (1) his motion to reopen should not be subject to timeliness regulations, and (2) he is prima facie eligible for relief under the CAT. For the following reasons, we deny the petition.
Djorov-Ivanov first argues that the Board erred in finding his motion to reopen untimely because, he contends, he “never had the opportunity to apply for relief’ under the CAT. Regulations implementing the CAT did not become effective until 1999. See 8 C.F.R. §§ 1208.16-1208.18. Djorov-Ivanov reads one of these, 8 C.F.R. § 1208.18(b)(1), to excuse untimely motions to reopen from aliens whose proceedings were pending at the time CAT regulations went into effect in 1999 from timeliness regulations because § 1208.18(b)(1) does not itself contain a timeliness provision, a position he claims to be supported by Kay v. Ashcroft, 387 F.3d 664 (7th Cir.2004).
As a threshold matter, we must consider whether we have jurisdiction to review Djorov-Ivanov’s petition. The government urges us to reach the merits, but motions to reopen are within the discretion of the Board and this court may not review them unless they raise legal questions, see 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D); Kucana v. Mukasey, 533 F.3d 534, 535-38 (7th Cir.2008), cert. granted, --- U.S. ---, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009). *685The timeliness of a motion to reopen is generally a factual question beyond the review of the court. See Johnson v. Mukasey, 546 F.Sd 403, 404-05 (7th Cir.2008). But the question whether § 1208.18(b)(1) exempts Djorov-Ivanov’s petition from timeliness regulations is a legal one, and thus we may review the petition.
Returning to the merits, Kay does not help Djorov-Ivanov. In that case, we made clear that Kay’s motion to reopen under the CAT was timely because he filed it before the deportation order became final, see Kay, 387 F.3d at 672-73; Djorov-Ivanov, by contrast, waited eight years after his proceedings became final before filing his motion. More importantly, though, Kay makes clear that motions to reopen under the CAT are subject to general timeliness provisions. See Kay, 387 F.3d at 671-73.
Aliens are generally permitted to file one motion to reopen a deportation proceeding within 90 days of the Board’s decision on appeal, when the order becomes final. 8 C.F.R. § 1003.2(c)(2). Though CAT regulations made a limited exception for aliens whose proceedings became final before the regulations went into effect in 1999, see id. § 1208.18(b)(2), no additional exceptions were made for motions to reopen under the CAT, see id. §§ 1208.16-1208.18 (regulations implementing the CAT). And contrary to Djorov-Ivanov’s assertion that he never had a chance to apply for relief under the CAT, Djorov-Ivanov could have filed a motion to reopen under the CAT at any time after the regulations went into effect in 1999, during the pendency of his appeal to the Board. See 8 C.F.R. §§ 1208.18(b)(1), 1003.2(c)(4); Kay, 387 F.3d at 671-72. Once the Board affirmed and the deportation order became final on August 2, 2000, Djorov-Ivanov had an additional 90 days to file his motion to reopen — until October 31, 2000. He failed to do so and lost his opportunity.
While the CAT regulations do not, as Djorov-Ivanov urges, create any special exception to timeliness regulations, a general exception for motions to reopen does exist for “changed circumstances arising in the country of nationality.” See 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C). But Djorov-Ivanov did not allege changed country conditions in his motion to reopen, and he concedes on appeal that he doesn’t seek to prove changed country conditions.
Djorov-Ivanov also contends that his motion to reopen should be granted because he has presented a prima facie case for relief under the CAT. But the Board denied the motion on timeliness grounds, noting only in passing that Djorov-Ivanov had not demonstrated a prima facie case for relief.
Because the Board did not abuse its discretion when it found Djorov-Ivanov’s motion untimely, the petition for review is DENIED.
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ORDER
Nancy Hayes pleaded guilty to making a false statement on an application for a United States passport, see 18 U.S.C. § 1542. Because she obtained the passport as part of a larger scheme in which she abducted her daughter and took her to Mexico, the district court followed across-reference in Chapter 2 of the Sentencing Guidelines for the § 1542 violation and instead calculated her guidelines’ imprisonment range as if she had been convicted of international parental kidnapping, see 18 U.S.C. § 1204. In this appeal Hayes argues that the district court erred in following the cross-reference and then compounded the mistake by misapplying two upward adjustments in the Chapter 2 guideline for § 1204. Hayes further argues that the court should have reduced her prison term by the amount of time she resided in a halfway house as a condition of her pretrial release. Because we conclude that the district court correctly calculated the guidelines range and imposed a reasonable sentence, we affirm.
I. Background
In 2004 Hayes lost custody of her daughter and was permitted only supervised visitation. At that time the girl’s father was given sole custody. The details of the custody dispute are unclear from the record, but at sentencing the father testified that Hayes is a “gestational surrogate” and has no biological connection to the girl. The parties did not formalize their surrogacy arrangement though, and Hayes apparently had second thoughts on the matter. Consequently, as the birth mother, Hayes retained custody for four years before the father went to court and secured visitation and, ultimately, sole custody.
Hayes fought in state court to recover the right to visit her daughter without supervision. But she also made plans to begin a new life with her daughter in Mexico, and in February 2006 she walked into a post office in Northwest Indiana and used another woman’s name and birth certificate to apply for a passport, which she received. She also procured a fraudulent Indiana driver’s license in the same name. Hayes obtained books and articles on parental abduction, as well as information about applying for Mexican citizenship, and made arrangements to stay in a friend’s vacation home in Mexico. She emptied her retirement account, stopped making her mortgage and car payments, and placed approximately $160,000 in the same friend’s bank account, which she could access using a debit card in the friend’s name. Hayes then boxed up her possessions and placed them in storage at the friend’s primary residence in Indiana. In July 2007, having finally secured court-authorized, unsupervised visitation with her daughter, Hayes abducted the girl, then 10 years old, and took her to Mexico.
When Hayes did not return the child to her father, Illinois police and the FBI launched a criminal investigation. Two Lincolnshire, Illinois police detectives spent over three weeks investigating the abduction and ultimately tracking Hayes *688to Mexico. In Mexico the FBI worked with local officials to watch the home where Hayes and her daughter were living and arrest Hayes. Hayes initially tried to convince the agents that she was the person named in the fraudulent passport but eventually admitted her true identity and was returned to the United States. She pleaded guilty to child abduction in Illinois state court and was sentenced to three years’ imprisonment. She served a total of 12 and one-half months before she was paroled.
Hayes then was taken into custody in the Northern District of Indiana on the charge that she made a false statement on the passport application. The district court released Hayes on bond with the condition that she reside at Bradley House, a halfway house in Michigan City, Indiana. Hayes pleaded guilty and continued to reside at Bradley House while awaiting sentencing.
The probation officer who prepared the presentence investigation report (“PSR”) applied U.S.S.G. § 2L2.2, the guideline applicable to the passport violation. But that guideline includes a cross-reference to U.S.S.G. § 2X1.1 for cases where the defendant “used a passport ... in the commission or attempted commission of a felony offense.” U.S.S.G. § 2L2.2(c)(l). Section 2X1.1, which broadly applies to attempts, solicitations, and conspiracies not covered elsewhere in Chapter 2, in turn directs the sentencing court to apply the “base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” Id. § 2Xl.l(a). The PSR noted that Hayes had “used” the fraudulent passport to commit international parental kidnapping. That felony is defined in 18 U.S.C. § 1204, which makes it a federal crime to remove a child from the United States “with intent to obstruct the lawful exercise of parental rights.” The PSR then turned to U.S.S.G. § 2J1.2, which is titled “Obstruction of Justice” but is the guideline applicable to parental kidnapping. The PSR started with a base offense level of 14 and added 3 levels under § 2J1.2(b)(2) because the offense had resulted in “substantial interference with the administration of justice.” Two more levels were added under § 2Jl.2(b)(3) because the offense was extensive in scope, planning, and preparation.
In the initial draft of the PSR, the probation officer did not explain the factual basis for either increase in offense level under § 2J1.2(b), and Hayes objected to both, as well as to the application of the cross-reference. With respect to the cross-reference, Hayes argued that her “use” of the passport was not established because she did not present it to Mexican officials when she crossed the border. She further argued that the facts did not support an increase for substantial interference with the administration of justice or the scope of the offense. The government responded that whether Hayes used the passport to cross the border was irrelevant because she obtained it to facilitate the kidnapping. And the upward adjustments were justified, the government continued, because, as to subsection (b)(2), Hayes had violated the state-court custody order and caused law-enforcement agencies to expend substantial time and resources to find and return the child. As to subsection (b)(3), the government noted that Hayes had spent months preparing for the kidnapping by securing the passport and other identification documents, closing bank accounts, ceasing her mortgage and car payments, and recruiting her friend to assist in the kidnapping.
The probation officer then revised the PSR to endorse the government’s explana*689tions for the cross-reference and proposed adjustments. With respect to the increase under § 2J1.2(b)(2), the commentary to the guideline defines “substantial interference” to include the “unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2 cmt. n. 1. Citing that language, the revised PSR recommended the increase because Hayes’s violation of the state custody order and flight to Mexico had prompted a 20-day investigation by multiple agencies in two countries.
The district court overruled Hayes’s objections. The court adopted the facts in the PSR and ruled that they “unequivocally” established that Hayes had falsely obtained a passport for the commission of a kidnapping offense. Thus, the court concluded, the cross-reference in § 2L2.2(c)(l)(A) directed the court to apply § 2J1.2, the guideline for the kidnapping. Next, the court concluded that Hayes qualified for the 3-level increase under § 2J1.2(b)(2) for substantially interfering with the state court’s administration of justice in a custody proceeding. By taking the child all the way to Mexico, the court explained, Hayes’s interference with the court order was substantial. The court reasoned that this “was not a case of failing to return the child over the weekend, or even taking the child to another town.” Instead, the court continued, Hayes had chosen “to violate a State Child Custody Order and remove both herself and the child out of the country.” The court further concluded that Hayes’s “planning and preparation for the kidnapping were extensive in scope” and therefore warranted the additional two-level increase under § 2J1.2(b)(3). The resulting total offense level of 17, coupled with Hayes’s category I criminal history, yielded a guidelines’ imprisonment range of 24 to 30 months. Hayes, though, already had served 12 and one-half months in Illinois for child abduction, so the court applied U.S.S.G. § 5K2.23, which encourages a below-range sentence if the defendant has completed a term of imprisonment for related conduct. The court concluded that a sentence within the range, less time served for the state offense, was appropriate and imposed a prison term of 12 months and 1 day.
II. Discussion
On appeal Hayes argues that the district court incorrectly calculated her offense level using the base offense level and adjustments in § 2J1.2 instead of applying § 2L2.2. She fails to acknowledge, however, that the court applied § 2J1.2, the guideline for international parental abduction, by way of the cross-reference in § 2L2.2(c). That cross-reference states that if the defendant “used” the fraudulent passport “in the commission or attempted commission of a felony offense, other than an offense involving violation of the immigration laws, apply ... § 2X1.1.” Section 2Xl.l(a), in turn, directs the sentencing court to apply the applicable guideline for the underlying felony offense. See United States v. Bernard, 373 F.3d 339, 341 (3d Cir.2004) (describing generally the operation of the cross-reference under § 2L2.2(c) and § 2X1.1).
As for the cross-reference, Hayes renews her contention that it was error to apply § 2J1.2 because she did not present the fraudulent passport to enter Mexico and thus it was never “used.” But she cites no authority, and we have found none, supporting a rule that the cross-reference cannot apply unless the defendant actually presented the fraudulent passport to border authorities. The district court’s factual finding that the passport was “used” in the commission of the kidnapping is not clearly erroneous. Hayes obtained the passport to facilitate and conceal her presence in Mexico, she *690carried it with her to Mexico, and when apprehended she tried to convince authorities that she was the person named in the passport. That is enough to support the district court’s finding that she “used” the passport in the commission of the kidnapping.
Once the district court determined that Hayes had used the passport in the commission of the international kidnapping offense, the guidelines dictated that her offense level be determined based on the specific characteristics of the kidnapping. See U.S.S.G. § 2X1.1(a) (instructing sentencing court to apply the “guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct”); United States v. Samuels, 521 F.3d 804, 815-16 (7th Cir.2008); United States v. Almaguer, 146 F.3d 474, 476 (7th Cir.1998); United States v. Ellison, 113 F.3d 77, 82 (7th Cir.1997); United States v. Corbin, 998 F.2d 1377, 1383-85 (7th Cir.1993). Hayes argues that the court erroneously applied the two-level increase under § 2J1.2(b)(3)(C) because the passport offense was not “extensive in scope, planning, or preparation.” The issue before the district court, however, was whether the kidnapping was extensive in scope, planning, or preparation, and Hayes makes no attempt to challenge the court’s finding in this regard.
Hayes’s next argument falls closer to the mark but is still unavailing. Hayes contends that the district court erred when it applied the three-level increase under § 2J1.2(b)(2) on the ground that the kidnapping resulted in a substantial interference with the administration of justice. The commentary to § 2J1.2 defines substantial interference to include, as relevant here, the “unnecessary expenditure of substantial governmental ... resources.” U.S.S.G. § 2J1.2 cmt. n. 1. As Hayes notes, several circuits have held that resources expended in the investigation and prosecution of the offense itself cannot form the basis for the increase in offense level under § 2Jl.2(b)(2). See United States v. Johnson, 485 F.3d 1264, 1271-72 (11th Cir.2007) (noting that upward adjustment could not be based on “expenses associated with prosecuting [the] underlying perjury offense”); United States v. Norris, 217 F.3d 262, 273 (5th Cir.2000) (concluding that “expenses incurred with the investigation and prosecution” of defendant’s perjury offense may not be considered, “[o]therwise, every perjury conviction would carry this enhancement”); United States v. Sinclair, 109 F.3d 1527, 1539 (10th Cir.1997); United States v. Duran, 41 F.3d 540, 546 (9th Cir.1994); United States v. Jones, 900 F.2d 512, 522 (2d Cir.1990). In light of these cases, Hayes argues that the district court improperly based the upward adjustment on the resources expended by the government investigating the international parental kidnapping, traveling to Mexico, and returning her and her daughter to the United States.
The district court nominally based the increase on Hayes’s interference with the state-court custody order, but as a practical matter the court applied the adjustment because of the time and expense of investigating the kidnapping. The district court reasoned that the interference with the custody order was substantial because Hayes took the child to Mexico, as opposed to simply “failing to return the child over the weekend, or even taking the child to another town.” But taking the girl out of the country to Mexico is the only reason that § 1204 and the cross-reference to § 2J1.2 are even relevant to this prosecution for passport fraud, so it is difficult to see how the manner in which Hayes violated the custody order could have made the interference with that order any more or less substantial unless “substantial” is measured against the time and expense involved in getting the girl back. If the *691interference with the custody order was substantial simply because the kidnapping was international — as the court seems to suggest — then every violation of § 1204 would trigger application of § 2Jl.2(b)(2) if there is an order of custody in place. Perhaps recognizing this, the government shifts course on appeal and rather than focusing on Hayes’s interference with the state-court order, simply contends that the substantial resources expended to investigate the kidnapping justify the increase in offense level.
This circuit has not yet addressed the application of § 2J1.2(b)(2) within the context of a § 1204 prosecution. In fact, we have found few cases involving this offense and even fewer addressing the increase in offense level under subsection (b)(2). In United States v. Amer, 110 F.3d 873, 885 (2d Cir.1997), the Second Circuit held that the upward adjustment was warranted where the government did not conduct an extensive investigation or attempt to retrieve the children but the defendant “prevented proper legal proceedings from occurring” by removing his children from the country before his estranged wife could seek custody. The Eleventh Circuit has also upheld the application of subsection (b)(2) in a nonprecedential decision where the defendant instituted fraudulent state-court divorce and custody proceedings and also caused the FBI to obtain an arrest warrant, fly to Honduras to retrieve him and the child, investigate his real identity, and develop the case against him. United States v. Tomaskovic, 275 Fed.Appx. 884, 887 (11th Cir.2008).
Although we have not had occasion to address the application of § 2Jl.2(b)(2) in the context of § 1204, we have discussed the application of the guideline in several obstruction-of-justice cases. And in that context we have not distinguished between the resources expended in the investigation and prosecution of the defendant’s offense and any other expenses necessary to address the additional consequences of that offense. Instead, we have approved the application of the upward adjustment where the district court based its findings, at least in part, on expenditures that were arguably necessary to the investigation and prosecution of the underlying crime. See United States v. Tankersley, 296 F.3d 620, 623-24 (7th Cir.2002) (upholding upward adjustment under § 2J1.2(b)(2) for criminal contempt conviction where defendant’s sale of yacht in violation of court order caused government and court-appointed receiver to expend substantial resources to investigate the defendant’s actions and locate yacht); United States v. Bradach, 949 F.2d 1461, 1463 (7th Cir.1991) (concluding that increase was justified for perjury conviction where defendant’s perjury and subornation of perjury from three others not only impaired grand-jury proceedings but “necessitated four perjury-related trials,” including the defendant’s own trial); United States v. Lueddeke, 908 F.2d 230, 234 (7th Cir.1990) (upholding application of § 2J1.2(b)(2) to perjury conviction because defendant’s perjury caused government agents to spend two weeks “trying to sort out the truth”). In Tankersley we rejected the defendant’s argument that the sentencing judge had “double counted” by basing the upward adjustment on the same conduct that led to his underlying prosecution for criminal contempt. 296 F.3d at 624. As we explained, the defendant committed criminal contempt and was sentenced under § 2J1.2 for selling his yacht and trying to hide the proceeds in violation of a court order, and he was given the increase because his conduct caused the government to expend substantial resources tracking down and determining what happened to the yacht. Id.
In light of our approach to similar applications of § 2Jl.2(b)(2) and the application *692of the upward adjustment in the very few cases to address the issue in the kidnapping context, we reject Hayes’s argument. As in Tankersley, Hayes was sentenced under § 2J1.2 because she kidnapped her daughter to Mexico, and the upward adjustment applied because her conduct resulted in the substantial expenditure of governmental resources to find and return Hayes and the girl. See 296 F.3d at 624. Thus, the district court’s increase of Hayes’s offense level under § 2J1.2(b)(2) was not an erroneous application of that guideline.
Finally, Hayes’s last argument— that the district court should have further reduced her prison sentence to compensate for the nearly eight months she resided at the halfway house as a condition of her bond — lacks merit. Hayes contends that her halfway-house confinement was equivalent to serving time on the false-passport charge, and thus at the end of her prison term, she will have served more time in prison “than minimally sufficient to achieve the broad goals of sentencing.” In her view the district court should have applied U.S.S.G. § 5G1.3 to reduce her prison sentence by the amount of time she spent at the halfway house.
But § 5G1.3 was not applicable to Hayes’s pretrial residency in the halfway house because by then her “term of imprisonment” for the related state conviction had been completed and her presence in the facility had nothing to do with that conviction. See U.S.S.G. § 5G1.3(b); Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Moreover, the district court imposed a prison sentence within the correctly calculated guidelines range (minus the time served in prison on the state charge), and that sentence is presumptively reasonable. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, (2007); United States v. Williams, 553 F.3d 1073, 1083-84 (7th Cir.2009). That the sentencing court did not give Hayes an even bigger break based on her halfway-house confinement was not an abuse of discretion. Cf. Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989) (deferring to BOP policy that time served at halfway house prior to trial does not constitute “custody” for purposes of statute permitting credit for time served).
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476272/
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ORDER
Following a two-day trial, a jury found Scott Hatfield guilty of possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and he was sentenced to a below-guidelines term of 84 months in prison. Hatfield appeals, but his appointed counsel reports that he cannot identify any nonfrivolous issues on appeal and therefore seeks to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s supporting brief is facially adequate, and Hatfield did not respond to our invitation to comment on his lawyer’s submission. See Cir. R. 51(b). We confine our review *694to the five potential issues identified in counsel’s brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).
Police executed a search warrant of Hatfield’s home looking for evidence of illegal downloads of child pornography and found a home office full of computer equipment. After receiving Miranda warnings, Hatfield explained that he ran a computer business from his home but used one of the “downloader” towers in the room specifically for his personal file-sharing activities. Police took this tower to a mobile forensic laboratory parked in front of Hatfield’s home for further examination. Hatfield initially admitted using a file-sharing program to download music, games, movies, and adult pornography. But when he learned that police were examining the tower outside, he quickly confessed to downloading child pornography. He described some of the images that would be found on the tower and also acknowledged using search terms such as “Lolita” and “PTHC” that were known to police to return links to child pornography. Hatfield told the officers that he also burned some of this content on CDs and DVDs that he marked with an “X.” Police took Hatfield to the mobile lab, and he identified several illegal video clips from the tower.
Police seized the downloader tower, a number of loose hard drives, and a CD and DVD marked with an “X.” The materials then were turned over to a forensic computer examiner, who found thousands of images of child erotica and child pornography and 58 illegal videos, all saved in a file-sharing folder on the downloader tower. Hatfield was charged with knowing possession of the 58 videos, including 12 specifically listed in the indictment.
Before trial Hatfield stipulated both to the requisite interstate-commerce nexus and to the fact that the 58 videos and other seized images and files fit the legal definition of child pornography. But the government correctly anticipated that Hatfield would try to imply that his computer equipment had been compromised by someone who downloaded the child pornography without his knowledge. To combat this defense the government filed a pretrial motion announcing its intent to introduce uncharged materials under Federal Rule of Evidence 404(b), including a sex video of Hatfield and his wife found in the same file-sharing folder as the 58 charged videos, and additional child pornography found on the marked CD and DVD and in the “recycle bin” of one of the loose hard drives. Hatfield conceded that the material was relevant to issues other than propensity, but argued that the prejudicial effect would far outweigh any probative value. The district court concluded that the uncharged material was admissible so long as limiting instructions were given to cabin the jury’s consideration of the evidence.
During trial Special Agent Michael Johnson testified about the results of the police search of Hatfield’s home, and he described his lengthy interview with Hatfield, including Hatfield’s admissions. Sergeant Jennifer Barnes, the forensic computer examiner, explained that the configuration of the files on the down-loader precluded the possibility that an outside party was to blame. She testified that Hatfield’s personal files, including the sex video of him and his wife, were commingled with the illegal videos. Barnes also explained that the passwords and registration names on the download-er tower matched those Hatfield used on other computer equipment, including the loose hard drive containing more child pornography. These identifiers were all variations of Hatfield’s initials or the names associated with his home business. Barnes testified that the log of Hatfield’s search terms included many associated with child pornography and several that *695matched the terms Hatfield admitted using to police. Brief clips of the 12 videos listed in the indictment were played for the jury, but the government did not publish the uncharged material described in its pretrial motion. Instead, Barnes described the items and explained how their nature and location demonstrated that the downloads were not accidental. Hatfield did not take the stand, choosing instead to have counsel suggest on cross-examination and in closing argument that someone else could have been responsible for the downloads.
The jury found Hatfield guilty, and at his sentencing hearing he expressed remorse for his actions. The district court calculated a guidelines imprisonment range of 108 to 120 months, but Hatfield’s sincerity, his compliant behavior while on pretrial release, and his rededication to his family, his church, and his work did not go unnoticed, and the court settled on a below-guidelines range of 84 months in prison.
In his Anders submission counsel first considers whether Hatfield could argue that the district court erred in admitting Barnes’s descriptions of the uncharged material. We would review the court’s evidentiary ruling for an abuse of discretion, United States v. Zahursky, 580 F.3d 515, 523 (7th Cir.2009), and we agree with counsel that this argument would be frivolous. Evidence of other acts may not be offered to establish a propensity for criminal behavior, but may be used to prove the defendant’s knowledge, intent, motive, or absence of mistake. Fed.R.Evid. 404(b); United States v. Conner, 583 F.3d 1011, 1021 (7th Cir.2009). Because Hatfield wanted the jury to believe he was ignorant about the child pornography on his computer equipment and storage media, the district court reasonably determined that Barnes’s limited description of the uncharged materials was relevant to corroborate Johnson’s testimony about Hatfield’s statements and to show Hatfield’s cyber-fingerprints on all the seized computer materials. See United States v. Ganoe, 538 F.3d 1117, 1123-24 (9th Cir.2008), cert denied, — U.S. ---, 129 S.Ct. 2037, 173 L.Ed.2d 1122 (2009) (agreeing with district court that testimony about sexually explicit names and storage configuration of child-pornography files on defendant’s computer was relevant to establishing defendant’s knowledge of their content); United States v. MoralesAldahondo, 524 F.3d 115, 120 (1st Cir.), cert denied, — U.S. —, 129 S.Ct. 512, 172 L.Ed.2d 376 (2008) (explaining that testimony about how defendant organized and named computer files containing child pornography was relevant to proving knowledge and absence of mistake); United States v. Dodds, 347 F.3d 893, 898 (11th Cir.2003) (noting that defendant’s placement of images of child pornography in self-title computer files belied claim of ignorance). Any risk of prejudice from this evidence was minimized by the government’s decision to have Barnes describe these items instead of publishing them to the jury and by the limiting instructions given before Barnes’s testimony and again before deliberations. See United States v. Lee, 558 F.3d 638, 649 (7th Cir.2009).
Counsel also evaluates whether Hatfield could argue that the district court abused its discretion in allowing the jury to view clips of the charged videos when he already stipulated that each fit the legal definition of child pornography. Based on the Supreme Court’s ruling in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), counsel explains, Hatfield could argue that the videos were highly prejudicial and his stipulation obviated the government’s need to show them to the jury.
*696In Old Chief — a case involving possession of a firearm by a felon — the Supreme Court reversed the defendant’s conviction because the district court had admitted his prior criminal record into evidence despite his stipulation to a prior felony conviction. 519 U.S. at 174, 117 S.Ct. 644. Although both the stipulation and the direct evidence of the defendant’s criminal record carried the same evidentiary value, the Court noted that there was an inherent risk of prejudice in using his record given the nature of the defendant’s previous felony, and thus his stipulation should have been accepted as an adequate substitute. Id. at 191, 117 S.Ct. 644. But stipulations generally cannot substitute for the government’s chosen evidence. Id. at 186, 117 S.Ct. 644. In United States v. Phillippi, 442 F.3d 1061, 1064 (7th Cir.2006), we explained that the holding of Old Chief is limited to cases where the defendant’s status as a felon is at issue. And other circuits have explicitly stated that arguments based on Old Chief are not persuasive in the context of child-pornography prosecutions. See, e.g., United States v. McCourt, 468 F.3d 1088, 1091-92 (8th Cir.2006); United States v. Campos, 221 F.3d 1143, 1149 (10th Cir.2000). Although prejudicial, the clips of the 12 videos were not unfairly so, and because they were central to the charged conduct the government had the right to present them to the jury. See, e.g., United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir.2009); Morales-Aldahondo, 524 F.3d at 120; Dodds, 347 F.3d at 898-99; United States v. Raney, 342 F.3d 551, 560 (7th Cir.2003); United States v. Angle, 234 F.3d 326, 343 (7th Cir.2000).
Counsel next assesses whether Hatfield could argue that the government’s evidence was insufficient to support his conviction. We would review this issue under the plain error standard because Hatfield did not move for a judgment of acquittal. See Fed.R.Crim.P. 29; United States v. Squibb, 534 F.3d 668, 671 (7th Cir.2008). We would review the record to determine if it is “devoid of evidence pointing to guilt, or if the evidence on a key element was so tenuous that a conviction would be shocking.” United States v. Allen, 390 F.3d 944, 948 (7th Cir.2004). Counsel correctly concludes, however, that there was more than enough evidence to support the jury’s verdict. Based on Hatfield’s statements to authorities, the overwhelming physical evidence recovered from his home, and the extensive testimony from police officers linking the illegal material to Hatfield, we agree with counsel that a sufficiency argument would be frivolous.
Counsel also considers whether Hatfield could challenge the reasonableness of his prison sentence. But counsel has not found any basis to contest the district court’s application of the guidelines, nor does counsel identify any mitigating factor that was ignored by the court. We have never declared a below-range sentence to be unreasonably high, see United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and we see nothing in this record that would make Hatfield’s the first.
Finally, counsel asks whether Hatfield could make a claim of ineffective assistance of counsel. Counsel correctly notes, however, that Hatfield should save any such claim for collateral review where a complete record can be made. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 558 (7th Cir.2005).
We therefore GRANT the motion to withdraw and DISMISS Hatfield’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/8476276/
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ORDER
When he entered the United States unlawfully two decades ago, Mexican citizen Rafael Perez-Rodriguez bought a Social Security number and other personal identifiers stolen from Arthur Guajardo, whose name the defendant has used ever since. Federal authorities finally caught up with him in 2008 and charged him with wire fraud, 18 U.S.C § 1343; use of a passport obtained with a falsified application, id. § 1542; aggravated identity theft, id. § 1028A(a)(l); and fraudulent possession of five or more identification documents, id. § 1028(a)(3). A jury found the defendant guilty on all counts, and the district court sentenced him to a total of 57 months’ imprisonment. Perez-Rodriguez appeals, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perez-Rodriguez opposes counsel’s motion. See CIR. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief and in Perez-Rodriguez’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Arthur Guajardo, an Indiana resident, discovered in 2004 that another man was using his identity. That same year a detective from Blue Island, Illinois, interviewed the defendant, who — representing himself as Guajardo — acknowledged the real Guajardo’s accusation of identity theft but insisted he was using his own (but identical) name, date of birth, and Social Security number. Then in 2007 federal investigators began examining applications for federal and state identification documents issued in Guajardo’s name, including Social Security cards, U.S. passports, and an Illinois driver’s license and state I.D. In 1990 a new Social Security number ending in “4743” had been issued to someone using Guajardo’s name but claiming to be a Mexican citizen born one year earlier, but then in 1992 the holder of the “4743” number applied for a replacement card using Guajardo’s actual date and place of birth and the names of his parents but an address in Blue Island; that 1992 application resulted in the Social Security number first issued to Guajardo in 1978 when he was 15 years old being reissued to the holder of the “4743” number in Blue Island. That address in Blue Island was also used on passport applications submitted in 1994 and 2005 in Guajardo’s name with his date of birth and Social Security number.
*703When agents executed a search warrant in May 2008 at the address on file for Guajardo’s Illinois driver’s license, they found the defendant along with copies of Guajardo’s birth certificate, the “4748” Social Security card, the passports issued in 1994 and 2005, an Illinois state I.D., a Michigan state I.D. with Guajardo’s true Social Security number, and a student I.D. from Moraine Valley Community College in Illinois. All of the documents are in the name of Arthur Guajardo, but those with photographs depict Perez-Rodriguez. Inside the house agents also found a Mexican passport and birth certificate in the defendant’s name, as well as a 1997 letter from the IRS addressed to “Arthur Guajardo” in Chicago alerting him that he was using a Social Security number assigned to a different person. Another letter found during the search, this one from 1994, was written by the defendant using his Guajardo alias and represents to the Child Support Division of the prosecutor’s office in Lake County, Indiana, that he was aware that he and another man had “identical names” but he was not the one who owed child support.
The government recounted this investigation at trial. It also introduced evidence that the defendant had attended Moraine Valley under the name Guajardo between 2001 and 2004. He helped finance his education with more than $6,000 in federal aid obtained using Guajardo’s date of birth and Social Security number. And the defendant’s former girlfriend, Margarita Santamaría, testified that she knew him both as Perez-Rodriguez and Guajardo; she recounted that he presented a U.S. passport in Guajardo’s name when the couple landed at O’Hare International Airport in January 2007 after a trip to Mexico. The real Arthur Guajardo testified that he never lived in Illinois, never had a driver’s license or state I.D. issued in Illinois, never applied for a Social Security card after his first and only application in 1978, never applied for a passport or traveled outside the United States, and never attended college. The defendant did not offer any evidence.
In his Anders submission counsel evaluates whether Perez-Rodriguez could challenge the sufficiency of the evidence underlying his convictions. We would uphold the jury’s verdict unless no rational trier of fact could have concluded, based on the evidence viewed in the light most favorable to the prosecution, that all of the elements of the charged crimes were proved beyond a reasonable doubt. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008).
The defendant’s conviction for wire fraud was based on his use of Guajardo’s identity to apply for and receive federal financial aid from the Department of Education; the funds were transferred by interstate wire to accounts held by Moraine Valley. The government’s evidence that the defendant lied in financial-aid applications to obtain money through programs for which he was ineligible was more than ample to prove that he devised and executed a scheme to defraud. See 18 U.S.C. § 1343; United States v. Powell, 576 F.3d 482, 490-91 (7th Cir.2009). Likewise, the evidence offered to prove that Perez-Rodriguez used a passport obtained with a false application was ample; a passport in Guajardo’s name was issued to the defendant after he lied about his identity in the application, and then in January 2007 he presented that fraudulent passport at O’Hare to reenter the country from Mexico. See 18 U.S.C. § 1542; United States v. Connors, 441 F.3d 527, 531 (7th Cir.2006). And as far as the charge that Perez-Rodriguez possessed and intended to use at least five forms of false identification, the documents recovered during the search of his house provided overwhelming evidence. See 18 U.S.C. § 1028(a)(3); United States v. Campa, 529 F.3d 980, *7041003 (11th Cir.2008). As counsel says, a sufficiency challenge to any of these convictions would be frivolous.
Counsel also concludes that it would be frivolous to lodge a sufficiency challenge against the defendant’s convictions for aggravated identity theft. As relevant here, 18 U.S.C. § 1028A(a)(l) makes it a crime to use or possess without authorization “a means of identification of another person” to commit a felony enumerated in subsection (c) of the statute. See Flores-Figueroa v. United States, — U.S. ---, ---, 129 S.Ct. 1886, 1894, 173 L.Ed.2d 853 (2009); United States v. Cox, 577 F.3d 833, 838 (7th Cir.2009). Perez-Rodriguez was charged with two counts: the first for using Guajardo’s name and date of birth in relation to his § 1542 offense at O’Hare in January 2007, and the second for using and possessing Guajardo’s name, date of birth, and Social Security in relation to the § 1028(a)(3) offense committed in May 2008. Names, dates of birth, and Social Security numbers are all means of identification, 18 U.S.C. § 1028(d)(7)(a), and both § 1542 and § 1028(a)(3) are enumerated felonies, see 18 U.S.C. § 1028A(c)(4), (c)(7); United States v. Gomez, 580 F.3d 1229, 1233 (11th Cir.2009); United States v. Guillen-Esquivel, 534 F.3d 817, 817 (8th Cir.2008). As counsel notes, the government also had to prove that Perez-Rodriguez knew he was using identifiers belonging to a real person, see Flores-Figueroa, 129 S.Ct. at 1888-89, but an argument that he did not would be frivolous. The defendant possessed a copy of Guajardo’s birth certificate, he had used the information on that certificate to obtain the Social Security number assigned to Guajardo, he had been told by the IRS that the Social Security number he was using was assigned to someone else, he had told the prosecutor’s office in Lake County, Indiana, that he knew about the “other” Arthur Guajardo, and he had fended off the Blue Island police when they investigated the real Guajardo’s allegation that the defendant had stolen his identity. The jury was correctly instructed on this knowledge element, and though Perez-Rodriguez asserts in his Rule 51(b) response that he did not know at the outset that Guajardo was a real person, the evidence shows that he certainly knew in 2007 and 2008 when he committed the two violations of § 1028A.
Counsel next discusses whether Perez-Rodriguez could argue that the district court abused its discretion by granting the government’s pretrial motion to introduce his 1990 and 1992 applications for social security numbers, his 1994 passport application, his letter concerning the child-support matter, and his statements to the Blue Island detective. Counsel concludes that his potential argument would be frivolous, and we agree. The government proceeded cautiously because it was concerned that this evidence might be viewed as “other crimes” evidence, see Fed.R.Evid. 404(b), but the district court correctly recognized that all of the evidence was direct proof of the charged crimes. See United States v. Edwards, 581 F.3d 604, 608 (7th Cir.2009); United States v. Lane, 323 F.3d 568, 581 (7th Cir.2003).
Counsel also considers whether Perez-Rodriguez could challenge his overall prison sentence. In arriving at a total of 57 months, the district court first imposed concurrent terms of 21 months for the violations of § 1343, § 1542, and § 1028(a)(3). The court then imposed mandatory, two-year prison terms on the convictions for aggravated identity theft. See 18 U.S.C. § 1028A(a)(l). By statute, the district court was required to run the first of those terms consecutively to the prison sentences on the other three counts, id. § 1028A(b)(2), but the court retained the discretion to run the second 24-month *705term partly or wholly concurrently with the first, id. § 1028A(b)(2). The court chose to make the terms run together for 12 of the 24 months, for a total of 36 months.
We agree with counsel that any challenge to this sentencing scheme would be frivolous. Twenty-one months is within the guidelines range calculated by the district court for the counts that did not carry mandatory terms, and counsel has not identified any potential error in the court’s application of the guidelines. A sentence within the guidelines range is presumed reasonable, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007), so in the absence of a strong rebuttal to that presumption, a challenge based on the length of this portion of the sentence would be frivolous. And in settling on total incarceration of 57 months, the court evaluated all of the arguments in mitigation made by Perez-Rodriguez but concluded that the duration of his criminal conduct, when viewed in relation to the harm it caused Guajardo, foreclosed a more lenient sentence. Counsel sees nothing unreasonable in that conclusion, nor do we.
Accordingly, we Grant the motion to withdraw and Dismiss the appeal.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476278/
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ORDER
Hua Chen, a citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals denying his motion to reopen deportation proceedings. We deny the petition to the extent that we have subject-matter jurisdiction.
Chen entered the United States without valid entry documents in 1990. In 1993 he applied for asylum, withholding of deportation, and protection under the Convention Against Torture, claiming that he had a well-founded fear of persecution if he returned to China because he participated in pro-democracy demonstrations in 1989 and then illegally fled the country. After numerous continuances and a change of venue, Chen’s application was finally adjudicated in 2000. The immigration judge denied all relief and issued a deportation order. The Board of Immigration Appeals affirmed the decision in 2002, but Chen remained in the United States.
In 2008 Chen filed a motion through counsel asking the Board to reopen his deportation proceedings in light of what he characterizes as “new and previously unavailable” evidence of changed country conditions. See 8 U.S.C. *707§ 1229a(c)(7)(C)(ii). At the time he filed this motion, Chen was in removal proceedings under a different name that he apparently gave to police in Chicago after a traffic stop. In the motion Chen alleges that his girlfriend gave birth to their daughter in 1999 in violation of China’s family-planning policy, and that since 2007 he has practiced Falun Gong and participated in protests against the Chinese government. Chen also maintains that local officials in his hometown in Fujian Province are now aware of his activities in America and want him to return to China so that he can be punished.
The materials Chen submitted with his motion include a child’s birth certificate, photographs of himself participating in Falun Gong activities, and what purports to be a notice from the village committee in his hometown ordering his parents to urge him to return to China to receive punishment for fathering a child out of wedlock, practicing Falun Gong, and applying for asylum. The Board concluded that Chen had not met his burden of establishing materially changed country conditions as would be necessary to avoid the 90-day deadline that ordinarily applies to motions to reopen. See 8 U.S.C. § 1229a(e)(7)(C)(i), (ii). The Board noted that the father identified in the child’s birth certificate does not share Chen’s name or date of birth (or the name Chen gave when he was detained in Chicago); the Board also observed that Chen did not mention the child in 2000 when testifying before the immigration judge. In addition, the Board declined to consider the notice from the village committee because it was not authenticated as required under 8 C.F.R. § 1287.6. The Board distinguished Lin v. Mukasey, 532 F.3d 596 (7th Cir.2008), where we relied on the petitioner’s submission of a letter from her hometown village committee — the authenticity of which the government did not doubt — to hold that she had established changed country conditions. In contrast with Lin, the Board explained, the Department of Homeland Security had not conceded the authenticity of Chen’s evidence.
In his petition for review, Chen challenges the Board’s conclusion that he did not demonstrate a material change in country conditions. This ruling is the kind of determination that we lack jurisdiction to review except as to claims that the ruling rests on a constitutional or legal error. See Sharashidze v. Mukasey, 542 F.3d 1177, 1179 (7th Cir.2008); Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir.2008), cert. granted, — U.S. ---, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009) (argued Nov. 10, 2009). Chen maintains that the Board abused its discretion by “failing to consider significant evidence in the record.”
Chen principally argues that the Board erroneously refused to consider the village committee notice because he failed to authenticate it as required by 8 C.F.R. § 1287.6. This is a question of law that we may entertain. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008), cert. denied, --- U.S. ---, 129 S.Ct. 737, 172 L.Ed.2d 728 (2008). Lack of compliance with § 1287.6 is not a valid basis for immigration courts to disregard relevant evidence unless there are additional reasons to doubt its authenticity. Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir.2009); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir.2006) (explaining that failure to authenticate evidence “does not amount to presumptive proof of falsity”); Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.2003) (noting that compliance with regulation is “not the only way” to authenticate evidence introduced in immigration courts). The Board did not cite the discrepancies in Chen’s other evidence as a basis for doubting the authenticity of the notice, so arguably the Board should not have disregarded it.
*708But any error was harmless because the notice is not evidence of changed country conditions. In his brief to this court, Chen describes the notice as evidence that China’s family-planning policy is presently “being enforced more stringently” in his hometown, but it says nothing of the sort. The notice shows, at most, that Chinese officials want Chen to return to China to face unspecified punishment, but their interest in him is based on his “anti-government activities in the U.S.”— applying for asylum, having a child out of wedlock, and participating in Falun Gong. Chen applied for asylum in 1993 and allegedly fathered a child in 1999. He says that he began practicing Falun Gong in 2007, but it has been banned in China since 1999. See Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, China: Country Report on Human Rights Practices (Feb.2000), available at http:// www.state.gov/g/drl/rls/hrrpt/1999/284.htm. Chen’s evidence does not suggest that the Chinese government would view his conduct more harshly now than in 2002 when his asylum proceedings ended; he fears returning to China not because country conditions have changed, but because his personal conditions have changed. This is not a legitimate basis for reopening Chen’s deportation proceedings. See Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007) (explaining that alien who remains in U.S. after being ordered deported may not use “interval of unauthorized presence in the United States to manufacture a case for asylum”); see also Joseph v. Holder, 579 F.3d 827, 834-35 (7th Cir.2009); Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.2005).
What is left is Chen’s contention that the Board erroneously focused only on the birth of his child and did not evaluate whether his Falun Gong activities also constituted evidence of changed country conditions. But Chen is incorrect. The Board addressed all of his arguments in its order, and his opposition to the Board’s decision boils down to disagreement with the weight that the Board placed on his evidence en route to its discretionary decision to deny his petition — a challenge that we lack jurisdiction to entertain. See Huang, 534 F.3d at 621. But we add— given the grant of certiorari in Kucana— that if we had jurisdiction over this aspect of Chen’s petition, we would deny it on the merits. As discussed above, Chen provided evidence only of changes in his personal circumstances, not the country conditions in China.
Accordingly, we DENY Chen’s petition to the extent that it challenges the Board’s refusal to consider his evidence for lack of authentication; we otherwise DISMISS the petition.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476280/
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ORDER
Brian Jones, an Illinois prisoner, was housed at Lawrence Correctional Center during 2004 and had a number of problems with the way Lawrence was run. He is black and always had black cell mates; this led him to conclude that inmates are assigned to cells based solely on race. Further, between April and July 2004 the prison’s tap water allegedly became rust-colored and made Jones sick, but officials rejected his request to be tested for radiation poisoning. Jones also says that employees went through his cell and opened an item of legal mail, placed him in segregation without justification, and assaulted him. In October 2004, after his grievances about these problems had been rejected, Jones filed suit. The district court dismissed most of his claims at initial screening, see 28 U.S.C. § 1915A, but allowed Jones to proceed with his claims that the cell assignments violated the Equal Protection Clause and that the defendants were deliberately indifferent to a serious medical need by refusing to test him for exposure to radiation. On those claims the court later granted summary judgment for the defendants.
On appeal, Jones first argues that the district court erred in granting summary judgment on his equal protection *711claim. Race-based classifications in prison are presumptively suspect and subject to strict scrutiny, Johnson v. California, 543 U.S. 499, 509, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), but racial segregation that results from policies based on a “bona fide, colorblind concern” for prisoner safety does not violate the Equal Protection Clause, Harris v. Greer, 750 F.2d 617, 619 (7th Cir.1984). Although Jones introduced affidavits from several inmates who assert that blacks and whites have never celled together at Lawrence, defendant Garnett’s affidavit states that inmates of different races were occasionally — though rarely— celled together while he was warden, and that this infrequency was the unintentional byproduct of efforts to promote safety and limit gang violence. Garnett explained that many gangs are organized along racial lines, preach racial superiority, and encourage violence against other races. Efforts to reduce gang violence are not discriminatory, and Jones’s contention that there is not a full-fledged “racial gang war” at Lawrence does not undermine their legitimacy. See Borzych v. Frank, 439 F.3d 388, 391 (7th Cir.2006) (“An interest in curtailing violence within prison walls is compelling.”); Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir.2005) (acknowledging “the reality that prison gangs are a manifest threat to prison order”); Harris, 750 F.2d at 619. The district court properly granted summary judgment because Jones did not produce any evidence undermining the warden’s explanation for the cell assignments at Lawrence and showing that inmates were assigned to cells because of, not merely in spite of, their race. See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
Jones also argues that the district court incorrectly granted summary judgment on his Eighth Amendment medical claim, but he did not show an objectively serious medical condition or that officials were indifferent to that condition. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 829 (7th Cir.2009). Jones submitted affidavits confirming that Lawrence’s drinking water was discolored from April to July 2004, but the defendants produced lab reports establishing that it was not contaminated. They also provided Jones’s medical records from the same period showing that he was regularly seen by medical staff and was not seriously ill, so there was no evidence that his needs were not met. See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 592 (7th Cir.1999). Further, although Jones filed a grievance when the medical staff at Lawrence refused to test him for radiation exposure, he did not show that the defendants’ involvement in denying the grievance constituted deliberate indifference. The defendants permissibly relied on the medical staff’s professional assessment that a test was unnecessary. See Lee v. Young, 533 F.3d 505, 511 (7th Cir.2008).
Jones next challenges the district court’s denial of his request for assistance in obtaining counsel. The district court did not abuse its discretion in denying Jones’s request because the court applied the correct legal standard and based its decision on facts supported by the record. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.2007) (en banc). The district court initially determined that Jones had not made a reasonable effort to obtain counsel, but on reconsideration the court denied his request based on its determination that his claims were not complex and that he could competently litigate them. This was the appropriate inquiry, see id. at 654-55, and the record supports the court’s conclusion that an attorney was not necessary during the pretrial phase of the litigation: Jones had personal knowledge of the facts relevant to his claims, a basic understanding of *712procedural rules, and some access to a law library, copy machine, and postal services. See Jackson v. Kotter, 541 F.3d 688, 700-01 (7th Cir.2008).
Jones also contends that the district court erred in denying him “full discovery.” He insists that if all of his discovery requests had been granted he would have survived summary judgment on his claims of racial segregation and deliberate indifference, but he does not identify any of the discovery rulings he contests. This undeveloped argument gives us no reason to conclude that the district court abused its discretion. See Tenner v. Zurek, 168 F.3d 328, 330-31 (7th Cir.1999); Finance Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 528 (7th Cir.1998).
Finally, Jones argues that the district court improperly dismissed a number of his claims on initial screening. See 28 U.S.C. § 1915A. First, he contests the dismissal of his claim that his cell was searched and his property destroyed in violation of the Fourth and Fourteenth Amendments. The district court was correct to dismiss this claim. The Fourth Amendment’s proscription against unreasonable searches does not apply to prison cells. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Hanrahan v. Lane, 747 F.2d 1137, 1139 (7th Cir.1984). In addition, a state employee’s unauthorized acts depriving a prisoner of personal property do not violate the Due Process Clause if state law provides a meaningful post-deprivation remedy, and Illinois law does. See Hudson, 468 U.S. at 533, 104 S.Ct. 3194; Murdock v. Washington, 193 F.3d 510, 512-13 (7th Cir.1999); Kimbrough v. O’Neil, 523 F.2d 1057, 1059 (7th Cir.1975).
Second, Jones argues that the district court erred in dismissing his claim that a mail clerk improperly opened one piece of legal mail, but his allegations are insufficient to state a constitutional claim. Jones does not allege that the act of opening his mail adversely impacted his ability to litigate a specific matter. See Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir.2005); Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998); Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Nor does he allege that this incident was part of an ongoing practice of interfering with his legal mail. See Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir.1996); Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304, 306 (7th Cir.1993).
Third, Jones challenges the dismissal of his claims that he was unconstitutionally placed in segregation. He contests both his repeated segregation for declaring hunger strikes and a nine-day period of confinement that he now argues was imposed in retaliation for filing grievances. The district court correctly dismissed these claims. Although inmates have a Fourteenth Amendment liberty interest in avoiding placement in conditions posing significant hardships atypical of ordinary prison life, Wilkinson v. Austin, 545 U.S. 209, 222-23, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005); Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), they do not have a liberty interest in avoiding placement in discretionary segregation, meaning segregation “imposed for administrative, protective, or investigative purposes,” Townsend v. Fuchs, 522 F.3d 765, 771-72 (7th Cir.2008). Jones’s complaint reveals that the segregation he challenges was discretionary: during hunger strikes he was segregated for his protection, and the nine-day segregation resulted not from his filing of grievances but from the need to investigate after he mailed the warden a letter saying that he would defend himself if accosted by an officer.
Lastly, Jones argues that the district court should not have dismissed his *713claim that a guard violated the Eighth Amendment by pushing him into his cell, and that officials then retaliated against him for reporting the incident. But on these allegations Jones pleaded himself out of court. The de minimis use of force does not violate the Eighth Amendment. O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir.2006); Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir.2001); DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir.2000). Although Jones now asserts that the force he experienced was not de minimis, his complaint and attachments alleged the contrary. His grievance form about the incident (which he attached to his complaint) alleges that the guard “pushed [him] hard,” and his complaint asserts only that his arm was bruised. A single shove that results in bruising is de minimis force that will not support a claim of excessive force. DeWalt, 224 F.3d at 620. Jones’s grievance form also contradicts his claim of retaliation. He wrote that he was placed in segregation after he declared a hunger strike and remained there while officials investigated a disciplinary ticket that the guard who pushed Jones gave him for disobeying orders. This is the sort of “administrative, protective, or investigative” segregation that does not implicate the Constitution. See Townsend, 522 F.3d at 771.
Jones raises additional arguments on appeal, which we have considered, but they are meritless and do not warrant further discussion.
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
Aaron Pinkston-El-Bey is an Illinois prisoner. He is also a member of the Washitaw Nation of Muurs, which his complaint explains are a people indigenous to North America, yet descended from the Moors of North Africa, who practice a unique form of Islam. After prison officials shaved off his dreadlocks, which he wears for religious reasons, he filed a sprawling suit under 42 U.S.C. § 1983 against the governor of Illinois, the director of the Illinois Department of Corrections, and the wardens and chaplains of multiple Illinois prisons. Pinkston-ElBey complained that these state officials had conspired to deprive him and all other Washitaw Muurs in the Illinois prison system of rights guaranteed by the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause. The district court dismissed the suit on preliminary review for failure to state a claim. See 28 U.S.C. § 1915A(b)(l).
Pinkston-El-Bey insists that his complaint outlines the alleged constitutional violations and implicates the defendants; that is all he must do, he argues. We disagree. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Instead, a complaint must allege facts that allow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949; see also Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009). Yet Pinkston-El-Bey’s complaint alleges no facts that plausibly suggest he is entitled to relief; his sweeping allegations of unconstitutional conspiracies hatched among a broad swath of Illinois officials are too vague to state a claim.
Pinkston-El-Bey also argues that before dismissing his suit, the district *715court should have allowed him to move for class certification or at least to amend his complaint. But § 1915A does not require the district court to be so accommodating. No motion for class certification was pending. And the district court had already allowed Pinkston-El-Bey an opportunity to amend his original complaint, this putative class action being the result.
Pinkston-El-Bey’s complaint and appeal are both frivolous, so he has accumulated two strikes. See 28 U.S.C. § 1915(g); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir.1997).
AFFIRMED.
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ORDER
Two decades ago the state of Illinois seized John Walliser’s home in order to clear space for a highway. Walliser has since filed eight lawsuits challenging his eviction and subsequent relocation; three of his cases have found their way to this court. Twice we have ruled that the doctrine of claim preclusion barred his argument that the Illinois Department of Transportation (“IDOT”) violated his due process rights. Walliser v. Mineta, 33 Fed.Appx. 826, 828 (7th Cir.2002) (unpublished); Walliser v. Brown, 124 F.3d 206, 1997 WL 471347 (7th Cir.1997) (unpublished). Walliser now returns for the third time with more or less the same claim, and again we affirm the district court’s dismissal of his complaint for failure to state a claim.
Walliser’s home was located on the proposed construction site of a new stretch of Interstate 355 in Homer Township. In 1990 the state condemned his property, purchased it, and then leased it back to him for a two-year term. Walliser intended to move his home and business at the expiration of his lease, but zoning restrictions complicated his plans, and so he remained on the condemned parcel and eventually stopped paying rent. In 1999, long after his lease had expired and after seven years of litigation, Walliser vacated the residence, and in 2004 he met with IDOT officials to negotiate relocation assistance. The negotiations culminated in a 2005 letter from IDOT notifying Walliser that he was eligible for relocation payments but not for replacement housing assistance. The record does not reflect whether Walliser accepted the money.
Walliser has repeatedly asserted that the state seized his property without providing hearings required by the Illinois Displaced Person Relocation Act, see 310 III. Comp. Stat. 40/0.01 et seq. See, e.g., Walliser v. Brown, 308 Ill.App.3d 1108, 261 Ill.Dec. 906, 764 N.E.2d 197 (Ill.App.Ct.1999); Brown, 124 F.3d at 206; Mineta, 33 Fed.Appx. 826 (7th Cir.2002); Walliser v. Martin, No. 1-96-0408, slip op. at 6 (Ill.App.Ct. May 11, 2007). He renewed that argument in the district court, except this time he asserted that his injury arose not from his eviction but from the 2005 letter denying him replacement housing assistance without a full hearing. He named three current or former state officials as defendants: IDOT Secretary Gary Hannig, Illinois Attorney General Lisa Madigan, and former IDOT Secretary Milton Sees. He sued Hannig in his official capacity, Sees in his individual capacity, and Madigan in both her official and individual capacities. The district court granted the defendants’ motion to dismiss on res judicata grounds. Unpersuaded that IDOT’s 2005 correspondence with Walliser constituted a new injury, the court suggested that Walliser was trying to style a new claim out of old facts. For the same reason the court denied Walliser’s motion to reconsider. This appeal followed.
Walliser takes issue with the district court’s ruling that his claim was precluded and that it arose from the same set of facts as his previous suits. The doctrine *717of claim preclusion precludes a party from reasserting claims that were or could have been raised in a prior civil action. Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir.2007) (applying Illinois law). The preclusive effect of a state court’s judgment on a subsequent suit in federal court is determined by state law. See 28 U.S.C. § 1738; see also Hicks, 479 F.3d at 471; Orlando Residence Ltd. v. GP Credit Co., 553 F.3d 550, 557 (7th Cir.2009). Under Illinois law a previous judgment has preclusive effect on a later suit when: 1) the prior litigation resulted in a final judgment on the merits; 2) the two suits involve the same cause of action; and 3) the two suits involve the same parties or their privies. Hicks, 479 F.3d at 471 (citing Nowak v. St. Rita High Sch, 197 Ill.2d 381, 258 Ill.Dec. 782, 757 N.E.2d 471, 477 (2001).
The district court correctly concluded that claim preclusion bars Walliser’s claims against Secretary Hannig and Attorney General Madigan in their official capacities. First, an Illinois appellate court recently affirmed the dismissal of an identical post-relocation claim against IDOT on res judicata grounds. Walliser v. Martin, No. 1-06-0408, slip op. at 9. That was a final judgment on the merits. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476-77, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). As for the second element, both suits sprang from the same operative event — the 2005 letter from the department notifying Walliser that he was entitled to relocation payments but not replacement housing assistance. Walliser argues that the state court should never have applied res judicata — and that may be so — but our inquiry is limited to whether the two claims arose from the same transaction, see Licari v. City of Chicago, 298 F.3d 664, 667 (7th Cir.2002), and we agree with the district court that they did. To the extent Walliser wishes to use this federal suit to challenge the disposition of the state suit, such a claim would be barred under the Rooker-Feldman doctrine. See Freedom Mortgage v. Burnham Mortgage, Inc., 569 F.3d 667, 671 (7th Cir.2009). As for the third element, identity of parties is present with respect to defendants Hannig and Madigan (in their official capacities), who are in privity with the government by virtue of their offices. See Licari, 298 F.3d at 667. Accordingly, the district court correctly concluded that claim preclusion bars the actions against Hannig and Madigan (leaving claims against Madigan and former IDOT Secretary Sees in their individual capacities).
In any event, all of Walliser’s claims, including those remaining against defendants Madigan and Sees in their individual capacities, can be dismissed as untimely. Illinois has a two-year statute of limitations for § 1983 claims. 735 III. Comp. Stat. 5/13-202 (2008); Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). Walliser has stated that the events underlying the present suit accrued between 2004 and 2005. Spotting him even the later date, the statute of limitations would have expired in 2007, and Walliser did not file the current complaint until nearly two years later, in 2009.
Accordingly, we AFFIRM the district court’s judgment. Additionally, because this is his third filing in federal court asserting essentially the same claim, we warn him that we may sanction him if he continues to make frivolous filings, see Alexander v. United States, 121 F.3d 312 (7th Cir.1997).
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PER CURIAM.
Hunter Levi petitions for review of a final order of the United States Department of Labor Administrative Review Board, affirming dismissals of three administrative complaints he brought under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A. Upon careful review, see 5 U.S.C. § 706(2) (standard for reviewing agency decision), we find no basis for reversal. Accordingly, we deny the petition. See 8th Cir. R. 47B. We also deny Levi’s pending motion.
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MEMORANDUM **
P.F. Three Partners (“P.F. Three”) appeals the district court’s order affirming the bankruptcy court’s denial of administrative expense priority for three unsecured creditor claims. These unsecured claims derived from loans obtained by a Chapter 11 partnership, Upland Partners (“Upland”), without court approval. P.F. Three argues the bankruptcy court abused its discretion in holding (1) the loans obtained by the partnership constituted transactions outside the “ordinary course of business,” and (2) “exceptional circumstances” did not exist to warrant allowance and payment of claims nunc pro tunc. We affirm.
P.F. Three’s “ordinary course of business” claim fails for two reasons. First, the loans do not satisfy the vertical dimension test because the transactions subjected Upland’s creditors to economic risks of a nature different from those accepted when the creditors extended credit. See In re Dant & Russell, Inc., 853 F.2d 700, 705 (9th Cir.1988). Second, the loans do not satisfy the horizontal test because P.F. Three failed to provide any evidence to demonstrate that sole partners of real estate development partnerships ordinarily incur debt from entities directly or indirectly controlled by the sole partner. See id. at 704-05. Because P.F. Three’s “ordinary course of business” argument fails, the bankruptcy court did not abuse its discretion in denying P.F. Three administrative priority for the unsecured claims. See 11 U.S.C. § 364(a).
Likewise, the bankruptcy court did not abuse its discretion in holding that the facts of this case do not warrant nunc pro tunc allowance and payments of the claims. P.F. Three provides no evidence to show “exceptional circumstances” warranted allowance and payment of claims nunc pro tunc. See In re THC Financial Corp., 837 F.2d 389, 392 (9th Cir.1988).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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ORDER
The memorandum disposition filed on October 13, 2006, is hereby amended by replacing paragraphs two and three on pages two and three and the amended memorandum disposition is filed in its stead.
With this amendment, the panel votes to deny appellant’s petition for panel rehearing and has recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and the petition for rehearing en banc are DENIED and no further petition shall be entertained.
AMENDED MEMORANDUM *
RW Squared Medical Group appeals the district court’s decision affirming the bankruptcy court’s denial of its claim against HWY Squared, Inc. in the latter’s Chapter 11 bankruptcy case. We affirm. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.
As RW Squared notes, “[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” Fed. R. Bankr.P. 3001(f). Upon objection, the proof of claim provides “some evidence as to its validity and amount” and carries over a “mere formal objection.” Lundell v. Anchor Const. Specialists, Inc., 223 F.3d 1035, 1039 (9th Cir.2000). The objector must produce sufficient evidence “tending to defeat the claim by probative force equal to that of *583the allegations in the proofs of claim themselves.” Id. (citing In re Holm, 981 F.2d 620, 623 (9th Cir.1991)). But where the proof of claim omits an essential element of the substantive claim, the objector “need only note the absence of any such showing, and does not require evidence in support.” In re Atwood, 293 B.R. 227, 233 (9th Cir. BAP 2003). The claimant then must “prove the validity of the claim by a preponderance of the evidence. The ultimate burden of persuasion remains at all times upon the claimant.” Lundell, 223 F.3d at 1039.
Here, RW Squared’s proof of claim failed to show that its alleged damages were proximately caused by the debtor’s breach of the Agreement. Although this proof of claim was strong enough to overcome a “mere formal objection,” HWY Squared’s objection was sufficient under Atwood to shift the burden back to RW Squared on the proximate causation issue. The bankruptcy court did not abuse its discretion in finding that RW Squared failed to establish its proof of claim in the absence of evidence of proximate causation and damages.
Next, RW Squared argues that the bankruptcy court abused its discretion by striking the Newman Declaration under Federal Rule of Evidence 1006 and denying RW Squared’s request to make an offer of proof. Rule 1006 provides that “[t]he contents of voluminous writings ... which cannot conveniently be examined in court may be presented in the form of a ... summary. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.” Here, RW Squared neither established that the records summarized in the Newman Declaration were voluminous nor made those records available to HWY Squared. Because RW Squared did not establish the proper foundation for this summary evidence, the bankruptcy judge did not abuse his discretion in excluding the declaration. See Amarel v. Connell, 102 F.3d 1494, 1516-17 (9th Cir.1999). Moreover, as the district court noted, RW Squared’s request for an offer of proof is better termed a request to prove damages through additional evidence. The bankruptcy judge did not abuse his discretion in refusing to permit RW Squared to present additional evidence that it should have offered during the hearing itself.
Finally, RW Squared claims the bankruptcy judge abused his discretion by denying its motion for reconsideration. To be granted reconsideration, RW Squared must show (1) newly discovered evidence, (2) clear error or manifest injustice in the initial decision, or (3) an intervening change in the law. Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). RW Squared bases its motion upon two declarations purporting to establish damages. But this evidence was available to RW Squared at the initial hearing. “[T]he failure to file documents in an original motion or opposition does not turn the late filed documents into ‘newly discovered evidence.’ ” Id. Therefore the court did not abuse its discretion by denying the motion for reconsideration.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
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PER CURIAM: *
The attorney appointed to represent Randall Westfall has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Westfall has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
In 1997 Marcella Richman’s son, Jack, a severely obese man, suffocated and died after deputy sheriffs used force in attempting to remove him from an Illinois state courthouse where he was resisting the officers and defying a judge’s order to leave. After two earlier appeals to this court, Richman v. Sheahan, 512 F.3d 876 (7th Cir.2008); Richman v. Sheahan, 270 F.3d 430 (7th Cir.2001), the case finally went to trial on the claims that the officers violated Jack’s rights under the Fourth and Eighth Amendments. A jury returned a verdict in favor of the defendants on all counts, and, after denying Richman’s motion for a new trial under Fed.R.Civ.P. 59(a), the district court entered judgment in their favor. On appeal Richman raises two arguments: The district court improperly admitted evidence of Jack’s prior arrest, and the jury ignored what Richman describes as compelling evidence of liability on the Fourth Amendment claim.
We begin with the district court’s decision to admit the evidence that Jack had been arrested once before. Richman testified that Jack had “never been treated as a criminal,” and the defendants responded with evidence of a prior arrest during which he knew not to resist. The defendants’ argue on appeal that Richman waived any challenge to the district court’s admission of the arrest by failing to raise it in her Rule 59 motion, but this argument is frivolous. Richman preserved the evidentiary point by making a contemporaneous objection. See Fed.R.Evid. 103(a)(1); Wipf v. Koioalski, 519 F.3d 380, 385 (7th Cir.2008). Nonetheless, the district court’s decision to admit evidence of Jack’s prior arrest was not an abuse of discretion. See United States v. Chavis, 429 F.3d 662, 669 (7th Cir.2005). Richman’s testimony implied that Jack had never been arrested and thus did not know how to behave when restrained. The defendants’ evidence that Jack had been arrested before, had gone quietly, and was not maltreated was probative to rebut Richman’s contentions. See United States v. Perkins, 548 F.3d 510, 514 (7th Cir.2008).
Riehman’s next argument on appeal— that the verdict in favor of defendants was unreasonable as a matter of law — fares no better. After the second appeal, we remanded this case for a trial precisely because the evidence could support a verdict for either side. Because the evidence in this case “was sufficient to pave a rational path to the jury’s finding,” Davis v. Wisconsin Dep’t of Corrections, 445 F.3d 971, 976 (7th Cir.2006), Richman is not entitled to judgment as a matter of law.
AFFIRMED.
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ORDER
Dimitre Djorov-Ivanov, a native and citizen of Bulgaria, was denied asylum and withholding of deportation in 1994. In 2000, the Board of Immigration Appeals dismissed his appeal, adopting the immigration judge’s reasoning that Djorov-Ivanov had not demonstrated a well-founded fear of persecution. Eight years later, Djorov-Ivanov filed a motion to reopen under the Convention Against Torture (“CAT”). The Board denied the motion as untimely. Djorov-Ivanov petitions for review, arguing that: (1) his motion to reopen should not be subject to timeliness regulations, and (2) he is prima facie eligible for relief under the CAT. For the following reasons, we deny the petition.
Djorov-Ivanov first argues that the Board erred in finding his motion to reopen untimely because, he contends, he “never had the opportunity to apply for relief’ under the CAT. Regulations implementing the CAT did not become effective until 1999. See 8 C.F.R. §§ 1208.16-1208.18. Djorov-Ivanov reads one of these, 8 C.F.R. § 1208.18(b)(1), to excuse untimely motions to reopen from aliens whose proceedings were pending at the time CAT regulations went into effect in 1999 from timeliness regulations because § 1208.18(b)(1) does not itself contain a timeliness provision, a position he claims to be supported by Kay v. Ashcroft, 387 F.3d 664 (7th Cir.2004).
As a threshold matter, we must consider whether we have jurisdiction to review Djorov-Ivanov’s petition. The government urges us to reach the merits, but motions to reopen are within the discretion of the Board and this court may not review them unless they raise legal questions, see 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D); Kucana v. Mukasey, 533 F.3d 534, 535-38 (7th Cir.2008), cert. granted, --- U.S. ---, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009). *685The timeliness of a motion to reopen is generally a factual question beyond the review of the court. See Johnson v. Mukasey, 546 F.Sd 403, 404-05 (7th Cir.2008). But the question whether § 1208.18(b)(1) exempts Djorov-Ivanov’s petition from timeliness regulations is a legal one, and thus we may review the petition.
Returning to the merits, Kay does not help Djorov-Ivanov. In that case, we made clear that Kay’s motion to reopen under the CAT was timely because he filed it before the deportation order became final, see Kay, 387 F.3d at 672-73; Djorov-Ivanov, by contrast, waited eight years after his proceedings became final before filing his motion. More importantly, though, Kay makes clear that motions to reopen under the CAT are subject to general timeliness provisions. See Kay, 387 F.3d at 671-73.
Aliens are generally permitted to file one motion to reopen a deportation proceeding within 90 days of the Board’s decision on appeal, when the order becomes final. 8 C.F.R. § 1003.2(c)(2). Though CAT regulations made a limited exception for aliens whose proceedings became final before the regulations went into effect in 1999, see id. § 1208.18(b)(2), no additional exceptions were made for motions to reopen under the CAT, see id. §§ 1208.16-1208.18 (regulations implementing the CAT). And contrary to Djorov-Ivanov’s assertion that he never had a chance to apply for relief under the CAT, Djorov-Ivanov could have filed a motion to reopen under the CAT at any time after the regulations went into effect in 1999, during the pendency of his appeal to the Board. See 8 C.F.R. §§ 1208.18(b)(1), 1003.2(c)(4); Kay, 387 F.3d at 671-72. Once the Board affirmed and the deportation order became final on August 2, 2000, Djorov-Ivanov had an additional 90 days to file his motion to reopen — until October 31, 2000. He failed to do so and lost his opportunity.
While the CAT regulations do not, as Djorov-Ivanov urges, create any special exception to timeliness regulations, a general exception for motions to reopen does exist for “changed circumstances arising in the country of nationality.” See 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C). But Djorov-Ivanov did not allege changed country conditions in his motion to reopen, and he concedes on appeal that he doesn’t seek to prove changed country conditions.
Djorov-Ivanov also contends that his motion to reopen should be granted because he has presented a prima facie case for relief under the CAT. But the Board denied the motion on timeliness grounds, noting only in passing that Djorov-Ivanov had not demonstrated a prima facie case for relief.
Because the Board did not abuse its discretion when it found Djorov-Ivanov’s motion untimely, the petition for review is DENIED.
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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/8476269/
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ORDER
Nancy Hayes pleaded guilty to making a false statement on an application for a United States passport, see 18 U.S.C. § 1542. Because she obtained the passport as part of a larger scheme in which she abducted her daughter and took her to Mexico, the district court followed across-reference in Chapter 2 of the Sentencing Guidelines for the § 1542 violation and instead calculated her guidelines’ imprisonment range as if she had been convicted of international parental kidnapping, see 18 U.S.C. § 1204. In this appeal Hayes argues that the district court erred in following the cross-reference and then compounded the mistake by misapplying two upward adjustments in the Chapter 2 guideline for § 1204. Hayes further argues that the court should have reduced her prison term by the amount of time she resided in a halfway house as a condition of her pretrial release. Because we conclude that the district court correctly calculated the guidelines range and imposed a reasonable sentence, we affirm.
I. Background
In 2004 Hayes lost custody of her daughter and was permitted only supervised visitation. At that time the girl’s father was given sole custody. The details of the custody dispute are unclear from the record, but at sentencing the father testified that Hayes is a “gestational surrogate” and has no biological connection to the girl. The parties did not formalize their surrogacy arrangement though, and Hayes apparently had second thoughts on the matter. Consequently, as the birth mother, Hayes retained custody for four years before the father went to court and secured visitation and, ultimately, sole custody.
Hayes fought in state court to recover the right to visit her daughter without supervision. But she also made plans to begin a new life with her daughter in Mexico, and in February 2006 she walked into a post office in Northwest Indiana and used another woman’s name and birth certificate to apply for a passport, which she received. She also procured a fraudulent Indiana driver’s license in the same name. Hayes obtained books and articles on parental abduction, as well as information about applying for Mexican citizenship, and made arrangements to stay in a friend’s vacation home in Mexico. She emptied her retirement account, stopped making her mortgage and car payments, and placed approximately $160,000 in the same friend’s bank account, which she could access using a debit card in the friend’s name. Hayes then boxed up her possessions and placed them in storage at the friend’s primary residence in Indiana. In July 2007, having finally secured court-authorized, unsupervised visitation with her daughter, Hayes abducted the girl, then 10 years old, and took her to Mexico.
When Hayes did not return the child to her father, Illinois police and the FBI launched a criminal investigation. Two Lincolnshire, Illinois police detectives spent over three weeks investigating the abduction and ultimately tracking Hayes *688to Mexico. In Mexico the FBI worked with local officials to watch the home where Hayes and her daughter were living and arrest Hayes. Hayes initially tried to convince the agents that she was the person named in the fraudulent passport but eventually admitted her true identity and was returned to the United States. She pleaded guilty to child abduction in Illinois state court and was sentenced to three years’ imprisonment. She served a total of 12 and one-half months before she was paroled.
Hayes then was taken into custody in the Northern District of Indiana on the charge that she made a false statement on the passport application. The district court released Hayes on bond with the condition that she reside at Bradley House, a halfway house in Michigan City, Indiana. Hayes pleaded guilty and continued to reside at Bradley House while awaiting sentencing.
The probation officer who prepared the presentence investigation report (“PSR”) applied U.S.S.G. § 2L2.2, the guideline applicable to the passport violation. But that guideline includes a cross-reference to U.S.S.G. § 2X1.1 for cases where the defendant “used a passport ... in the commission or attempted commission of a felony offense.” U.S.S.G. § 2L2.2(c)(l). Section 2X1.1, which broadly applies to attempts, solicitations, and conspiracies not covered elsewhere in Chapter 2, in turn directs the sentencing court to apply the “base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” Id. § 2Xl.l(a). The PSR noted that Hayes had “used” the fraudulent passport to commit international parental kidnapping. That felony is defined in 18 U.S.C. § 1204, which makes it a federal crime to remove a child from the United States “with intent to obstruct the lawful exercise of parental rights.” The PSR then turned to U.S.S.G. § 2J1.2, which is titled “Obstruction of Justice” but is the guideline applicable to parental kidnapping. The PSR started with a base offense level of 14 and added 3 levels under § 2J1.2(b)(2) because the offense had resulted in “substantial interference with the administration of justice.” Two more levels were added under § 2Jl.2(b)(3) because the offense was extensive in scope, planning, and preparation.
In the initial draft of the PSR, the probation officer did not explain the factual basis for either increase in offense level under § 2J1.2(b), and Hayes objected to both, as well as to the application of the cross-reference. With respect to the cross-reference, Hayes argued that her “use” of the passport was not established because she did not present it to Mexican officials when she crossed the border. She further argued that the facts did not support an increase for substantial interference with the administration of justice or the scope of the offense. The government responded that whether Hayes used the passport to cross the border was irrelevant because she obtained it to facilitate the kidnapping. And the upward adjustments were justified, the government continued, because, as to subsection (b)(2), Hayes had violated the state-court custody order and caused law-enforcement agencies to expend substantial time and resources to find and return the child. As to subsection (b)(3), the government noted that Hayes had spent months preparing for the kidnapping by securing the passport and other identification documents, closing bank accounts, ceasing her mortgage and car payments, and recruiting her friend to assist in the kidnapping.
The probation officer then revised the PSR to endorse the government’s explana*689tions for the cross-reference and proposed adjustments. With respect to the increase under § 2J1.2(b)(2), the commentary to the guideline defines “substantial interference” to include the “unnecessary expenditure of substantial governmental or court resources.” U.S.S.G. § 2J1.2 cmt. n. 1. Citing that language, the revised PSR recommended the increase because Hayes’s violation of the state custody order and flight to Mexico had prompted a 20-day investigation by multiple agencies in two countries.
The district court overruled Hayes’s objections. The court adopted the facts in the PSR and ruled that they “unequivocally” established that Hayes had falsely obtained a passport for the commission of a kidnapping offense. Thus, the court concluded, the cross-reference in § 2L2.2(c)(l)(A) directed the court to apply § 2J1.2, the guideline for the kidnapping. Next, the court concluded that Hayes qualified for the 3-level increase under § 2J1.2(b)(2) for substantially interfering with the state court’s administration of justice in a custody proceeding. By taking the child all the way to Mexico, the court explained, Hayes’s interference with the court order was substantial. The court reasoned that this “was not a case of failing to return the child over the weekend, or even taking the child to another town.” Instead, the court continued, Hayes had chosen “to violate a State Child Custody Order and remove both herself and the child out of the country.” The court further concluded that Hayes’s “planning and preparation for the kidnapping were extensive in scope” and therefore warranted the additional two-level increase under § 2J1.2(b)(3). The resulting total offense level of 17, coupled with Hayes’s category I criminal history, yielded a guidelines’ imprisonment range of 24 to 30 months. Hayes, though, already had served 12 and one-half months in Illinois for child abduction, so the court applied U.S.S.G. § 5K2.23, which encourages a below-range sentence if the defendant has completed a term of imprisonment for related conduct. The court concluded that a sentence within the range, less time served for the state offense, was appropriate and imposed a prison term of 12 months and 1 day.
II. Discussion
On appeal Hayes argues that the district court incorrectly calculated her offense level using the base offense level and adjustments in § 2J1.2 instead of applying § 2L2.2. She fails to acknowledge, however, that the court applied § 2J1.2, the guideline for international parental abduction, by way of the cross-reference in § 2L2.2(c). That cross-reference states that if the defendant “used” the fraudulent passport “in the commission or attempted commission of a felony offense, other than an offense involving violation of the immigration laws, apply ... § 2X1.1.” Section 2Xl.l(a), in turn, directs the sentencing court to apply the applicable guideline for the underlying felony offense. See United States v. Bernard, 373 F.3d 339, 341 (3d Cir.2004) (describing generally the operation of the cross-reference under § 2L2.2(c) and § 2X1.1).
As for the cross-reference, Hayes renews her contention that it was error to apply § 2J1.2 because she did not present the fraudulent passport to enter Mexico and thus it was never “used.” But she cites no authority, and we have found none, supporting a rule that the cross-reference cannot apply unless the defendant actually presented the fraudulent passport to border authorities. The district court’s factual finding that the passport was “used” in the commission of the kidnapping is not clearly erroneous. Hayes obtained the passport to facilitate and conceal her presence in Mexico, she *690carried it with her to Mexico, and when apprehended she tried to convince authorities that she was the person named in the passport. That is enough to support the district court’s finding that she “used” the passport in the commission of the kidnapping.
Once the district court determined that Hayes had used the passport in the commission of the international kidnapping offense, the guidelines dictated that her offense level be determined based on the specific characteristics of the kidnapping. See U.S.S.G. § 2X1.1(a) (instructing sentencing court to apply the “guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct”); United States v. Samuels, 521 F.3d 804, 815-16 (7th Cir.2008); United States v. Almaguer, 146 F.3d 474, 476 (7th Cir.1998); United States v. Ellison, 113 F.3d 77, 82 (7th Cir.1997); United States v. Corbin, 998 F.2d 1377, 1383-85 (7th Cir.1993). Hayes argues that the court erroneously applied the two-level increase under § 2J1.2(b)(3)(C) because the passport offense was not “extensive in scope, planning, or preparation.” The issue before the district court, however, was whether the kidnapping was extensive in scope, planning, or preparation, and Hayes makes no attempt to challenge the court’s finding in this regard.
Hayes’s next argument falls closer to the mark but is still unavailing. Hayes contends that the district court erred when it applied the three-level increase under § 2J1.2(b)(2) on the ground that the kidnapping resulted in a substantial interference with the administration of justice. The commentary to § 2J1.2 defines substantial interference to include, as relevant here, the “unnecessary expenditure of substantial governmental ... resources.” U.S.S.G. § 2J1.2 cmt. n. 1. As Hayes notes, several circuits have held that resources expended in the investigation and prosecution of the offense itself cannot form the basis for the increase in offense level under § 2Jl.2(b)(2). See United States v. Johnson, 485 F.3d 1264, 1271-72 (11th Cir.2007) (noting that upward adjustment could not be based on “expenses associated with prosecuting [the] underlying perjury offense”); United States v. Norris, 217 F.3d 262, 273 (5th Cir.2000) (concluding that “expenses incurred with the investigation and prosecution” of defendant’s perjury offense may not be considered, “[o]therwise, every perjury conviction would carry this enhancement”); United States v. Sinclair, 109 F.3d 1527, 1539 (10th Cir.1997); United States v. Duran, 41 F.3d 540, 546 (9th Cir.1994); United States v. Jones, 900 F.2d 512, 522 (2d Cir.1990). In light of these cases, Hayes argues that the district court improperly based the upward adjustment on the resources expended by the government investigating the international parental kidnapping, traveling to Mexico, and returning her and her daughter to the United States.
The district court nominally based the increase on Hayes’s interference with the state-court custody order, but as a practical matter the court applied the adjustment because of the time and expense of investigating the kidnapping. The district court reasoned that the interference with the custody order was substantial because Hayes took the child to Mexico, as opposed to simply “failing to return the child over the weekend, or even taking the child to another town.” But taking the girl out of the country to Mexico is the only reason that § 1204 and the cross-reference to § 2J1.2 are even relevant to this prosecution for passport fraud, so it is difficult to see how the manner in which Hayes violated the custody order could have made the interference with that order any more or less substantial unless “substantial” is measured against the time and expense involved in getting the girl back. If the *691interference with the custody order was substantial simply because the kidnapping was international — as the court seems to suggest — then every violation of § 1204 would trigger application of § 2Jl.2(b)(2) if there is an order of custody in place. Perhaps recognizing this, the government shifts course on appeal and rather than focusing on Hayes’s interference with the state-court order, simply contends that the substantial resources expended to investigate the kidnapping justify the increase in offense level.
This circuit has not yet addressed the application of § 2J1.2(b)(2) within the context of a § 1204 prosecution. In fact, we have found few cases involving this offense and even fewer addressing the increase in offense level under subsection (b)(2). In United States v. Amer, 110 F.3d 873, 885 (2d Cir.1997), the Second Circuit held that the upward adjustment was warranted where the government did not conduct an extensive investigation or attempt to retrieve the children but the defendant “prevented proper legal proceedings from occurring” by removing his children from the country before his estranged wife could seek custody. The Eleventh Circuit has also upheld the application of subsection (b)(2) in a nonprecedential decision where the defendant instituted fraudulent state-court divorce and custody proceedings and also caused the FBI to obtain an arrest warrant, fly to Honduras to retrieve him and the child, investigate his real identity, and develop the case against him. United States v. Tomaskovic, 275 Fed.Appx. 884, 887 (11th Cir.2008).
Although we have not had occasion to address the application of § 2Jl.2(b)(2) in the context of § 1204, we have discussed the application of the guideline in several obstruction-of-justice cases. And in that context we have not distinguished between the resources expended in the investigation and prosecution of the defendant’s offense and any other expenses necessary to address the additional consequences of that offense. Instead, we have approved the application of the upward adjustment where the district court based its findings, at least in part, on expenditures that were arguably necessary to the investigation and prosecution of the underlying crime. See United States v. Tankersley, 296 F.3d 620, 623-24 (7th Cir.2002) (upholding upward adjustment under § 2J1.2(b)(2) for criminal contempt conviction where defendant’s sale of yacht in violation of court order caused government and court-appointed receiver to expend substantial resources to investigate the defendant’s actions and locate yacht); United States v. Bradach, 949 F.2d 1461, 1463 (7th Cir.1991) (concluding that increase was justified for perjury conviction where defendant’s perjury and subornation of perjury from three others not only impaired grand-jury proceedings but “necessitated four perjury-related trials,” including the defendant’s own trial); United States v. Lueddeke, 908 F.2d 230, 234 (7th Cir.1990) (upholding application of § 2J1.2(b)(2) to perjury conviction because defendant’s perjury caused government agents to spend two weeks “trying to sort out the truth”). In Tankersley we rejected the defendant’s argument that the sentencing judge had “double counted” by basing the upward adjustment on the same conduct that led to his underlying prosecution for criminal contempt. 296 F.3d at 624. As we explained, the defendant committed criminal contempt and was sentenced under § 2J1.2 for selling his yacht and trying to hide the proceeds in violation of a court order, and he was given the increase because his conduct caused the government to expend substantial resources tracking down and determining what happened to the yacht. Id.
In light of our approach to similar applications of § 2Jl.2(b)(2) and the application *692of the upward adjustment in the very few cases to address the issue in the kidnapping context, we reject Hayes’s argument. As in Tankersley, Hayes was sentenced under § 2J1.2 because she kidnapped her daughter to Mexico, and the upward adjustment applied because her conduct resulted in the substantial expenditure of governmental resources to find and return Hayes and the girl. See 296 F.3d at 624. Thus, the district court’s increase of Hayes’s offense level under § 2J1.2(b)(2) was not an erroneous application of that guideline.
Finally, Hayes’s last argument— that the district court should have further reduced her prison sentence to compensate for the nearly eight months she resided at the halfway house as a condition of her bond — lacks merit. Hayes contends that her halfway-house confinement was equivalent to serving time on the false-passport charge, and thus at the end of her prison term, she will have served more time in prison “than minimally sufficient to achieve the broad goals of sentencing.” In her view the district court should have applied U.S.S.G. § 5G1.3 to reduce her prison sentence by the amount of time she spent at the halfway house.
But § 5G1.3 was not applicable to Hayes’s pretrial residency in the halfway house because by then her “term of imprisonment” for the related state conviction had been completed and her presence in the facility had nothing to do with that conviction. See U.S.S.G. § 5G1.3(b); Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Moreover, the district court imposed a prison sentence within the correctly calculated guidelines range (minus the time served in prison on the state charge), and that sentence is presumptively reasonable. See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203, (2007); United States v. Williams, 553 F.3d 1073, 1083-84 (7th Cir.2009). That the sentencing court did not give Hayes an even bigger break based on her halfway-house confinement was not an abuse of discretion. Cf. Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir.1989) (deferring to BOP policy that time served at halfway house prior to trial does not constitute “custody” for purposes of statute permitting credit for time served).
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476273/
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ORDER
A jury found Dwayne Allen guilty of possessing a firearm as a felon, 18 U.S.C. § 922(g), and he was sentenced to the statutory maximum of 120 months in prison. See 18 U.S.C. § 924(a)(2). Allen appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivolous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Allen declined our invitation to comment on his counsel’s submission. See CIR. R. 51(b). We confine our review to the four potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002).
The following events were testified to at trial. Police responded to 911 reports of gun shots fired at a local residence, and intercepted Allen and his friend Jammy Brown in a nearby alley as they fled the scene. The police took Allen and Brown back to the house, where witnesses said that a group of friends had been drinking and playing cards when a fight broke out between Allen and Larry Smith. The fight escalated when Allen knocked Smith into the bathtub, took out a gun, and fired two shots into the bathroom ceiling, before others could restrain him and take away his weapon. The police arrested Allen and later recovered a Charter Arms .38 caliber revolver on a gravel pile in a lot adjacent to the alley where Allen and Brown were picked up.
Shortly after his arrest, two detectives conducted a videotaped interview with Allen, during which he denied ever seeing the gun or hearing the gunshots, and he accused the other witnesses of lying. The detectives stopped their questioning at Allen’s request after approximately an hour. But before they returned him to jail, officers told him that a gunshot residue test would be administered to his hands. Allen strenuously objected. The video, which was later played at trial, showed Allen— upon learning of the test — wringing his hands, rubbing them on his pants, and hiding them under his shirt. He physically resisted the officers’ attempts to swab his hands and insisted he had the right to have an attorney present.
Allen’s trial focused on whether he possessed a gun (he had already stipulated that he had a prior felony conviction and that the gun had traveled in interstate commerce). The government relied on the testimony of five eyewitnesses to prove possession because they had no physical evidence tying Allen to the gun (no usable fingerprints were recovered and the gunshot residue test came up negative). Allen did not testify or present any evidence of his own, relying instead on cross-examination to discredit witnesses and emphasize the circumstantial nature of the government’s evidence. After a two-day trial, the jury convicted him.
Counsel first considers whether Allen could argue that 18 U.S.C. § 922(g)(1) exceeds the scope of Congress’s power under the Commerce Clause, or, alternately, that his conviction is invalid because the firearm did not affect interstate commerce. Both arguments, however, would be frivolous. Section 922(g)(1) is a valid exercise *699of Congress’ power. See United States v. Williams, 410 F.3d 397, 400 (7th Cir.2005). Moreover, “movement in interstate commerce is all the Supreme Court requires under the statute,” see, e.g., United States v. Blanchard, 542 F.Sd 1138, 1154 (7th Cir.2008), and Allen stipulated at trial that the gun traveled in interstate commerce.
Counsel next considers whether Allen could advance Fourth, Fifth, or Sixth Amendment challenges to the admission of evidence relating to the gunshot residue test that was administered over Allen’s objection and without an attorney present. Because Allen did not object to this evidence at trial, we would review these arguments for plain error only. United States v. Rollins, 544 F.3d 820, 834 (7th Cir.2008).
As counsel notes, any Fourth Amendment challenge to the gunpowder residue test would be frivolous. Incident to a lawful arrest, “it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (no constitutional violation for a police officer to obtain, without a warrant or consent, a blood sample to test defendant’s blood-alcohol level because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops”); see also United States v. Bridges, 499 F.2d 179, 184 (7th Cir.1974) (swab test to detect presence of dynamite particles on defendant’s hands did not violate Fourth Amendment because evidence was time-sensitive and hand swabbing did not intrude upon integrity of defendant’s body). In this case, the delicate nature of the gunshot residue required law enforcement to administer the test quickly before the evidence could be wiped off or destroyed. See United States v. Johnson, 445 F.3d 793, 795-96 (5th Cir.2006) (no Fourth Amendment violation where police performed gunshot residue test on hands of defendant, who had been arrested on weapons charge, because residue was relevant evidence that either defendant or time could have destroyed).
Furthermore, Allen would not prevail on any Fifth or Sixth Amendment arguments. Physical evidence like fingerprinting, gunshot residue, and blood samples, is not testimonial and thus does not implicate Fifth Amendment concerns regarding a defendant’s right against self-incrimination. Schmerber, 384 U.S. at 764-65, 86 S.Ct. 1826; United States v. Hook, 471 F.3d 766, 773 (7th Cir.2006); Bridges, 499 F.2d at 184. Moreover, Allen was not indicted on the § 922(g)(1) charge until almost two months after the police had administered the gunshot residue test, and thus his Sixth Amendment right to counsel had not yet attached. McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); Watson v. Hulick, 481 F.3d 537, 542 (7th Cir.2007).
Counsel also considers whether Allen could argue that there was insufficient evidence to support a finding of guilt. In reviewing a case for sufficiency of the evidence, we would view the evidence in the light most favorable to the government and uphold a conviction unless there is no evidence in the record from which a jury could have found the defendant guilty. United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir.2003). Allen would face a “nearly insurmountable” hurdle in showing that the evidence was insufficient to support a conviction, and we would not second-guess the jury’s decisions regarding the weight of the evidence or the credibility of the witnesses. Rollins, 544 F.3d at 835.
*700For a conviction under § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) the defendant had a previous felony conviction, (2) the defendant possessed a firearm, and (3) the firearm traveled in or affected interstate commerce. 18 U.S.C. § 922(g)(1); Morris, 349 F.3d at 1013. Because Allen stipulated to the first and third elements, the government had to prove only that Allen possessed the recovered gun. Proof that Allen merely held the weapon is enough to establish possession. See United States v. Matthews, 520 F.3d 806, 811 (7th Cir.2008).
We agree with counsel that the evidence was more than sufficient for a reasonable jury to find Allen guilty beyond a reasonable doubt. The five eyewitnesses all identified Allen as the shooter and all gave similar accounts of the fight. Even though defense counsel elicited testimony that several witnesses had been drinking that night and their stories were somewhat inconsistent, the jury was entitled to credit their testimony over any lack of physical evidence. See United States v. Hampton, 585 F.3d 1033, 1041-42 (7th Cir.2009) (jury entitled to credit eyewitnesses’ testimony that defendant possessed gun even though inconsistencies in their descriptions emerged on cross-examination).
Finally, counsel considers whether Allen could challenge the reasonableness of the district court’s decision to sentence him to the statutory maximum of 120 months in prison. We agree that any such challenge would be frivolous. The district court correctly calculated Allen’s final offense level to be 28 and his criminal history category to be V, resulting in a recommended guidelines range of 130 to 162 months in prison. Because the statutory maximum of 120 months was less than the guidelines range, 120 months became the guideline sentence. See U.S.S.G. § 5Gl.l(a). We would presume that a sentence falling within the properly calculated guidelines range is reasonable. United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). There is no evidence that the district court erred in its calculations or that it failed to consider all of the factors under 18 U.S.C. § 3553(a) in concluding that a lower sentence was not warranted. See United States v. Harris, 490 F.3d 589, 597 (7th Cir.2007). The transcript from Allen’s sentencing hearing shows that the court considered the seriousness of the crime, the escalating nature of Allen’s long criminal history, and the purposes of sentencing, before arriving at a 120-month sentence.
We therefore GRANT the motion to withdraw and DISMISS Allen’s appeal.
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11-05-2022
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ORDER
When he entered the United States unlawfully two decades ago, Mexican citizen Rafael Perez-Rodriguez bought a Social Security number and other personal identifiers stolen from Arthur Guajardo, whose name the defendant has used ever since. Federal authorities finally caught up with him in 2008 and charged him with wire fraud, 18 U.S.C § 1343; use of a passport obtained with a falsified application, id. § 1542; aggravated identity theft, id. § 1028A(a)(l); and fraudulent possession of five or more identification documents, id. § 1028(a)(3). A jury found the defendant guilty on all counts, and the district court sentenced him to a total of 57 months’ imprisonment. Perez-Rodriguez appeals, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Perez-Rodriguez opposes counsel’s motion. See CIR. R. 51(b). Our review is limited to the potential issues identified in counsel’s facially adequate brief and in Perez-Rodriguez’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Arthur Guajardo, an Indiana resident, discovered in 2004 that another man was using his identity. That same year a detective from Blue Island, Illinois, interviewed the defendant, who — representing himself as Guajardo — acknowledged the real Guajardo’s accusation of identity theft but insisted he was using his own (but identical) name, date of birth, and Social Security number. Then in 2007 federal investigators began examining applications for federal and state identification documents issued in Guajardo’s name, including Social Security cards, U.S. passports, and an Illinois driver’s license and state I.D. In 1990 a new Social Security number ending in “4743” had been issued to someone using Guajardo’s name but claiming to be a Mexican citizen born one year earlier, but then in 1992 the holder of the “4743” number applied for a replacement card using Guajardo’s actual date and place of birth and the names of his parents but an address in Blue Island; that 1992 application resulted in the Social Security number first issued to Guajardo in 1978 when he was 15 years old being reissued to the holder of the “4743” number in Blue Island. That address in Blue Island was also used on passport applications submitted in 1994 and 2005 in Guajardo’s name with his date of birth and Social Security number.
*703When agents executed a search warrant in May 2008 at the address on file for Guajardo’s Illinois driver’s license, they found the defendant along with copies of Guajardo’s birth certificate, the “4748” Social Security card, the passports issued in 1994 and 2005, an Illinois state I.D., a Michigan state I.D. with Guajardo’s true Social Security number, and a student I.D. from Moraine Valley Community College in Illinois. All of the documents are in the name of Arthur Guajardo, but those with photographs depict Perez-Rodriguez. Inside the house agents also found a Mexican passport and birth certificate in the defendant’s name, as well as a 1997 letter from the IRS addressed to “Arthur Guajardo” in Chicago alerting him that he was using a Social Security number assigned to a different person. Another letter found during the search, this one from 1994, was written by the defendant using his Guajardo alias and represents to the Child Support Division of the prosecutor’s office in Lake County, Indiana, that he was aware that he and another man had “identical names” but he was not the one who owed child support.
The government recounted this investigation at trial. It also introduced evidence that the defendant had attended Moraine Valley under the name Guajardo between 2001 and 2004. He helped finance his education with more than $6,000 in federal aid obtained using Guajardo’s date of birth and Social Security number. And the defendant’s former girlfriend, Margarita Santamaría, testified that she knew him both as Perez-Rodriguez and Guajardo; she recounted that he presented a U.S. passport in Guajardo’s name when the couple landed at O’Hare International Airport in January 2007 after a trip to Mexico. The real Arthur Guajardo testified that he never lived in Illinois, never had a driver’s license or state I.D. issued in Illinois, never applied for a Social Security card after his first and only application in 1978, never applied for a passport or traveled outside the United States, and never attended college. The defendant did not offer any evidence.
In his Anders submission counsel evaluates whether Perez-Rodriguez could challenge the sufficiency of the evidence underlying his convictions. We would uphold the jury’s verdict unless no rational trier of fact could have concluded, based on the evidence viewed in the light most favorable to the prosecution, that all of the elements of the charged crimes were proved beyond a reasonable doubt. See United States v. Khattab, 536 F.3d 765, 769 (7th Cir.2008).
The defendant’s conviction for wire fraud was based on his use of Guajardo’s identity to apply for and receive federal financial aid from the Department of Education; the funds were transferred by interstate wire to accounts held by Moraine Valley. The government’s evidence that the defendant lied in financial-aid applications to obtain money through programs for which he was ineligible was more than ample to prove that he devised and executed a scheme to defraud. See 18 U.S.C. § 1343; United States v. Powell, 576 F.3d 482, 490-91 (7th Cir.2009). Likewise, the evidence offered to prove that Perez-Rodriguez used a passport obtained with a false application was ample; a passport in Guajardo’s name was issued to the defendant after he lied about his identity in the application, and then in January 2007 he presented that fraudulent passport at O’Hare to reenter the country from Mexico. See 18 U.S.C. § 1542; United States v. Connors, 441 F.3d 527, 531 (7th Cir.2006). And as far as the charge that Perez-Rodriguez possessed and intended to use at least five forms of false identification, the documents recovered during the search of his house provided overwhelming evidence. See 18 U.S.C. § 1028(a)(3); United States v. Campa, 529 F.3d 980, *7041003 (11th Cir.2008). As counsel says, a sufficiency challenge to any of these convictions would be frivolous.
Counsel also concludes that it would be frivolous to lodge a sufficiency challenge against the defendant’s convictions for aggravated identity theft. As relevant here, 18 U.S.C. § 1028A(a)(l) makes it a crime to use or possess without authorization “a means of identification of another person” to commit a felony enumerated in subsection (c) of the statute. See Flores-Figueroa v. United States, — U.S. ---, ---, 129 S.Ct. 1886, 1894, 173 L.Ed.2d 853 (2009); United States v. Cox, 577 F.3d 833, 838 (7th Cir.2009). Perez-Rodriguez was charged with two counts: the first for using Guajardo’s name and date of birth in relation to his § 1542 offense at O’Hare in January 2007, and the second for using and possessing Guajardo’s name, date of birth, and Social Security in relation to the § 1028(a)(3) offense committed in May 2008. Names, dates of birth, and Social Security numbers are all means of identification, 18 U.S.C. § 1028(d)(7)(a), and both § 1542 and § 1028(a)(3) are enumerated felonies, see 18 U.S.C. § 1028A(c)(4), (c)(7); United States v. Gomez, 580 F.3d 1229, 1233 (11th Cir.2009); United States v. Guillen-Esquivel, 534 F.3d 817, 817 (8th Cir.2008). As counsel notes, the government also had to prove that Perez-Rodriguez knew he was using identifiers belonging to a real person, see Flores-Figueroa, 129 S.Ct. at 1888-89, but an argument that he did not would be frivolous. The defendant possessed a copy of Guajardo’s birth certificate, he had used the information on that certificate to obtain the Social Security number assigned to Guajardo, he had been told by the IRS that the Social Security number he was using was assigned to someone else, he had told the prosecutor’s office in Lake County, Indiana, that he knew about the “other” Arthur Guajardo, and he had fended off the Blue Island police when they investigated the real Guajardo’s allegation that the defendant had stolen his identity. The jury was correctly instructed on this knowledge element, and though Perez-Rodriguez asserts in his Rule 51(b) response that he did not know at the outset that Guajardo was a real person, the evidence shows that he certainly knew in 2007 and 2008 when he committed the two violations of § 1028A.
Counsel next discusses whether Perez-Rodriguez could argue that the district court abused its discretion by granting the government’s pretrial motion to introduce his 1990 and 1992 applications for social security numbers, his 1994 passport application, his letter concerning the child-support matter, and his statements to the Blue Island detective. Counsel concludes that his potential argument would be frivolous, and we agree. The government proceeded cautiously because it was concerned that this evidence might be viewed as “other crimes” evidence, see Fed.R.Evid. 404(b), but the district court correctly recognized that all of the evidence was direct proof of the charged crimes. See United States v. Edwards, 581 F.3d 604, 608 (7th Cir.2009); United States v. Lane, 323 F.3d 568, 581 (7th Cir.2003).
Counsel also considers whether Perez-Rodriguez could challenge his overall prison sentence. In arriving at a total of 57 months, the district court first imposed concurrent terms of 21 months for the violations of § 1343, § 1542, and § 1028(a)(3). The court then imposed mandatory, two-year prison terms on the convictions for aggravated identity theft. See 18 U.S.C. § 1028A(a)(l). By statute, the district court was required to run the first of those terms consecutively to the prison sentences on the other three counts, id. § 1028A(b)(2), but the court retained the discretion to run the second 24-month *705term partly or wholly concurrently with the first, id. § 1028A(b)(2). The court chose to make the terms run together for 12 of the 24 months, for a total of 36 months.
We agree with counsel that any challenge to this sentencing scheme would be frivolous. Twenty-one months is within the guidelines range calculated by the district court for the counts that did not carry mandatory terms, and counsel has not identified any potential error in the court’s application of the guidelines. A sentence within the guidelines range is presumed reasonable, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007), so in the absence of a strong rebuttal to that presumption, a challenge based on the length of this portion of the sentence would be frivolous. And in settling on total incarceration of 57 months, the court evaluated all of the arguments in mitigation made by Perez-Rodriguez but concluded that the duration of his criminal conduct, when viewed in relation to the harm it caused Guajardo, foreclosed a more lenient sentence. Counsel sees nothing unreasonable in that conclusion, nor do we.
Accordingly, we Grant the motion to withdraw and Dismiss the appeal.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476277/
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ORDER
Hua Chen, a citizen of the People’s Republic of China, petitions for review of an order of the Board of Immigration Appeals denying his motion to reopen deportation proceedings. We deny the petition to the extent that we have subject-matter jurisdiction.
Chen entered the United States without valid entry documents in 1990. In 1993 he applied for asylum, withholding of deportation, and protection under the Convention Against Torture, claiming that he had a well-founded fear of persecution if he returned to China because he participated in pro-democracy demonstrations in 1989 and then illegally fled the country. After numerous continuances and a change of venue, Chen’s application was finally adjudicated in 2000. The immigration judge denied all relief and issued a deportation order. The Board of Immigration Appeals affirmed the decision in 2002, but Chen remained in the United States.
In 2008 Chen filed a motion through counsel asking the Board to reopen his deportation proceedings in light of what he characterizes as “new and previously unavailable” evidence of changed country conditions. See 8 U.S.C. *707§ 1229a(c)(7)(C)(ii). At the time he filed this motion, Chen was in removal proceedings under a different name that he apparently gave to police in Chicago after a traffic stop. In the motion Chen alleges that his girlfriend gave birth to their daughter in 1999 in violation of China’s family-planning policy, and that since 2007 he has practiced Falun Gong and participated in protests against the Chinese government. Chen also maintains that local officials in his hometown in Fujian Province are now aware of his activities in America and want him to return to China so that he can be punished.
The materials Chen submitted with his motion include a child’s birth certificate, photographs of himself participating in Falun Gong activities, and what purports to be a notice from the village committee in his hometown ordering his parents to urge him to return to China to receive punishment for fathering a child out of wedlock, practicing Falun Gong, and applying for asylum. The Board concluded that Chen had not met his burden of establishing materially changed country conditions as would be necessary to avoid the 90-day deadline that ordinarily applies to motions to reopen. See 8 U.S.C. § 1229a(e)(7)(C)(i), (ii). The Board noted that the father identified in the child’s birth certificate does not share Chen’s name or date of birth (or the name Chen gave when he was detained in Chicago); the Board also observed that Chen did not mention the child in 2000 when testifying before the immigration judge. In addition, the Board declined to consider the notice from the village committee because it was not authenticated as required under 8 C.F.R. § 1287.6. The Board distinguished Lin v. Mukasey, 532 F.3d 596 (7th Cir.2008), where we relied on the petitioner’s submission of a letter from her hometown village committee — the authenticity of which the government did not doubt — to hold that she had established changed country conditions. In contrast with Lin, the Board explained, the Department of Homeland Security had not conceded the authenticity of Chen’s evidence.
In his petition for review, Chen challenges the Board’s conclusion that he did not demonstrate a material change in country conditions. This ruling is the kind of determination that we lack jurisdiction to review except as to claims that the ruling rests on a constitutional or legal error. See Sharashidze v. Mukasey, 542 F.3d 1177, 1179 (7th Cir.2008); Kucana v. Mukasey, 533 F.3d 534, 538 (7th Cir.2008), cert. granted, — U.S. ---, 129 S.Ct. 2075, 173 L.Ed.2d 1132 (2009) (argued Nov. 10, 2009). Chen maintains that the Board abused its discretion by “failing to consider significant evidence in the record.”
Chen principally argues that the Board erroneously refused to consider the village committee notice because he failed to authenticate it as required by 8 C.F.R. § 1287.6. This is a question of law that we may entertain. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008), cert. denied, --- U.S. ---, 129 S.Ct. 737, 172 L.Ed.2d 728 (2008). Lack of compliance with § 1287.6 is not a valid basis for immigration courts to disregard relevant evidence unless there are additional reasons to doubt its authenticity. Castilho de Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir.2009); see also Shtaro v. Gonzales, 435 F.3d 711, 717 (7th Cir.2006) (explaining that failure to authenticate evidence “does not amount to presumptive proof of falsity”); Georgis v. Ashcroft, 328 F.3d 962, 969 (7th Cir.2003) (noting that compliance with regulation is “not the only way” to authenticate evidence introduced in immigration courts). The Board did not cite the discrepancies in Chen’s other evidence as a basis for doubting the authenticity of the notice, so arguably the Board should not have disregarded it.
*708But any error was harmless because the notice is not evidence of changed country conditions. In his brief to this court, Chen describes the notice as evidence that China’s family-planning policy is presently “being enforced more stringently” in his hometown, but it says nothing of the sort. The notice shows, at most, that Chinese officials want Chen to return to China to face unspecified punishment, but their interest in him is based on his “anti-government activities in the U.S.”— applying for asylum, having a child out of wedlock, and participating in Falun Gong. Chen applied for asylum in 1993 and allegedly fathered a child in 1999. He says that he began practicing Falun Gong in 2007, but it has been banned in China since 1999. See Bureau of Democracy, Human Rights & Labor, U.S. Dep’t of State, China: Country Report on Human Rights Practices (Feb.2000), available at http:// www.state.gov/g/drl/rls/hrrpt/1999/284.htm. Chen’s evidence does not suggest that the Chinese government would view his conduct more harshly now than in 2002 when his asylum proceedings ended; he fears returning to China not because country conditions have changed, but because his personal conditions have changed. This is not a legitimate basis for reopening Chen’s deportation proceedings. See Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.2007) (explaining that alien who remains in U.S. after being ordered deported may not use “interval of unauthorized presence in the United States to manufacture a case for asylum”); see also Joseph v. Holder, 579 F.3d 827, 834-35 (7th Cir.2009); Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.2005).
What is left is Chen’s contention that the Board erroneously focused only on the birth of his child and did not evaluate whether his Falun Gong activities also constituted evidence of changed country conditions. But Chen is incorrect. The Board addressed all of his arguments in its order, and his opposition to the Board’s decision boils down to disagreement with the weight that the Board placed on his evidence en route to its discretionary decision to deny his petition — a challenge that we lack jurisdiction to entertain. See Huang, 534 F.3d at 621. But we add— given the grant of certiorari in Kucana— that if we had jurisdiction over this aspect of Chen’s petition, we would deny it on the merits. As discussed above, Chen provided evidence only of changes in his personal circumstances, not the country conditions in China.
Accordingly, we DENY Chen’s petition to the extent that it challenges the Board’s refusal to consider his evidence for lack of authentication; we otherwise DISMISS the petition.
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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/8476279/
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ORDER
Brian Jones, an Illinois prisoner, was housed at Lawrence Correctional Center during 2004 and had a number of problems with the way Lawrence was run. He is black and always had black cell mates; this led him to conclude that inmates are assigned to cells based solely on race. Further, between April and July 2004 the prison’s tap water allegedly became rust-colored and made Jones sick, but officials rejected his request to be tested for radiation poisoning. Jones also says that employees went through his cell and opened an item of legal mail, placed him in segregation without justification, and assaulted him. In October 2004, after his grievances about these problems had been rejected, Jones filed suit. The district court dismissed most of his claims at initial screening, see 28 U.S.C. § 1915A, but allowed Jones to proceed with his claims that the cell assignments violated the Equal Protection Clause and that the defendants were deliberately indifferent to a serious medical need by refusing to test him for exposure to radiation. On those claims the court later granted summary judgment for the defendants.
On appeal, Jones first argues that the district court erred in granting summary judgment on his equal protection *711claim. Race-based classifications in prison are presumptively suspect and subject to strict scrutiny, Johnson v. California, 543 U.S. 499, 509, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), but racial segregation that results from policies based on a “bona fide, colorblind concern” for prisoner safety does not violate the Equal Protection Clause, Harris v. Greer, 750 F.2d 617, 619 (7th Cir.1984). Although Jones introduced affidavits from several inmates who assert that blacks and whites have never celled together at Lawrence, defendant Garnett’s affidavit states that inmates of different races were occasionally — though rarely— celled together while he was warden, and that this infrequency was the unintentional byproduct of efforts to promote safety and limit gang violence. Garnett explained that many gangs are organized along racial lines, preach racial superiority, and encourage violence against other races. Efforts to reduce gang violence are not discriminatory, and Jones’s contention that there is not a full-fledged “racial gang war” at Lawrence does not undermine their legitimacy. See Borzych v. Frank, 439 F.3d 388, 391 (7th Cir.2006) (“An interest in curtailing violence within prison walls is compelling.”); Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir.2005) (acknowledging “the reality that prison gangs are a manifest threat to prison order”); Harris, 750 F.2d at 619. The district court properly granted summary judgment because Jones did not produce any evidence undermining the warden’s explanation for the cell assignments at Lawrence and showing that inmates were assigned to cells because of, not merely in spite of, their race. See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
Jones also argues that the district court incorrectly granted summary judgment on his Eighth Amendment medical claim, but he did not show an objectively serious medical condition or that officials were indifferent to that condition. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 829 (7th Cir.2009). Jones submitted affidavits confirming that Lawrence’s drinking water was discolored from April to July 2004, but the defendants produced lab reports establishing that it was not contaminated. They also provided Jones’s medical records from the same period showing that he was regularly seen by medical staff and was not seriously ill, so there was no evidence that his needs were not met. See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 592 (7th Cir.1999). Further, although Jones filed a grievance when the medical staff at Lawrence refused to test him for radiation exposure, he did not show that the defendants’ involvement in denying the grievance constituted deliberate indifference. The defendants permissibly relied on the medical staff’s professional assessment that a test was unnecessary. See Lee v. Young, 533 F.3d 505, 511 (7th Cir.2008).
Jones next challenges the district court’s denial of his request for assistance in obtaining counsel. The district court did not abuse its discretion in denying Jones’s request because the court applied the correct legal standard and based its decision on facts supported by the record. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.2007) (en banc). The district court initially determined that Jones had not made a reasonable effort to obtain counsel, but on reconsideration the court denied his request based on its determination that his claims were not complex and that he could competently litigate them. This was the appropriate inquiry, see id. at 654-55, and the record supports the court’s conclusion that an attorney was not necessary during the pretrial phase of the litigation: Jones had personal knowledge of the facts relevant to his claims, a basic understanding of *712procedural rules, and some access to a law library, copy machine, and postal services. See Jackson v. Kotter, 541 F.3d 688, 700-01 (7th Cir.2008).
Jones also contends that the district court erred in denying him “full discovery.” He insists that if all of his discovery requests had been granted he would have survived summary judgment on his claims of racial segregation and deliberate indifference, but he does not identify any of the discovery rulings he contests. This undeveloped argument gives us no reason to conclude that the district court abused its discretion. See Tenner v. Zurek, 168 F.3d 328, 330-31 (7th Cir.1999); Finance Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 528 (7th Cir.1998).
Finally, Jones argues that the district court improperly dismissed a number of his claims on initial screening. See 28 U.S.C. § 1915A. First, he contests the dismissal of his claim that his cell was searched and his property destroyed in violation of the Fourth and Fourteenth Amendments. The district court was correct to dismiss this claim. The Fourth Amendment’s proscription against unreasonable searches does not apply to prison cells. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Hanrahan v. Lane, 747 F.2d 1137, 1139 (7th Cir.1984). In addition, a state employee’s unauthorized acts depriving a prisoner of personal property do not violate the Due Process Clause if state law provides a meaningful post-deprivation remedy, and Illinois law does. See Hudson, 468 U.S. at 533, 104 S.Ct. 3194; Murdock v. Washington, 193 F.3d 510, 512-13 (7th Cir.1999); Kimbrough v. O’Neil, 523 F.2d 1057, 1059 (7th Cir.1975).
Second, Jones argues that the district court erred in dismissing his claim that a mail clerk improperly opened one piece of legal mail, but his allegations are insufficient to state a constitutional claim. Jones does not allege that the act of opening his mail adversely impacted his ability to litigate a specific matter. See Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir.2005); Walters v. Edgar, 163 F.3d 430, 434 (7th Cir.1998); Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Nor does he allege that this incident was part of an ongoing practice of interfering with his legal mail. See Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir.1996); Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304, 306 (7th Cir.1993).
Third, Jones challenges the dismissal of his claims that he was unconstitutionally placed in segregation. He contests both his repeated segregation for declaring hunger strikes and a nine-day period of confinement that he now argues was imposed in retaliation for filing grievances. The district court correctly dismissed these claims. Although inmates have a Fourteenth Amendment liberty interest in avoiding placement in conditions posing significant hardships atypical of ordinary prison life, Wilkinson v. Austin, 545 U.S. 209, 222-23, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005); Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), they do not have a liberty interest in avoiding placement in discretionary segregation, meaning segregation “imposed for administrative, protective, or investigative purposes,” Townsend v. Fuchs, 522 F.3d 765, 771-72 (7th Cir.2008). Jones’s complaint reveals that the segregation he challenges was discretionary: during hunger strikes he was segregated for his protection, and the nine-day segregation resulted not from his filing of grievances but from the need to investigate after he mailed the warden a letter saying that he would defend himself if accosted by an officer.
Lastly, Jones argues that the district court should not have dismissed his *713claim that a guard violated the Eighth Amendment by pushing him into his cell, and that officials then retaliated against him for reporting the incident. But on these allegations Jones pleaded himself out of court. The de minimis use of force does not violate the Eighth Amendment. O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir.2006); Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir.2001); DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir.2000). Although Jones now asserts that the force he experienced was not de minimis, his complaint and attachments alleged the contrary. His grievance form about the incident (which he attached to his complaint) alleges that the guard “pushed [him] hard,” and his complaint asserts only that his arm was bruised. A single shove that results in bruising is de minimis force that will not support a claim of excessive force. DeWalt, 224 F.3d at 620. Jones’s grievance form also contradicts his claim of retaliation. He wrote that he was placed in segregation after he declared a hunger strike and remained there while officials investigated a disciplinary ticket that the guard who pushed Jones gave him for disobeying orders. This is the sort of “administrative, protective, or investigative” segregation that does not implicate the Constitution. See Townsend, 522 F.3d at 771.
Jones raises additional arguments on appeal, which we have considered, but they are meritless and do not warrant further discussion.
Accordingly, we AFFIRM the district court’s judgment.
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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/8476281/
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ORDER
Aaron Pinkston-El-Bey is an Illinois prisoner. He is also a member of the Washitaw Nation of Muurs, which his complaint explains are a people indigenous to North America, yet descended from the Moors of North Africa, who practice a unique form of Islam. After prison officials shaved off his dreadlocks, which he wears for religious reasons, he filed a sprawling suit under 42 U.S.C. § 1983 against the governor of Illinois, the director of the Illinois Department of Corrections, and the wardens and chaplains of multiple Illinois prisons. Pinkston-ElBey complained that these state officials had conspired to deprive him and all other Washitaw Muurs in the Illinois prison system of rights guaranteed by the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause. The district court dismissed the suit on preliminary review for failure to state a claim. See 28 U.S.C. § 1915A(b)(l).
Pinkston-El-Bey insists that his complaint outlines the alleged constitutional violations and implicates the defendants; that is all he must do, he argues. We disagree. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, — U.S. ---, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Instead, a complaint must allege facts that allow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949; see also Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.2009). Yet Pinkston-El-Bey’s complaint alleges no facts that plausibly suggest he is entitled to relief; his sweeping allegations of unconstitutional conspiracies hatched among a broad swath of Illinois officials are too vague to state a claim.
Pinkston-El-Bey also argues that before dismissing his suit, the district *715court should have allowed him to move for class certification or at least to amend his complaint. But § 1915A does not require the district court to be so accommodating. No motion for class certification was pending. And the district court had already allowed Pinkston-El-Bey an opportunity to amend his original complaint, this putative class action being the result.
Pinkston-El-Bey’s complaint and appeal are both frivolous, so he has accumulated two strikes. See 28 U.S.C. § 1915(g); Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir.1997).
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476283/
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ORDER
Two decades ago the state of Illinois seized John Walliser’s home in order to clear space for a highway. Walliser has since filed eight lawsuits challenging his eviction and subsequent relocation; three of his cases have found their way to this court. Twice we have ruled that the doctrine of claim preclusion barred his argument that the Illinois Department of Transportation (“IDOT”) violated his due process rights. Walliser v. Mineta, 33 Fed.Appx. 826, 828 (7th Cir.2002) (unpublished); Walliser v. Brown, 124 F.3d 206, 1997 WL 471347 (7th Cir.1997) (unpublished). Walliser now returns for the third time with more or less the same claim, and again we affirm the district court’s dismissal of his complaint for failure to state a claim.
Walliser’s home was located on the proposed construction site of a new stretch of Interstate 355 in Homer Township. In 1990 the state condemned his property, purchased it, and then leased it back to him for a two-year term. Walliser intended to move his home and business at the expiration of his lease, but zoning restrictions complicated his plans, and so he remained on the condemned parcel and eventually stopped paying rent. In 1999, long after his lease had expired and after seven years of litigation, Walliser vacated the residence, and in 2004 he met with IDOT officials to negotiate relocation assistance. The negotiations culminated in a 2005 letter from IDOT notifying Walliser that he was eligible for relocation payments but not for replacement housing assistance. The record does not reflect whether Walliser accepted the money.
Walliser has repeatedly asserted that the state seized his property without providing hearings required by the Illinois Displaced Person Relocation Act, see 310 III. Comp. Stat. 40/0.01 et seq. See, e.g., Walliser v. Brown, 308 Ill.App.3d 1108, 261 Ill.Dec. 906, 764 N.E.2d 197 (Ill.App.Ct.1999); Brown, 124 F.3d at 206; Mineta, 33 Fed.Appx. 826 (7th Cir.2002); Walliser v. Martin, No. 1-96-0408, slip op. at 6 (Ill.App.Ct. May 11, 2007). He renewed that argument in the district court, except this time he asserted that his injury arose not from his eviction but from the 2005 letter denying him replacement housing assistance without a full hearing. He named three current or former state officials as defendants: IDOT Secretary Gary Hannig, Illinois Attorney General Lisa Madigan, and former IDOT Secretary Milton Sees. He sued Hannig in his official capacity, Sees in his individual capacity, and Madigan in both her official and individual capacities. The district court granted the defendants’ motion to dismiss on res judicata grounds. Unpersuaded that IDOT’s 2005 correspondence with Walliser constituted a new injury, the court suggested that Walliser was trying to style a new claim out of old facts. For the same reason the court denied Walliser’s motion to reconsider. This appeal followed.
Walliser takes issue with the district court’s ruling that his claim was precluded and that it arose from the same set of facts as his previous suits. The doctrine *717of claim preclusion precludes a party from reasserting claims that were or could have been raised in a prior civil action. Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir.2007) (applying Illinois law). The preclusive effect of a state court’s judgment on a subsequent suit in federal court is determined by state law. See 28 U.S.C. § 1738; see also Hicks, 479 F.3d at 471; Orlando Residence Ltd. v. GP Credit Co., 553 F.3d 550, 557 (7th Cir.2009). Under Illinois law a previous judgment has preclusive effect on a later suit when: 1) the prior litigation resulted in a final judgment on the merits; 2) the two suits involve the same cause of action; and 3) the two suits involve the same parties or their privies. Hicks, 479 F.3d at 471 (citing Nowak v. St. Rita High Sch, 197 Ill.2d 381, 258 Ill.Dec. 782, 757 N.E.2d 471, 477 (2001).
The district court correctly concluded that claim preclusion bars Walliser’s claims against Secretary Hannig and Attorney General Madigan in their official capacities. First, an Illinois appellate court recently affirmed the dismissal of an identical post-relocation claim against IDOT on res judicata grounds. Walliser v. Martin, No. 1-06-0408, slip op. at 9. That was a final judgment on the merits. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476-77, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). As for the second element, both suits sprang from the same operative event — the 2005 letter from the department notifying Walliser that he was entitled to relocation payments but not replacement housing assistance. Walliser argues that the state court should never have applied res judicata — and that may be so — but our inquiry is limited to whether the two claims arose from the same transaction, see Licari v. City of Chicago, 298 F.3d 664, 667 (7th Cir.2002), and we agree with the district court that they did. To the extent Walliser wishes to use this federal suit to challenge the disposition of the state suit, such a claim would be barred under the Rooker-Feldman doctrine. See Freedom Mortgage v. Burnham Mortgage, Inc., 569 F.3d 667, 671 (7th Cir.2009). As for the third element, identity of parties is present with respect to defendants Hannig and Madigan (in their official capacities), who are in privity with the government by virtue of their offices. See Licari, 298 F.3d at 667. Accordingly, the district court correctly concluded that claim preclusion bars the actions against Hannig and Madigan (leaving claims against Madigan and former IDOT Secretary Sees in their individual capacities).
In any event, all of Walliser’s claims, including those remaining against defendants Madigan and Sees in their individual capacities, can be dismissed as untimely. Illinois has a two-year statute of limitations for § 1983 claims. 735 III. Comp. Stat. 5/13-202 (2008); Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). Walliser has stated that the events underlying the present suit accrued between 2004 and 2005. Spotting him even the later date, the statute of limitations would have expired in 2007, and Walliser did not file the current complaint until nearly two years later, in 2009.
Accordingly, we AFFIRM the district court’s judgment. Additionally, because this is his third filing in federal court asserting essentially the same claim, we warn him that we may sanction him if he continues to make frivolous filings, see Alexander v. United States, 121 F.3d 312 (7th Cir.1997).
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https://www.courtlistener.com/api/rest/v3/opinions/8476287/
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ORDER
Laura Jennings sued her former employer Sallie Mae, Inc., under a variety of antidiscrimination statutes. After dismissing most of Jennings’s claims at screening, see 28 U.S.C. § 1915(e)(2)(B)(ii), the district court ultimately dismissed the suit based on her failure to participate in dis*721covery. Jennings appeals and we affirm the district court’s judgment.
Jennings worked as a loan consolidating servicing specialist at Sallie Mae from May 2006 to July 2007, when she was discharged for excessive absenteeism. In her complaint brought under Title VII, 42 U.S.C. § 2000e-2; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; the Rehabilitation Act, 29 U.S.C. § 701; and Section 1981, 42 U.S.C. § 1981, Jennings alleged that Sallie Mae harassed her and violated her civil rights by counting her approved sick leave as unplanned absences. The district court found that the complaint stated a viable claim only under the ADA and dismissed the other claims. See 28 U.S.C. § 1915(e)(2)(B)(ii). Jennings later amended her complaint to assert that Sallie Mae failed to make reasonable accommodations and punished her for her “rota-tor cuff tendonitis disability.”
During discovery, Jennings refused to respond to interrogatories, attend her scheduled deposition, or authorize Sallie Mae to obtain records related to her alleged disability. After Jennings disobeyed the district court’s directive to confirm that she would cooperate in the discovery process, the court granted Sallie Mae’s motion to dismiss under Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure and ordered Jennings to pay Sallie Mae $500. The court concluded that her actions were “unjustified, abusive of the discovery process, abusive of the defendant’s time and of other resources, a disregard of the court’s orders and procedures, and fully contrary to the spirit and letter of the Federal Rules of Civil Procedure.”
Jennings’s brief on appeal is difficult to parse, but she seems to argue, first, that the district court overstepped its authority by dismissing the non-ADA claims in her initial complaint and restricting the scope of her amended complaint. The court correctly dismissed Jennings’s non-ADA claims because her complaint failed to allege discrimination based on race, sex, national origin, religion, or age, as required to state a claim under Title VII, the ADEA, or Section 1981. See 42 U.S.C. § 2000e-2 (prohibiting discrimination based on “race, color, religion, sex, or national origin”); 29 U.S.C. § 621 (prohibiting age discrimination); Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996) (explaining that section 1981 prohibits racial discrimination). And Sallie Mae is a private employer, so the Rehabilitation Act was inapplicable. See Silk v. City of Chicago, 194 F.3d 788, 798 n. 6 (7th Cir.1999). Further, because the court properly dismissed Jennings’s non-ADA claims, it had discretion to prevent her from repleading them in her amended filing. See Crichton v. Golden Rule Ins. Co., 576 F.3d 392, 396 (7th Cir.2009).
Jennings next generally challenges the district court’s denial of her repeated requests for assistance in obtaining counsel. The district court, however, applied the correct legal standard—inquiring first whether Jennings had reasonably attempted to obtain an attorney and then determining the complexity of the case and her ability to present her claims—and based its decision that counsel was unnecessary on facts supported by the record. See Pruitt v. Mote, 503 F.3d 647, 654-55, 658 (7th Cir.2007) (en banc). As the court noted, Jennings is literate, has filed lawsuits in the past, has personal knowledge of the facts relevant to her claims, amended her complaint in accordance with the district court’s directions, and submitted documents in support of her claims.
Finally, Jenkins asserts that the district court erred by dismissing her case and imposing monetary sanctions based on her failure to participate in discovery. Be*722cause Jennings repeatedly failed to obey court orders to permit discovery and refused to appear for her scheduled deposition, the court did not abuse its discretion in dismissing her case. See Fed.R.CivP. 37(b)(2)(A)(v), (d)(l)(A)(i); 41(b). Nor did the court abuse its discretion by imposing monetary sanctions. The Federal Rules require sanctioning a party that has unjustifiably disobeyed a discovery order, Fed.R.Civ.P. 37(b)(2)(C), (d)(3), and the district court explained that the $500 was meant to cover a portion of the fees Sallie Mae incurred in filing and supplementing its motion to dismiss.
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
Because this case presents a pure legal question, the background facts are not particularly relevant. In 1998, Derrick Turner was convicted of conspiracy to possess with intent to distribute and possession with intent to distribute crack cocaine and powder cocaine. He was sentenced to 360 months’ imprisonment as to each count, to run concurrently; Turner is currently serving this sentence. In June 2008, Turner filed a pro se motion seeking to reduce his sentence under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce a term of imprisonment previously imposed on a defendant if the sentencing range for the conviction was reduced by the Sentencing Commission subsequent to the defendant’s sentencing. This reduction is contingent on consistency with applicable policy statements, which in this case are found in U.S.S.G. § 1B1.10. Section lB1.10(a)(3) provides that “proceedings under 18 U.S.C. 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.” Section 1B1.10(b)(2)(A) provides that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.”
The basis for Turner’s motion is retroactive Amendment 706, which recognized the disparity in crack and powder cocaine guidelines and reduced the base offense level two levels for crack cocaine offenses, thereby resulting in a lower sentencing range for a defendant. Turner’s counsel also filed a motion for sentence reduction. The district court granted the motions, and reduced Turner’s sentence from 360 months’ imprisonment to 310 months’ imprisonment, a sentence that fell within the amended guidelines range of 292-365 months. Turner appealed this reduction, alleging that (1) the binding nature of the policy statements explicitly referenced in § 3582(c)(2) improperly constrain a district court’s discretion; (2) applying the mandatory § 3582(c)(2) scheme to pre-Booker defendants violates the Sixth Amendment; (3) U.S.S.G. § 1B1.10 violates the Sentencing Commission’s obligation to promulgate policy statements that are consistent with § 3553(a)(2); and (4) the Supreme Court cases of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), permit sentence reductions that fall below the amended guidelines range under § 3582(c)(2).
Turner first alleges that § 1B1.10 impermissibly cabins a district court’s discretion to provide sentencing relief. But Turner’s argument is foreclosed by our recent decision in United States v. Cunningham, 554 F.3d 703 (7th Cir.2009). In Cunningham, we rejected the argument that adhering to the limitations of retroactive sentencing relief prescribed in § 1B1.10 was contrary to Booker. Id. at 707. We noted that unlike a full sentencing proceeding, a proceeding under § 3582(c)(2) only allows for a downward departure in sentencing adjustments. Significant to our decision was the fact that original sentencing proceedings and sentence modification proceedings are legally *724distinct. “Contrary to the defendants’ contention, there is no ‘inherent authority’ for a district court to modify a sentence as it pleases; indeed a district court’s discretion to modify a sentence is an exception to the statute’s general rule that ‘the court may not modify a term of imprisonment once it has been imposed.’” Id. at 708 (citing 18 U.S.C. § 3582(c)).
Further supporting our decision was the idea that because Booker itself focused on congressional intent, any interpretation of § 3582(c)(2) should do the same. An examination of congressional intent in § 3582(c)(2) makes it clear that Congress intended § 3582(c)(2) sentence modifications to comport with the Commission’s policy statements, a result that would be impossible if in fact Booker rendered the guidelines advisory for purposes of sentence modifications. Id. Therefore, Turner’s argument that § 1B1.10 impermissibly constrains a district court’s discretion in sentence modifications proceedings is without merit.
Turner’s second argument is that the § 3582(c)(2) scheme violates his Sixth Amendment rights because Booker requires a jury determination of facts essential to punishment when a judge seeks to impose a sentence based on those facts. Turner argues that the guidelines cannot be mandatory in some instances and advisory in others, where the mandatory guidelines will require resentencing based on facts not initially found by a jury. Our previous discussion about the distinctive nature of § 3582(c)(2) proceedings forecloses this argument. Again, as we explained in Cunningham, a full Booker re-sentencing is not required in § 3582(c)(2) proceedings. Id. Because “Booker does not apply to the scores of defendants whose sentences were final when Booker was handed down[,][i]t would be unfair to allow a full Booker resentencing to only a subset of defendants whose sentences were lowered by a retroactive amendment.” Id. at 708-09.
Turner’s third argument also fails. As we held in Cunningham, § 1B1.10 is entirely consistent with the Commission’s duty to promulgate provisions that advance the purposes of § 3553(a)(2). We noted:
Having chosen to create a modification mechanism, Booker does not require Congress to grant the district courts unfettered discretion in applying it. Indeed, mandatory minimum sentences— which cabin the district courts’ discretion with regard to section 3553(a) factors — have been upheld as constitutional.
Section 3582(c)(2)’s direction that courts “shall consider the factors in Section 3553(a) to the extent they are applicable” does not undermine our conclusion. It is true that one of the factors in section 3553(a) is the Guidelines range, which Booker made advisory. However, section 3582(c)(2) states that a district court considers the section 3553(a) factors in making a reduction “consistent with the applicable policy statements issued by the Sentencing Commission.” There need not be a conflict: the statute can be viewed as requiring district courts to consider the section 3553(a) factors in deciding whether and to what extent to grant a sentence reduction, but only within the limits of the applicable policy statements.
Id. at 708 (citations omitted). Therefore, Turner’s third argument too was disposed of in Cunningham.
Finally, Turner argues that Booker, Kimbrough, and Gall should be read to allow sentences below the amended guideline range in the context of § 3582(c)(2) motions. This argument fails for two reasons. First, as we held in Cunningham, Booker is inapplicable in the § 3582(c)(2) *725context. Id. at 707 & n. 2. Second, none of these three cases referred to § 3582(c)(2) proceedings, and as we explained in Cunningham, because the context of sentencing proceedings are legally distinct from the context of sentencing reductions, these cases are inapplicable in the § 3582(c)(2) context. Id. at 707-08.
Because we addressed and dismissed all of the arguments presented by Turner in Cimningham, we affirm the district court’s reduction of Turner’s sentence to 310 months’ imprisonment under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10.
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Order
The judgment of the district court is vacated, and the case is remanded with instructions to reconsider in light of the position taken in the United States’ brief.
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https://www.courtlistener.com/api/rest/v3/opinions/8476294/
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ORDER
Vernon Rollins pled guilty to three counts of distributing crack cocaine. See 21 U.S.C. § 841(a)(1); § 841(b)(1)(C). At his plea hearing Rollins admitted that he distributed a total of 4.9 grams of crack over the course of three separate drug sales. At sentencing, the district court found him accountable for 2.24 kilograms of crack as relevant conduct. See U.S.S.G. § lB1.3(a)(l). The court imposed a below-guidelines sentence of 120 months’ imprisonment for each count, with each sentence to run concurrently with each other. Rollins filed a notice of appeal, but his appointed counsel moves to withdraw because he is unable to identify a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rollins opposes counsel’s motion. See Cíe. R. 51(b). We limit our review to the potential issues addressed in counsel’s facially adequate brief and in Rollins’s response. See United *728States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Both counsel and Rollins consider whether the district court erred in attributing to Rollins 2.24 kilograms of crack as relevant conduct. Rollins specifically challenges the court’s reliance on the testimony of certain government witnesses, Dekal James and Broderick Wooters, both of whom had pled guilty to distributing crack and were cooperating with the government in hopes of receiving reduced sentences. James testified that from December 2005 to September 2006, both he and Rollins frequented the same drug house in Mt. Vernon, Illinois, where he routinely observed Rollins buying 1 to 2 ounces of crack and, on multiple occasions, saw Rollins buying larger quantities ranging from 2.25 ounces to 18 ounces. Wooters testified that Rollins’s mother is his godmother, and that Rollins began selling him drugs when he was 16 years of age, and further, that Rollins sold him an ounce of crack once or twice a week during the early summer of 2008. The district court credited both James and Wooters and, based on James’s testimony alone, found Rollins responsible for 2.04 kilograms.
We agree with counsel that any challenge to the relevant drug quantity would be frivolous. The government must prove uncharged drug quantities by a preponderance of the evidence, United States v. Artley, 489 F.3d 813, 821 (7th Cir.2007), and a sentencing court may assess relevant conduct by considering any evidence that bears a “sufficient indicia of reliability,” U.S.S.G. § 6A1.3(a); see United States v. Hankton, 432 F.3d 779, 789-90 (7th Cir.2005). A district court is entitled to credit testimony regardless of whether it is corroborated. See, e.g., United States v. Sainz-Preciado, 566 F.3d 708, 713-14 (7th Cir.2009). We review the district court’s credibility determinations for clear error. See United States v. Clark, 538 F.3d 803, 813 (7th Cir.2008); United States v. Blalock, 321 F.3d 686, 690 (7th Cir.2003). The court explicitly found the testimony of both witnesses credible — a finding we would not disturb on clear-error review. See Clark, 538 F.3d at 813; Blalock, 321 F.3d at 690. Rollins provided no evidence at sentencing in contradiction of the witnesses’ testimony — save for his unsworn statement during allocution that the witnesses were lying — nor did he establish that the court relied on inaccurate information. See Sainz-Preciado, 566 F.3d at 713; Hankton, 432 F.3d at 790. Any argument challenging the government witnesses’ credibility would be frivolous.
Rollins also contends that the inclusion of additional drug quantities as relevant conduct was improper and unconstitutional because the additional amounts were not charged in the indictment nor presented to a jury. We have repeatedly explained that drug quantity need only be charged in the indictment or found beyond a reasonable doubt insofar as it establishes the statutory maximum sentence. See United States v. Washington, 558 F.3d 716, 719 (7th Cir.2009) (citing United States v. Booker, 543 U.S. 220, 233, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)); United States v. Kelly, 519 F.3d 355, 363 (7th Cir.2008); United States v. Hawkins, 480 F.3d 476, 477-78 (7th Cir.2007); United States v. Martinez, 301 F.3d 860, 864-65 (7th Cir.2002). In this case, Rollins pled guilty to three counts of distributing less than 5 grams of cocaine base and was therefore sentenced under § 841(b)(1)(C), which imposed a statutory maximum sentence of 20 years for each count. The district court considered the additional quantities of crack only to calculate Rollins’s advisory guidelines range, and his resulting sentence of 120 months for each count is well within the statutory maximum sentence he could have received for *729distributing less than 5 grams of crack. Thus, the additional drug amounts did not need to be charged in the indictment nor presented to the jury because the drug amounts did not effect the statutory maximum sentence.
Finally, Rollins argues that his trial counsel provided ineffective assistance. A claim of ineffective assistance, however, is best pursued in a collateral proceeding where the record must be fully developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Douglas Hill pleaded guilty to possession of a firearm by a felon, 18 U.S.C § 922(g)(1), and was sentenced to 84 months’ imprisonment. Hill appeals, but his appointed lawyers move to withdraw because they are unable to identify any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hill has not accepted our invitation to comment on counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
After his indictment Hill moved to suppress the gun on the ground authorities lacked reasonable suspicion for the stop and frisk which i*esulted in its discovery. See Teyry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At the evidentiary hearing on Hill’s motion, the district court heard testimony from two sheriffs deputies, Dominick Barcellona and Eric Pearson. Barcellona testified that in January 2008 he and Pearson, along with two other officers, responded to a 911 call from a woman who reported that her boyfriend, Hill, had chased her out of her house and was shooting at her. Barcellona stated that they arrived at the caller’s home within half an hour of her 911 call. According to Pearson, Hill emerged from the garage of the house and gestured toward something in his coat pocket. Pearson testified that he ordered Hill to the ground, handcuffed him, patted him down for weapons, and retrieved a handgun from his coat pocket. After the hearing the district court denied Hill’s motion to suppress, concluding that the 911 call provided the officers with reasonable suspicion. Hill’s conditional guilty plea allows him to challenge this ruling.
Counsel first consider whether Hill could challenge the seizure of the gun from his pocket on the ground that Deputy Pearson did not have reasonable suspicion to conduct a pat-down search. See Terry, 392 U.S. at 27, 88 S.Ct. 1868; United States v. Lawshea, 461 F.3d 857, 859 (7th Cir.2006). In evaluating the district court’s ruling, we would review de novo all questions of law, including the existence of reasonable suspicion. See Lawshea, 461 F.3d at 859; United States v. Johnson, 383 F.3d 538, 542 (7th Cir.2004). Hill had argued in the district court that he was stopped on the basis of an “anonymous tip,” but his girlfriend was not anonymous, see United States v. Drake, 456 F.3d 771, 774 (7th Cir.2006), and in any event we have held that even anonymous 911 calls can be sufficiently reliable to give police reasonable suspicion, see United States v. Wooden, 551 F.3d 647, 650 (7th Cir.2008); United States v. Hicks, 531 F.3d 555, 559-60 (7th Cir.2008). The caller, it is true, did not give her name, but she identified Hill as her boyfriend and gave the address of *731her house where the shots had been fired. The officers, therefore, had sufficient information to believe that a shooting had just occurred at or near the caller’s address. See United States v. Brewer, 561 F.3d 676, 678 (7th Cir.), cert. denied, — U.S. ---, 130 S.Ct. 216, 175 L.Ed.2d 149 (2009). Moreover, the fact that Hill gestured toward his pocket when the officers approached him provided the officers with even more justification for searching him. See United States v. DeBerry, 76 F.3d 884, 885 (7th Cir.1996). Thus, we agree with counsel that any potential claim that Deputy Pearson lacked reasonable suspicion for the pat-down search would be frivolous.
Counsel also consider whether Hill could argue that his guilty plea was not knowing and voluntary. Because Hill did not move to withdraw his plea in the district court, any challenge would be reviewed for plain error. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001). In assessing the plea colloquy, Hill’s lawyers perceive only one omission: the district court’s failure to mention that Hill might have to pay restitution. But restitution was neither contemplated nor ordered, so we agree with counsel that this omission would not rise to the level of plain error, and any potential challenge to Hill’s guilty plea on that basis would be frivolous.
Finally counsel consider whether Hill could argue that an 84-month prison sentence is unreasonable because the district court judge stated that the sentence would be consecutive to Hill’s sentence in state court that had yet to be imposed. Although the district court may not require a sentence to be served consecutively to a state sentence that will be imposed in the future, Romandine v. United States, 206 F.3d 731, 738-39 (7th Cir.2000), the district court’s error in this case would be harmless. The district court’s sentence would be presumptively reasonable because it sentenced Hill within the properly calculated guidelines range of 77 to 96 months. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). The sentencing transcript shows that the district court adequately considered all of factors listed in 18 U.S.C. § 3553(a). See United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006). Moreover, based on Hill’s 35 criminal history points, pending charges in 2 states, and 45 arrests for charges that were dismissed or for which dispositions were unknown, the district court could have easily imposed an above-guidelines sentence. See United States v. Jackson, 547 F.3d 786, 794 (7th Cir.2008). Thus, we agree with counsel that any potential challenge to Hill’s sentence would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Eddie Nalls pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a). After the Sentencing Commission retroactively reduced the offense level for most crack offenses, Nalls asked the district court to reduce his prison sentence. See 18 U.S.C. § 3582(e). The court refused on the ground that Nalls had sold more than 4.5 kilograms of crack, and thus could not benefit from the amendments. Nalls appeals, arguing that the district court con*736ducted improper factfinding to determine how much crack he had sold. We affirm.
For approximately one year Nalls and several others sold crack for the Bronx Street Gang in Gary, Indiana. In conjunction with the government’s investigation of this activity, Nalls decided to cooperate by preparing a statement describing the operation and his involvement. Following Nails’s guilty plea, the probation officer incorporated this cooperation statement into Nails’s presentence investigation report. The PSR described the operation of three crack houses in Gary, Indiana; each house sold approximately 84, 28, and 672 ounces of crack per month, respectively. According to the PSR, Nalls functioned as an overseer at two of the houses and worked regular shifts at the third. Based on this information as well as Nails’s statements regarding the time he spent at each house, the probation officer calculated that “[a]t the very least [Nalls] distributed or helped to distribute 59.53 kilograms of crack cocaine.”
In April 2003 the court conducted Nails’s sentencing hearing. Nalls declined the opportunity to challenge the PSR, so the court adopted the factual findings and guidelines calculations it contained without any further discussion of the exact drug quantity attributable to Nalls. The court found that Nalls was responsible for selling more than 1.5 kilograms of crack cocaine, and thus he was subject to the highest base offense level under U.S.S.G. § 2D1.1. After an adjustment to account for cooperation with the government, see U.S.S.G. § 5K1.1, the court sentenced Nalls to 151 months’ imprisonment.
In November 2007 the Sentencing Commission modified U.S.S.G. § 2D1.1, reducing the base offense level for most crack offenses by two levels and made that change retroactive. See U.S.S.G. supp. to app. C, 226-31, 253 (2009) (Amendments 706 and 713). When Nalls was sentenced, offenses involving 1.5 kilograms or more of crack cocaine were assigned the highest possible base offense level of 38. Under the amended guidelines, however, only offenses involving 4.5 kilograms or more of crack were assigned an offense level of 38. See U.S.S.G. § 2Dl.l(c); United States v. Hall, 582 F.3d 816, 817 (7th Cir.2009).
Shortly after the amendment was enacted, Nalls asked the district court to reduce his sentence under 18 U.S.C. § 3582(c), which allows a defendant to seek a sentence reduction if the sentence was based on a guidelines range that has subsequently been lowered. See U.S.S.G. § lB1.10(a)(2)(B) (policy statement); United States v. Lawrence, 535 F.3d 631, 634 (7th Cir.2008). The court denied the motion, finding Nalls ineligible for a sentence reduction because he was responsible for selling more than 4.5 kilograms of crack and therefore subject to the same total offense level under the amended guidelines.
On appeal Nalls challenges the district court’s conclusion that he was responsible for distributing more than 4.5 kilograms of crack. He argues that at sentencing he was found to be responsible for the distribution of only 1.5 kilograms and that the court conducted impermissible factfinding to hold him responsible for more than 4.5 kilograms. Specifically, he faults the district court for relying on the cumulative drug quantities in the PSR, which trace back to the three houses where Nalls and other gang members collectively sold crack cocaine, but do not reflect the quantities Nalls individually sold.
Nalls is correct that a § 3582(c) motion may not be decided by relying on new factual findings that are inconsistent with those made at the original sentencing, see United States v. Woods, 581 F.3d 531, 538 (7th Cir.2009); see also United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. *7372003); United States v. Adams, 104 F.3d 1028, 1030-31 (8th Cir.1997), but here the district court considered no such facts. Instead, the court relied on the factual findings in the very PSR that formed the basis for Nalls’s original sentence. These findings, to which there were no objections, adequately support a conclusion that Nalls was responsible for distributing more than 4.5 kilograms of crack cocaine. For more than a year, Nalls and other gang members ran three crack houses in Gary, Indiana, and through these operations, Nalls “distributed or helped to distribute 59.53 kilograms of crack cocaine.” Although the PSR did not specify how much of the 59.53 kilograms Nalls individually sold, the court did not abuse its discretion — given the substantial quantities described in the PSR and Nalls’s role as an overseer — in concluding that Nalls’s contribution far exceeded the 4.5 kilogram threshold. See Woods, 581 F.3d at 533, 539 (denying § 3582(c) motion after finding that defendants distributed more than 4.5 kilograms of crack cocaine even though PSR did not attribute specific quantities to each defendant).
Nalls’s attempt to undermine the PSR itself also falls short. He argues that, by describing drug quantities attributable to the three houses, the PSR does not hold him individually accountable for all the drug sales described in the PSR.1 But Nalls waived his right to challenge the factual bases for his sentence by failing to challenge them at sentencing and by pleading guilty. See, e.g., United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). In any event this argument is also factually erroneous: the PSR states that Nalls “distributed or helped to distribute ” crack in quantities far exceeding the 4.5 kilogram threshold. That he only “helped to distribute” some of these drugs does not make that conduct irrelevant to his sentence. See U.S.S.G. § lB1.3(a)(l); United States v. Coleman, 179 F.3d 1056, 1063 (7th Cir.1999).
Finally, we deny counsel’s request at argument that we hold this case in abeyance pending the Supreme Court’s consideration of United States v. Dillon, 572 F.3d 146 (3d Cir.), cert. granted — U.S. ---, 130 S.Ct. 797, — L.Ed.2d --- (2009). The question certified in Dillon was whether a sentencing court, after determining that a defendant may be resentenced under § 3582(c), has discretion to sentence below the amended guidelines range. But Nalls was not eligible for a reduction under § 3582(c) because he sold more than 4.5 kilograms of crack. See United States v. Forman, 553 F.3d 585, 590 (7th Cir.2009), and Dillon will not disturb this conclusion. Because Nalls would have no opportunity to seek a discretionary sentence below the amended guidelines range, Dillon will not affect this case.
Nalls’s uncontested PSR demonstrates that he was responsible for distributing well over 4.5 kilograms of crack cocaine, and he is thus ineligible for a reduced sentence under § 3582(c). The judgment of the district court is AFFIRMED.
. Nalls also attempts to undermine the PSR by suggesting that the statements from the cooperation agreement constitute protected information. See U.S.S.G. § IB 1.8. By asserting this claim in a footnote and failing to develop it, Nalls has waived it. See United States v. White, 879 F.2d 1509, 1513 (7th Cir.1989). Moreover, even if the argument had been properly developed, it would still be waived because Nalls declined to exercise his opportunity to challenge the PSR when he was originally sentenced.
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ORDER
Carrie Wheaton pleaded guilty to taking pornographic pictures of her twin five-year-old daughters. The district court sentenced Wheaton to the statutory maximum of 30 years in prison. Wheaton argues on appeal that the court failed to “meaningfully consider” evidence of her mental and psychological deficiencies or the goal of marginal deterrence. We affirm her sentence.
On at least two occasions in 2007 and 2008, Wheaton and her boyfriend, Roger Smith, took dozens of pornographic pictures of Wheaton’s twin five-year-old daughters at Wheaton’s parents’ home in Illinois.* Several of the pictures included Smith touching the girls with his penis or spreading their private areas with his hands. Before taking pictures, Wheaton gave cough syrup to the girls, who appeared to be asleep in all of the images. Smith took the camera’s memory cards to Wisconsin, where, with Wheaton’s consent, he emailed the pictures to others in his online chat group.
Wheaton pleaded guilty to one count of sexually exploiting the girls, 18 U.S.C. § 2251(a). Her base offense level was 32, U.S.S.G. § 2G2.1(a), with four additional levels for exploiting children under the age of 12, § 2G2.1(b)(l)(A), four levels for drugging the girls with cough syrup (conduct described in 18 U.S.C. § 2241(b)), § 2G2.1(b)(2)(B), two levels for sharing the images online, § 2G2.1 (b)(3), two levels for being the parent of the victims, § 2G2.1(b)(5), five levels for engaging in a pattern of prohibited conduct, § 4B1.5(b)(l), and a two-level adjustment for the combined offenses against both girls, § 3D1.4. After a three-level reduction for acceptance of responsibility, § 3E1.1, her total offense level was 48. With a criminal history category of I, Wheaton’s advisory guideline range was life in prison. The statutory maximum sentence for her offense, however, was 30 years in prison, 18 U.S.C. § 2251(e). Wheaton submitted a sentencing memorandum in which she requested a 20-year term of imprisonment. Among other arguments, she asserted that marginal deterrence demanded a sentence below the statutory maximum (so that worse offenders can receive a harsher punishment). She also attached an evaluation by Dr. Thomas Moran, a clinical psychologist, to support her request for a shorter sentence. Dr. Moran found that Wheaton had below-average cognitive functioning, but no actual disability, and that she was overly-trusting and easily manipulated by others.
At sentencing, Wheaton argued that intellectually she was very low functioning and Smith preyed on her vulnerability. The government responded that she was functional enough to graduate from community college, had abused the children before she met Smith, and participated in the offense for her own gratification. The *744district court found that Wheaton was weak-willed and lacked the self-discipline to keep herself from being a danger to the community. It agreed with the government that she committed the offense for reasons independent of Smith’s and noted life imprisonment was “a real possibility.” After acknowledging Wheaton’s own abuse as a child and her history of mental health problems, the court recounted the details of her offense. It concluded that Wheaton’s crime was “about as bad as it gets” and sentenced her to the statutory maximum of 30 years in prison and a lifetime term of supervised release.
Wheaton first argues that the district court imposed an unreasonable sentence by failing to “meaningfully consider” her timely guilty plea or the findings in Dr. Moran’s report. Specifically, she contends that her sentence does not account for her low mental functioning, her history of sexual abuse, and her low risk of re-offending, 18 U.S.C. § 3553(a)(1) — (2).
A district court need not comment on every argument a defendant raises, but if a sentencing court gives little or no attention to a defendant’s principal argument, we may lack confidence that the court adequately considered the relevant factors. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). On the other hand, “if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument,” then the court need not specifically comment. Id.
In this case, even though the court did not specifically refer to Dr. Moran’s report, it made clear its belief that the psychological issues did not outweigh the disturbing nature of Wheaton’s crime. First, the court acknowledged Wheaton’s weaknesses, stating that she was “not a strong person,” was “easily influenced [and] led astray,” and was “highly dependent on having a man in [her] life,” all factual conclusions from Dr. Moran’s report. The court, however, did not believe that those factors alone contributed to her behavior, or that they mitigated her crime. The court noted that she admitted to sexual contact with her daughters before the incident with Smith and that she did so for her own gratification. The court also discussed Wheaton’s experience of sexual abuse and her previous mental health problems, but noted that she was able to seek out help in the past. The court’s conclusion that there were “no mitigating factors” does not mean that it did not consider the evidence, only that did not afford it the weight that Wheaton had hoped.
In addition, Wheaton does not explain in her brief why she has a low risk of reoffending, and in fact Dr. Moran came to the opposite conclusion: “She is currently at-risk for further exploitation, given the fact that she has started up a written correspondence with a male prison inmate in Wisconsin.” And a timely plea is not a § 3553(a) factor; rather, Wheaton’s guilty plea was the basis for her three-level adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1.
Wheaton next argues that her sentence at the statutory maximum is unreasonable because it leaves no room for a higher penalty to deter worse offenders. She asserts that, under the theory of marginal deterrence, “the harshest sentence should be reserved for the most culpable behavior.” United States v. Newsom, 402 F.3d 780, 785-86 (7th Cir.2005). She does not address the district court’s rejection of her marginal deterrence argument: it found her crime “about as bad as it gets.”
Arguing by analogy to other cases, Wheaton urges that her sentence was far longer than sentences imposed on other *745defendants whose sexual exploitation crimes were worse than her own. Compare United States v. Schmeilski, 408 F.3d 917 (7th Cir.2005) (concurrent terms of 213 and 60 months in prison); United States v. Jordan, 435 F.3d 693 (7th Cir.2006) (a statutory maximum term of 240 months in prison); Newsom, 402 F.3d 780 (324 months in prison); United States v. Snyder, 189 F.3d 640 (7th Cir.1999) (168 months in prison). But the district court had discretion to disagree with other judges’ decisions about the relative weight of various sex crimes, especially in light of Wheaton’s applicable guideline range. Moreover, Wheaton’s crime was different from the crimes committed by the defendants in Schmeilski, Jordan, Newsom, and Snyder, and subject to different guideline enhancements, see U.S.S.G. § 2G2.1(b). Unlike Schmeilski, 408 F.3d at 918, and Jordan, 435 F.3d at 694, Wheaton’s victims were under 12 years old. Unlike those cases and Newsom, 402 F.3d at 781-82, Wheaton drugged the children. And unlike Jordan, 435 F.3d at 694, or Snyder, 189 F.3d at 643, and even unlike Smith, Wheaton was the parent of the victims. The district court focused specifically on her status as a parent when it rejected her marginal deterrence argument: “And when it involves your own children, it’s just impossible to understand how someone could have done that.” The court was within its authority to conclude that Wheaton’s crime warranted the maximum authorized sentence.
Finally, we note that were it not for the 30-year statutory maximum, Wheaton could have received an even longer sentence. See 18 U.S.C. § 2251(e). Her original guideline range was life imprisonment, a sentence that the district court considered “a real possibility.” Wheaton caught a break when she pleaded guilty to only one count, and the district court did not impose an unreasonable sentence.
AFFIRMED.
Wheaton finalized her divorce in September 2007 after starting a relationship with Smith. Her ex-husband had custody of the girls, and Wheaton had visitation with them every other weekend.
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ORDER
Derek Dixon, Jr., was charged with conspiracy to possess and distribute crack cocaine and two separate counts for individual sales of crack. See 21 U.S.C. §§ 841(a)(1) and 846. He pled guilty to the substantive counts, and the government dismissed the conspiracy count. The two sales totaled just 9.4 grams, but for purposes of the Sentencing Guidelines, the district court found that Dixon was responsible for more than 100 grams of crack and sentenced him to a total of 70 months in prison. On appeal Dixon argues that drug transactions other than those in the two counts of conviction should not have been included in the quantity calculation. We affirm.
The government initially charged Dixon for conspiring with Mervyn Butler to distribute crack in Mt. Vernon, Illinois, between January 2005 and March 2007. Dixon allegedly delivered crack to dealers on behalf of Butler, the ringleader. The government later added the two distribution counts based on sales that Dixon made to Craig Brantley in September 2006. As part of the investigation, the police had carried out a search of Dixon’s residence, which linked Dixon to larger-scale drug distribution and to Butler in particular. The officers found drug packaging material for both crack cocaine and marijuana, scales, and cooking equipment with residue that tested positive for cocaine, suitable for cooking powder cocaine into crack. The cocaine cooking equipment in Dixon’s kitchen had Butler’s fingerprint on it.
After Dixon pled guilty to the distribution counts, the probation officer prepared a presentence report recommending a drug quantity that included additional sales by Dixon to Brantley, as well as deliveries that Dixon had made to others on behalf of Butler. The probation officer’s recommendation was based on proffers from Brantley and five other dealers. Brantley told investigators that on at least seven other occasions “during the time frame of the charged offenses,” he purchased “eight balls” of crack from Dixon totaling 24.5 grams, but he did not explicitly link those transactions to Butler. The five other dealers, however, did make the connection between Dixon and Butler. Two of the five did not specify the quantity of crack they received from Dixon, but they did describe him as a close associate of Butler, and both told agents that Dixon was Butler’s “right hand man.” One of them detailed how Butler used Dixon’s *747residence to store drugs and cook powder cocaine into crack. On numerous occasions, the dealer added, either Butler or Dixon met him there when he went to pick up crack. The other three dealers who made proffers to the government were specific about the amounts of crack they received, and each of them said that drugs they ordered from Butler occasionally were delivered by Dixon until his arrest in late 2006. One of those dealers estimated that the deliveries Dixon had made to him alone on four occasions between June 2005 and March 2006 totaled more than 70 grams. In the presentence report, the probation officer also listed the drugs, paraphernalia, ammunition, and large amounts of hidden currency found during a search of Dixon’s residence.
The probation officer concluded that 137 grams of crack could be attributed to Dixon for his deliveries to Brantley and the three dealers who placed orders with Butler. Because the crack totaled between 50 and 150 grams, the probation officer proposed a base offense level of 30. See U.S.S.G. § 2D1.1. After applying a recommended three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, the probation officer determined that Dixon’s total offense level of 27 combined with his category I criminal history would yield a guidelines range of 70 to 87 months in prison.
Dixon objected to counting any crack beyond the 9.4 grams involved in the counts of conviction; the remaining transactions, he insisted, lacked sufficient similarity and temporal proximity to qualify as relevant conduct under U.S.S.G. § lB1.3(a)(2). In response, the government argued that the information in the presentence report evidenced a common scheme or plan because every crack distribution attributed to Dixon had occurred in the same town during the same time frame as the charged conspiracy. The government contended that this was sufficient to allow the district court to infer that Dixon’s drug activities were closely linked to Butler. The district court credited the dealers’ proffers, adopted the probation officer’s proposed factual findings and guidelines calculations, and agreed with the prosecutor’s assessment that Dixon’s distributions were connected by a common scheme or plan. The court then sentenced Dixon at the bottom of the guidelines range to 70 months in prison. This appeal followed.
On appeal Dixon concedes that all of the crack he delivered to Brantley — even the 24.5 grams in uncharged transactions — as properly included as relevant conduct. He maintains that his deliveries to other dealers should have been excluded because the transactions were too remote and too dissimilar to the charged deliveries. In the alternative, Dixon contends that the district court did not sufficiently explain its quantity finding so that, at a minimum, a remand is required for further explanation. We review the district court’s relevant conduct determination for clear error. United States v. Jones, 209 F.3d 991, 994-95 (7th Cir.2000).
Dixon argues first that his deliveries for Butler were not sufficiently similar or close enough in time to his September 2006 sales to Brantley to be considered relevant conduct. According to Dixon, Brantley never connected him to Butler, and his deals with Brantley involved smaller amounts taken from his “personal stash.” Drawing on the most-favorable estimates gleaned from the rough timeline provided by the dealers, Dixon argues that a sufficient temporal connection was also lacking. He points out that at least one of his deliveries of 14 grams could have occurred as early as 2003, and his other deliveries could have taken place up to a year before his offenses of conviction.
*748When a defendant is convicted of selling drugs, the sentencing court may count as relevant conduct other drug transactions that did not result in conviction if the government proves by a preponderance that the other transactions were part of the “same course of conduct” or “common scheme or plan.” See U.S.S.G. § lB1.3(a)(2); United States v. Acosta, 85 F.3d 275, 279 (7th Cir.1996). Transactions beyond the offense of conviction must be related by at least one commonality, such as accomplices, purpose, or modus operandi, U.S.S.G. § lB1.3(a)(2) cmt. n. 9, or a showing that there is sufficient “similarity, regularity, and temporal proximity.” Acosta, 85 F.3d at 281. Not every instance of drug-related activity qualifies as relevant conduct, United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir.2005), but minor differences in the defendant’s drug activities do not prevent the sentencing court from counting that conduct when calculating the drug quantity, e.g., United States v. Singleton, 548 F.3d 589, 592 (7th Cir.2008); United States v. White, 519 F.3d 342, 348-49 (7th Cir.2008).
Evidence that a period of several months passed between transactions may be enough to break the temporal link in cases where there is little else to connect the deals, see United States v. McGowan, 478 F.3d 800, 802-03 (7th Cir.2007); United States v. Bacallao, 149 F.3d 717, 721 (7th Cir.1998), but even a period of years is not dispositive when the drug transactions are significantly similar, see United States v. Delatorre, 406 F.3d 863, 866-67 (7th Cir.2005). This is particularly the case when the sentencing court finds that the offense of conviction was just the latest in a series of deals. See United States v. Stephenson, 557 F.3d 449, 457 (7th Cir.2009); United States v. Wilson, 502 F.3d 718, 723 (7th Cir.2007).
Here, the district court’s relevant conduct determination was not clearly erroneous. The district court correctly concluded that the proffers connected the counts of conviction to a larger ongoing drug-distribution operation that Butler and Dixon orchestrated in the Mt. Vernon area. Brantley did not need to connect Dixon to Butler specifically in his proffer, and there is no record evidence that Dixon’s sales to Brantley came from a “personal stash” separate from the large volume of business he did with Butler. Dixon’s drug activities all took place in the same city, involved the same drug, and followed a similar modus operandi. Dixon was operating from his residence, where Butler was also involved in cooking powder cocaine into crack. There was a sufficient basis for the district court to find that these commonalities connected Dixon’s two charged individual sales to his deliveries as part of a larger common scheme or plan.
We also are not persuaded by Dixon’s arguments that the temporal connection was not sufficient. The question of relevant time frame is complicated by the fact that the proffers provided only rough timeliness for the uncharged transactions. Based on the estimates most favorable to the government’s position, the other deliveries Dixon made for Butler could have taken place between 2005 and 2006. Even if the district court had included just the 70 grams Dixon delivered to one dealer on Butler’s behalf between June 2005 and March 2006, this amount added to the 33.9 grams he sold to Brantley put Dixon well within the final range of 50 to 150 grams that the district court used under U.S.S.G. § 2D1.1. The temporal link alone would not be enough to link the charged sales to the larger scheme, but there was much more in this case, as explained above. The district court did not err in finding that Dixon’s relevant conduct included distribution of more than 50 grams of crack cocaine.
*749The district court also provided an adequate explanation for its relevant conduct findings. The district court adopted the findings in Dixon’s presentence report, and the transcript from the sentencing hearing reflects the court’s agreement with the prosecutor that Dixon’s deliveries for Butler were part of a larger drug operation encompassing his sales to Brantley. The district judge was familiar with Butler, the other drug dealers’ operations, and the relationships among them after having presided over several related cases. The judge was entitled to draw on that knowledge in evaluating Dixon’s culpability and the other dealers’ proffers regarding Dixon. Nothing more was required to understand the basis for the quantity calculation. See Bacallao, 149 F.3d at 720. There is no need for a remand for further explanation.
Accordingly, we AFFIRM the judgment of the district court.
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PER CURIAM.
In this employment-discrimination case, Gail Bates appeals from the order of the District Court1 granting summary judgment to Morrison Management Specialists. We have carefully reviewed the record and considered Bates’s arguments and conclude that summary judgment was proper. See Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.2006) (standard of review). Accordingly, we affirm.
. The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas.
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MEMORANDUM*
Petitioners Nevada Service Employees Union, Local 1107 (the “Union”), and Valley Hospital Medical Center, Inc. (“Valley Hospital”) seek review of a final order of the respondent National Labor Relations Board (the “Board”), in which the Board found that Valley Hospital violated sections 8(a)(1) and (3) of the National Labor Relations Act (the “NLRA”) by discharging one of its employees, registered nurse and union steward Joan Wells, for criticizing Valley Hospital’s nurse workloads. The Hospital contends that Nurse Wells’s complaints were not protected by the *785NLRA, and the Union contends that the Board abused its discretion by refusing to order rescission of Valley Hospital’s Communication Policy or to order electronic dissemination of the notice of violation.
The Board cross-petitions for enforcement of its order.
This Court has jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f). We deny the petitions for review and grant the Board’s petition for enforcement.
I.
Nurse Wells was terminated by Valley Hospital because of three statements she made regarding problems with staffing levels at Valley Hospital. The parties do not dispute that the statements were related to an ongoing labor dispute.
An employee’s statements are protected under section 7 of the NLRA if they are related to an ongoing labor dispute and are not “so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” Emarco, Inc., 284 N.L.R.B. 832, 833 (1987); See 29 U.S.C. § 157. Under section 8 of the NLRA, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [section 7],” 29 U.S.C. § 158(a)(1), or discriminate in regard to any term or condition of employment to discourage membership in a union. 29 U.S.C. § 158(a)(3). This court upholds a Board decision “when substantial evidence supports its findings of fact and when the agency applies the law correctly.” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.2000).
Substantial evidence supports the Board’s determination that Wells’s statements regarding Valley Hospital staffing levels were not knowingly or recklessly false, given her reasonable reliance on her own observations, information from other nurses, and her reasonable inferences therefrom. Emano, Inc., 284 N.L.R.B. at 833-34. The Board also properly addressed whether Wells’s statements amounted to unprotected disloyalty, and substantial evidence supports its findings that they did not because: (1) there was an undisputed connection between her statements and the ongoing labor dispute; (2) her statements called for improved working conditions at Valley Hospital; (3) the statements were not strategically timed to harm Valley Hospital during a critical moment in its business; (4) Nurse Wells did not breach important confidences; and (5) there was no obvious intent to harm Valley Hospital. See NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471, 475-78, 74 S.Ct. 172, 98 L.Ed. 195 (1953); Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir.1989).
This case is distinguishable from cases relied upon by Valley Hospital. See Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C.Cir.2006) (denying enforcement where Board failed to address whether employee’s statements were “detrimentally disloyal”); St. Luke’s Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d 575, 579-80 (8th Cir.2001) (denying enforcement where Board failed to address whether employee “falsely and publicly disparagefd] her employer or its products and services”). Because substantial evidence supports the Board’s explicit findings that Wells’s statements were not disloyal, reckless or maliciously false, the Board properly concluded that Nurse Wells’s discharge violated the NLRA.
II.
This court reviews the Board’s choice of remedy for an abuse of discretion. Sever, 231 F.3d at 1165. The lawfulness of Valley Hospital’s Communications Policy was not fully litigated before the Administrative Law Judge or the Board, and therefore the Board did not abuse its discretion in refusing to order its rescis*786sion. See Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280 (1995). The Board also did not abuse its discretion in refusing to order Valley Hospital to individually email its employees notice of the NLRA violation, because the record does not speak to the customary nature of Valley Hospital’s email communication to its employees. See Nordstrom, Inc. & Unite Here, 347 N.L.R.B. 294, 294 (2006) (denying request for notice to be posted to employer’s intranet website in absence of evidence that employer customarily used the intranet to communicate with employees).
III.
For these reasons, we DENY Valley Hospital’s and the Union’s petitions for review and GRANT the Board’s petition for enforcement.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ovsanna Karapetyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence adverse credibility determinations, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny the petition for review.
Karapetyan’s testimony omitted the knife attack she suffered in March 1998, which she described in her asylum application, and her testimony was inconsistent with her declaration concerning the year of the attack following her radio broadcast. Substantial evidence supports the IJ’s adverse credibility determination because these discrepancies go to the heart of her claim. See Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004); see also Chebchoub, 257 F.3d at 1043 (9th Cir.2001).
Because Karapetyan failed to demonstrate eligibility for asylum, it follows that she did not satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Karapetyan’s CAT claim is based on the same testimony the IJ determined was not credible, and Karapetyan points to no other evidence the IJ should have considered, she failed to establish eligibility for CAT relief. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Cecilio Mejia Juarez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order denying his application for asylum, cancellation of re*839moval, and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Popa v. Holder, 571 F.3d 890, 894 (9th Cir.2009), and we dismiss in part and deny in part the petition for review.
We do not consider Mejia Juarez’s challenge to the IJ’s adverse credibility determination because the IJ’s alternative finding that Mejia Juarez did not establish past persecution or a well-founded fear of persecution on account of a protected ground is dispositive of Mejia Juarez’s asylum claim, and he did not challenge this finding before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (this court generally lacks jurisdiction to review contentions not exhausted).
We also do not consider Mejia Juarez’s contentions regarding the fairness of his hearing and continuous presence in the United States because he failed to raise his due process and cancellation of removal claims before the BIA. See id.
Meija Juarez’s contention that his notice to appear was defective because it did not specify the date and time of his removal hearing is foreclosed by Popa, 571 F.3d at 896 (NTA and hearing notice combined satisfied requirements of 8 U.S.C. § 1229(a)(l)(G)(i)).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In No. 06-74247, Barbara Hernandez Espinoza, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal, and denying her claim of ineffective assistance of counsel. In No. 07-70073, Hernandez Espinoza petitions for review of the BIA’s order denying her motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and claims of due process violations, including those due to ineffective assistance of counsel, and we review for abuse of discretion the denial of motions to reopen and reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We dismiss in part and deny in part the petition for review in No. 06-74247, and we deny the petition for review in No. 07-70073.
We lack jurisdiction to review the agency’s discretionary determination that Hernandez Espinoza failed to show exceptional and extremely unusual hardship to a qualifying relative. See Mar*844tinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Hernandez Espinoza’s contention that the agency legally erred and deprived her of due process by misapplying the law to the facts of her case does not state a colorable claim. See id. (“[T]raditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (“misapplication of case law” may not be reviewed). Contrary to Hernandez Espinoza’s contention, the agency provided a reasoned explanation of its decision denying her application for cancellation of removal. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). To the extent Hernandez Espinoza contends that the agency violated due process by failing to consider all of her evidence of hardship, the proceedings were not “so fundamentally unfair that [she] was prevented from reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (citation and internal quotation marks omitted).
We agree that Hernandez Espinoza failed to demonstrate that prior counsels’ representation resulted in prejudice, and thus her ineffective assistance of counsel claim fails. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (petitioner must demonstrate prejudice to prevail on an ineffective assistance of counsel claim).
The BIA did not abuse its discretion in denying Hernandez Espinoza’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s underlying July 31, 2006, order. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
We do not consider contentions Hernandez Espinoza seeks to introduce in her reply brief to the extent that they make a new “offer of proof’ as to hardship that was not before the agency. See Chouchkov v. INS, 220 F.3d 1077, 1080 (9th Cir.2000) (review limited to the administrative record).
Respondent’s motion to strike is denied as moot.
In No. 06-74247: PETITION FOR REVIEW DISMISSED in part; DENIED in part.
In No. 07-70073: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
Ray Anthony Pugh appeals from an order reducing his prison sentence under 18 U.S.C. § 3582(c)(2). Pugh wanted a bigger reduction, but the district court concluded that it was not authorized to go any lower. We affirm the court’s decision.
Pugh pleaded guilty in 2001 to possessing with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). With a total offense level of 36 and criminal history category of III, his guidelines imprisonment range was 235 to 292 months. The district court imposed a term of 235 months, and we affirmed the judgment on *719direct appeal, United States v. Pugh, 39 Fed.Appx. 392 (7th Cir.2002).
In 2008, Pugh moved under § 3582(c)(2) for a sentence reduction based on a retroactive amendment to U.S.S.G. § 2D1.1. That amendment, if applied to Pugh, would lower his base offense level by two levels and reduce his imprisonment range to 188 to 235 months. Pugh, who filed his motion pro se, asked the district court to reduce his sentence even below 188 months in light of other factors in 18 U.S.C. § 3553(a). The court appointed the public defender’s office to represent Pugh, and his new lawyer filed a separate motion under § 3582(c)(2) asking for a reduction to 188 months. Counsel filed an additional motion, however, asking the court to independently consider Pugh’s pro se motion.
The district court granted counsel’s motion and reduced Pugh’s term of imprisonment to 188 months. But the court denied Pugh’s pro se motion and explained that, in Pugh’s case, a sentence below the amended guidelines range was not authorized by § 3582(c)(2).
The sentencing guideline that implements § 3582(c)(2) does not permit a reduction below the amended imprisonment range unless the original term of imprisonment was itself below-range, and Pugh’s was not. See U.S.S.G. § 1B1.10(b)(2). Pugh argues, though, that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which rendered the sentencing guidelines advisory, should also be read to eliminate any restriction on the application of § 3582(c)(2). As he acknowledges, however, we held in United States v. Cunningham, 554 F.3d 703, 707-08 (7th Cir.2009), that Booker does not make § 3582(c)(2) or § lB1.10(b)(2) advisory. Pugh’s brief adds nothing new since our Cunningham decision.
AFFIRMED.
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ORDER
Laura Jennings sued her former employer Sallie Mae, Inc., under a variety of antidiscrimination statutes. After dismissing most of Jennings’s claims at screening, see 28 U.S.C. § 1915(e)(2)(B)(ii), the district court ultimately dismissed the suit based on her failure to participate in dis*721covery. Jennings appeals and we affirm the district court’s judgment.
Jennings worked as a loan consolidating servicing specialist at Sallie Mae from May 2006 to July 2007, when she was discharged for excessive absenteeism. In her complaint brought under Title VII, 42 U.S.C. § 2000e-2; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; the Rehabilitation Act, 29 U.S.C. § 701; and Section 1981, 42 U.S.C. § 1981, Jennings alleged that Sallie Mae harassed her and violated her civil rights by counting her approved sick leave as unplanned absences. The district court found that the complaint stated a viable claim only under the ADA and dismissed the other claims. See 28 U.S.C. § 1915(e)(2)(B)(ii). Jennings later amended her complaint to assert that Sallie Mae failed to make reasonable accommodations and punished her for her “rota-tor cuff tendonitis disability.”
During discovery, Jennings refused to respond to interrogatories, attend her scheduled deposition, or authorize Sallie Mae to obtain records related to her alleged disability. After Jennings disobeyed the district court’s directive to confirm that she would cooperate in the discovery process, the court granted Sallie Mae’s motion to dismiss under Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure and ordered Jennings to pay Sallie Mae $500. The court concluded that her actions were “unjustified, abusive of the discovery process, abusive of the defendant’s time and of other resources, a disregard of the court’s orders and procedures, and fully contrary to the spirit and letter of the Federal Rules of Civil Procedure.”
Jennings’s brief on appeal is difficult to parse, but she seems to argue, first, that the district court overstepped its authority by dismissing the non-ADA claims in her initial complaint and restricting the scope of her amended complaint. The court correctly dismissed Jennings’s non-ADA claims because her complaint failed to allege discrimination based on race, sex, national origin, religion, or age, as required to state a claim under Title VII, the ADEA, or Section 1981. See 42 U.S.C. § 2000e-2 (prohibiting discrimination based on “race, color, religion, sex, or national origin”); 29 U.S.C. § 621 (prohibiting age discrimination); Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996) (explaining that section 1981 prohibits racial discrimination). And Sallie Mae is a private employer, so the Rehabilitation Act was inapplicable. See Silk v. City of Chicago, 194 F.3d 788, 798 n. 6 (7th Cir.1999). Further, because the court properly dismissed Jennings’s non-ADA claims, it had discretion to prevent her from repleading them in her amended filing. See Crichton v. Golden Rule Ins. Co., 576 F.3d 392, 396 (7th Cir.2009).
Jennings next generally challenges the district court’s denial of her repeated requests for assistance in obtaining counsel. The district court, however, applied the correct legal standard—inquiring first whether Jennings had reasonably attempted to obtain an attorney and then determining the complexity of the case and her ability to present her claims—and based its decision that counsel was unnecessary on facts supported by the record. See Pruitt v. Mote, 503 F.3d 647, 654-55, 658 (7th Cir.2007) (en banc). As the court noted, Jennings is literate, has filed lawsuits in the past, has personal knowledge of the facts relevant to her claims, amended her complaint in accordance with the district court’s directions, and submitted documents in support of her claims.
Finally, Jenkins asserts that the district court erred by dismissing her case and imposing monetary sanctions based on her failure to participate in discovery. Be*722cause Jennings repeatedly failed to obey court orders to permit discovery and refused to appear for her scheduled deposition, the court did not abuse its discretion in dismissing her case. See Fed.R.CivP. 37(b)(2)(A)(v), (d)(l)(A)(i); 41(b). Nor did the court abuse its discretion by imposing monetary sanctions. The Federal Rules require sanctioning a party that has unjustifiably disobeyed a discovery order, Fed.R.Civ.P. 37(b)(2)(C), (d)(3), and the district court explained that the $500 was meant to cover a portion of the fees Sallie Mae incurred in filing and supplementing its motion to dismiss.
Accordingly, we AFFIRM the district court’s judgment.
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ORDER
Robert Gipson pleaded guilty to possession of crack cocaine with intent to distribute it, see 21 U.S.C. § 841(a)(1), and the district court imposed a within-guidelines sentence of 78 months’ imprisonment. On appeal Gipson argues that the district court failed to give adequate consideration to his mental condition as a mitigating factor under 18 U.S.C. § 3553(a). We affirm Gipson’s sentence.
In January 2008 a confidential informant tipped off law-enforcement agents that Gipson was selling crack in Madison, Wisconsin. According to the informant, Gipson traveled regularly to Chicago to buy the drug, which he repackaged for individual sale and stored in the basement of a Madison apartment building. Based on the tip, officers orchestrated two controlled purchases of crack from Gipson and arrested him shortly thereafter. Officers found marijuana and crack in the glove box of Gipson’s car and 108 individually wrapped packages of crack in his pocket. They later uncovered — hidden behind insulation in a basement wall of the Madison apartment building linked to Gipson— more crack and prerecorded currency from the controlled buys.
After determining that the offense conduct included 38.74 grams of crack, the probation officer calculated a base offense level of 28. See U.S.S.G. § 2Dl.l(c)(6). A three-level reduction for acceptance of responsibility and a criminal-history category of III produced a guidelines imprisonment range of 70 to 87 months.
At sentencing Gipson argued that the court should consider as mitigating factors his physical and mental impairments. Gip*733son had a brain tumor removed when he was 13, and he reported that he has suffered seizures once a week ever since. Gipson also has a history of mental illness. In 2004, during a court-ordered competency evaluation in a previous proceeding, the psychiatrist noted that Gipson demonstrated “delusional and paranoid” behavior and diagnosed him as a cocaine abuser with schizoaffective and bipolar disorders. Gipson initially was declared incompetent to stand trial in that case, but he improved with medication and later was found competent to continue with the proceedings. By that time, however, the government had dismissed the charge (possession with intent to distribute crack). When Gipson underwent a fresh competency evaluation in this case, he again was diagnosed with schizoaffective disorder and cocaine abuse, as well as borderline intellectual functioning. After he was prescribed medication, the psychiatrist determined that his schizoaffective disorder was “in remission with pharmacotherapy” and concluded that he was competent to face the proceedings.
Gipson argued at sentencing that his health conditions — schizoaffective and bipolar disorders, seizures, and low-level mental functioning — are a “limiting dynamic force that he is dealing with when he makes [the] judgment to be a drug dealer.” Gipson did not elaborate or present evidence to support his contention that these illnesses played a role in the commission of his crime. Rather, he argued generally that the court should take his impairments into account under 18 U.S.C. § 3553(a) and impose a below-guidelines sentence.
The district court declined. The court acknowledged that Gipson has “some problems, physical and mental” but noted that he nevertheless had “managed to cut a wide swath as a drug dealer.” After concluding that a sentence in the middle of the guidelines range was “reasonable and no greater than necessary” to hold Gipson accountable, protect the community, provide Gipson the opportunity for rehabilitative programs, and achieve parity with similarly situated offenders, the court sentenced him to 78 months’ imprisonment.
We review sentences for reasonableness, using an abuse-of-discretion standard. United States v. Deloney, 578 F.3d 690, 692 (7th Cir.2009). A sentence within the properly calculated guidelines range is presumed reasonable on appeal. United States v. Mendoza, 576 F.3d 711, 723 (7th Cir.2009). Nevertheless, we must be confident that the district judge gave individualized attention to the § 3553(a) factors and adequately considered the defendant’s nonfrivolous arguments for a below-guidelines sentence. See United States v. Williams, 553 F.3d 1073, 1084-85 (7th Cir.), cert denied, — U.S. ---, 129 S.Ct. 2452, 174 L.Ed.2d 242 (2009); United States v. Miranda, 505 F.3d 785, 792-93 (7th Cir.2007).
On appeal Gipson argues that the district court abused its discretion when it rejected his assertion that his medical/mental conditions warranted a below-guidelines sentence. Mental and physical impairments are not ordinarily relevant in determining whether a below-guidelines sentence is warranted. U.S.S.G. §§ 5H1.3, 5H1.4; see Miranda, 505 F.3d at 792 (explaining that concept of downward departure is obsolete post-Booker, but that departure guidelines may still be applied by way of analogy in analyzing § 3553(a) factors). An “extraordinary physical impairment,” however, may be a reason for a lower sentence, U.S.S.G. § 5H1.4; United States v. Poetz, 582 F.3d 835, 838 (7th Cir.2009), and so may a defendant’s significantly reduced mental capacity, if it contributed substantially to the commission of the offense, U.S.S.G. § 5K2.13; United States v. Jackson, 547 F.3d 786, 795 (7th *734Cir.2008), cert. denied, — U.S. ---, 129 S.Ct. 1538, 173 L.Ed.2d 666 (2009).
We have recognized severe mental illness, including schizoaffective disorder, as a ground for a sentencing discount because it may reduce the need for deterrence or punishment and thus render a long term of imprisonment less appropriate. See United States v. Anderson, 547 F.3d 831, 832 (7th Cir.2008); Miranda, 505 F.3d at 792-94. In Miranda, for example, we remanded for resentencing when the district court failed to address the defendant’s arguments for a below-guidelines sentence on the basis of diminished mental capacity despite evidence that the defendant’s schizophrenia and auditory hallucinations were the primary force driving him to commit the crime. Miranda, 505 F.3d at 787-89, 794. See also Williams, 553 F.3d at 1084-85 (remanding where district court failed to address defendant’s arguments that his reduced intellectual capacity made him more susceptible to manipulation by his brother, the ringleader of the criminal activity); United States v. Cunningham, 429 F.3d 673, 676-80 (7th Cir.2005) (remanding where district judge made no mention of diminished mental capacity as possible mitigating factor despite evidence that defendant’s long history of psychiatric illness and alcohol and marijuana abuse made him more prone to commit the crime). On the other hand, we have declined to remand on the basis of the district court’s terse rejection of a diminished-capacity sentencing argument when that argument was undeveloped or lacked a factual basis. See Jackson, 547 F.3d at 795-96.
In this case, Gipson presented no evidence that his impairments contributed substantially to the commission of the offense. He argued generally that his mental illness affects the “soundness of the judgment that leads him to criminal activity,” but did not explain why his medical condition made him more likely to sell drugs. Indeed, the doctor who performed Gipson’s most recent competency evaluation noted that his psychiatric history was “unremarkable” until 2003, yet his drug convictions date back as far as 1993. Moreover, Gipson did not raise any specific arguments that his mental illness reduced the need for deterrence or that incapacitation was unnecessary in light of the fact that his schizoaffective disorder was in remission with proper medication. See Miranda, 505 F.3d at 793.
Although the district judge could have said more, the record sufficiently confirms that the court gave meaningful consideration to Gipson’s arguments. The court acknowledged that Gipson suffered from physical and mental impairments but implicitly concluded that they had not played a role in the commission of the offense. In considering the § 3553(a) factors, the court noted that prior sanctions had not deterred Gipson from criminal activity, that he had demonstrated significant finesse as a drug dealer, and that the relevant conduct used to calculate his offense level likely was extremely conservative in light of a statement from his female companion that she had accompanied him on several hundred drug sales. Given Gipson’s vague argument for mitigation — which was unsupported by any evidence demonstrating the link between his mental illness and his drug dealing — the district court’s weighing of the § 3553(a) factors was not unreasonable.
Accordingly, we AFFIRM the judgment of the district court.
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ORDER
Eddie Nalls pleaded guilty to distributing crack cocaine, see 21 U.S.C. § 841(a). After the Sentencing Commission retroactively reduced the offense level for most crack offenses, Nalls asked the district court to reduce his prison sentence. See 18 U.S.C. § 3582(e). The court refused on the ground that Nalls had sold more than 4.5 kilograms of crack, and thus could not benefit from the amendments. Nalls appeals, arguing that the district court con*736ducted improper factfinding to determine how much crack he had sold. We affirm.
For approximately one year Nalls and several others sold crack for the Bronx Street Gang in Gary, Indiana. In conjunction with the government’s investigation of this activity, Nalls decided to cooperate by preparing a statement describing the operation and his involvement. Following Nails’s guilty plea, the probation officer incorporated this cooperation statement into Nails’s presentence investigation report. The PSR described the operation of three crack houses in Gary, Indiana; each house sold approximately 84, 28, and 672 ounces of crack per month, respectively. According to the PSR, Nalls functioned as an overseer at two of the houses and worked regular shifts at the third. Based on this information as well as Nails’s statements regarding the time he spent at each house, the probation officer calculated that “[a]t the very least [Nalls] distributed or helped to distribute 59.53 kilograms of crack cocaine.”
In April 2003 the court conducted Nails’s sentencing hearing. Nalls declined the opportunity to challenge the PSR, so the court adopted the factual findings and guidelines calculations it contained without any further discussion of the exact drug quantity attributable to Nalls. The court found that Nalls was responsible for selling more than 1.5 kilograms of crack cocaine, and thus he was subject to the highest base offense level under U.S.S.G. § 2D1.1. After an adjustment to account for cooperation with the government, see U.S.S.G. § 5K1.1, the court sentenced Nalls to 151 months’ imprisonment.
In November 2007 the Sentencing Commission modified U.S.S.G. § 2D1.1, reducing the base offense level for most crack offenses by two levels and made that change retroactive. See U.S.S.G. supp. to app. C, 226-31, 253 (2009) (Amendments 706 and 713). When Nalls was sentenced, offenses involving 1.5 kilograms or more of crack cocaine were assigned the highest possible base offense level of 38. Under the amended guidelines, however, only offenses involving 4.5 kilograms or more of crack were assigned an offense level of 38. See U.S.S.G. § 2Dl.l(c); United States v. Hall, 582 F.3d 816, 817 (7th Cir.2009).
Shortly after the amendment was enacted, Nalls asked the district court to reduce his sentence under 18 U.S.C. § 3582(c), which allows a defendant to seek a sentence reduction if the sentence was based on a guidelines range that has subsequently been lowered. See U.S.S.G. § lB1.10(a)(2)(B) (policy statement); United States v. Lawrence, 535 F.3d 631, 634 (7th Cir.2008). The court denied the motion, finding Nalls ineligible for a sentence reduction because he was responsible for selling more than 4.5 kilograms of crack and therefore subject to the same total offense level under the amended guidelines.
On appeal Nalls challenges the district court’s conclusion that he was responsible for distributing more than 4.5 kilograms of crack. He argues that at sentencing he was found to be responsible for the distribution of only 1.5 kilograms and that the court conducted impermissible factfinding to hold him responsible for more than 4.5 kilograms. Specifically, he faults the district court for relying on the cumulative drug quantities in the PSR, which trace back to the three houses where Nalls and other gang members collectively sold crack cocaine, but do not reflect the quantities Nalls individually sold.
Nalls is correct that a § 3582(c) motion may not be decided by relying on new factual findings that are inconsistent with those made at the original sentencing, see United States v. Woods, 581 F.3d 531, 538 (7th Cir.2009); see also United States v. Armstrong, 347 F.3d 905, 909 (11th Cir. *7372003); United States v. Adams, 104 F.3d 1028, 1030-31 (8th Cir.1997), but here the district court considered no such facts. Instead, the court relied on the factual findings in the very PSR that formed the basis for Nalls’s original sentence. These findings, to which there were no objections, adequately support a conclusion that Nalls was responsible for distributing more than 4.5 kilograms of crack cocaine. For more than a year, Nalls and other gang members ran three crack houses in Gary, Indiana, and through these operations, Nalls “distributed or helped to distribute 59.53 kilograms of crack cocaine.” Although the PSR did not specify how much of the 59.53 kilograms Nalls individually sold, the court did not abuse its discretion — given the substantial quantities described in the PSR and Nalls’s role as an overseer — in concluding that Nalls’s contribution far exceeded the 4.5 kilogram threshold. See Woods, 581 F.3d at 533, 539 (denying § 3582(c) motion after finding that defendants distributed more than 4.5 kilograms of crack cocaine even though PSR did not attribute specific quantities to each defendant).
Nalls’s attempt to undermine the PSR itself also falls short. He argues that, by describing drug quantities attributable to the three houses, the PSR does not hold him individually accountable for all the drug sales described in the PSR.1 But Nalls waived his right to challenge the factual bases for his sentence by failing to challenge them at sentencing and by pleading guilty. See, e.g., United States v. Staples, 202 F.3d 992, 995 (7th Cir.2000). In any event this argument is also factually erroneous: the PSR states that Nalls “distributed or helped to distribute ” crack in quantities far exceeding the 4.5 kilogram threshold. That he only “helped to distribute” some of these drugs does not make that conduct irrelevant to his sentence. See U.S.S.G. § lB1.3(a)(l); United States v. Coleman, 179 F.3d 1056, 1063 (7th Cir.1999).
Finally, we deny counsel’s request at argument that we hold this case in abeyance pending the Supreme Court’s consideration of United States v. Dillon, 572 F.3d 146 (3d Cir.), cert. granted — U.S. ---, 130 S.Ct. 797, — L.Ed.2d --- (2009). The question certified in Dillon was whether a sentencing court, after determining that a defendant may be resentenced under § 3582(c), has discretion to sentence below the amended guidelines range. But Nalls was not eligible for a reduction under § 3582(c) because he sold more than 4.5 kilograms of crack. See United States v. Forman, 553 F.3d 585, 590 (7th Cir.2009), and Dillon will not disturb this conclusion. Because Nalls would have no opportunity to seek a discretionary sentence below the amended guidelines range, Dillon will not affect this case.
Nalls’s uncontested PSR demonstrates that he was responsible for distributing well over 4.5 kilograms of crack cocaine, and he is thus ineligible for a reduced sentence under § 3582(c). The judgment of the district court is AFFIRMED.
. Nalls also attempts to undermine the PSR by suggesting that the statements from the cooperation agreement constitute protected information. See U.S.S.G. § IB 1.8. By asserting this claim in a footnote and failing to develop it, Nalls has waived it. See United States v. White, 879 F.2d 1509, 1513 (7th Cir.1989). Moreover, even if the argument had been properly developed, it would still be waived because Nalls declined to exercise his opportunity to challenge the PSR when he was originally sentenced.
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*739ORDER
Angela Luster applied for Supplemental Security Income benefits, claiming that since December 5, 2003, she has not been able to work because of depression, high blood pressure, Hepatitis C, a bone disease, and pain. An administrative law judge found that although Luster has a severe combination of impairments, her residual functional capacity allows for light work. Accordingly, the ALJ determined that Luster was not disabled. The district court upheld the ALJ’s determination. On appeal, Luster argues that the ALJ should have given controlling weight to her treating physician who opined that she could not work a full day. But because that opinion was based on Luster’s complaints of pain, the credibility of which the ALJ permissibly questioned, and not on objective clinical evidence, the ALJ need not have deferred to the opinion, and we therefore affirm.
BACKGROUND
Only two witnesses testified before the ALJ. Luster, who was 50 years old and not working at the time of her hearing, testified about her pain and its effect on her. She stated that every day she experiences pain all over her body, can walk only about half a block without getting short of breath, can sit continuously for about twenty to thirty minutes, can stand for about one-half hour, and can lift about ten pounds. She takes prescribed medication to combat the pain. The other witness to testify was a vocational expert. The expert stated that there were jobs that accommodate someone with Luster’s background (a GED and limited work history) and who had a residual functional capacity for low-stress and light or sedentary work.
The ALJ received written evaluations of Luster’s physical and mental abilities. Luster’s treating physician, M. Anjum Razzaq, M.D., completed three work-capacity evaluations. His conclusions were based on Luster’s complaints of her pain. Razzaq opined that Luster could continuously sit for about two hours, and could continuously stand for fifteen minutes, but that in an eight-hour day the total time that Luster could stand or sit was about two hours. In addition, Razzaq’s notations from Luster’s office visits indicate that her muscles had “mild to moderate tenderness.” The record also contains three mental evaluations by other professionals. Although Luster had some noted mental deficiencies, these evaluations concluded that she was capable of sustaining simple, low-stress, routine work. In addition to these evaluations, the record contains numerous other physician notes from Luster’s visits to Razzaq and other doctors.
The parties do not dispute that Luster’s other medical records document impairments for chest pain (secondary to anxiety), fibromyalgia, hypertension, Hepatitis C, and depression with anxiety. These records also describe clinical tests suggesting numerous other possible ailments as well, but either omit a definitive diagnosis or do not explain whether they impair Luster’s ability to work.1 In addition, the record contains Razzaq’s notes of possible conditions, but they do not cite any clinical tests that verify these possibilities.2
*740The ALJ conducted the five-step analysis required under 20 C.F.R. § 416.920(a). At step two the ALJ found a severe combination of impairments consisting of chest pain, fibromyalgia, hypertension, Hepatitis C, and depression with anxiety. But, after determining Luster’s residual functional capacity at step four, he found, at step five, that adequate employment was available even accounting for her limitations. In reaching this conclusion, the ALJ ruled that Razzaq’s opinion that Luster cannot work a full day should not be given controlling weight because it was based solely on Luster’s less than credible complaints and had no other clinical support. The district court affirmed these rulings.
ANALYSIS
This court will affirm the ALJ’s denial of disability benefits so long as the decision is not based on legal error and is supported by substantial evidence, meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.2009) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)); Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.2003). The ALJ must build an accurate and logical bridge between the evidence and his conclusions, and this court must confine its review to those reasons that the ALJ supplies for the decision. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008); Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.2002). If an ALJ’s decision contains inadequate evidentiary support or a cursory analysis of the issues, this court will reverse. Lopez, 336 F.3d at 539.
Luster principally argues that the ALJ erred because he did not give controlling weight to the opinion of her treating physician, Razzaq, that she could never work a full day. A treating physician’s opinion is entitled to controlling weight so long as it is supported by objective medical evidence and is consistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.2008); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir.2004). But an ALJ may reject a treating physician’s opinion in the absence of such objective evidence or if substantial evidence in the record contradicts the physician’s findings. 20 C.F.R. § 404.1527(d)(2); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.2003). When an ALJ discounts the opinion of the treating physician, the ALJ must articulate good reason for doing so. 20 C.F.R. § 404.1527(d)(2); see Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007). This court upholds all but the most patently erroneous reasons for discounting a treating physician’s assessment. See Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir.2001).
Here, the ALJ provided good reasons for discounting Razzaq’s conclusions. The ALJ explained that Razzaq never supported Luster’s claimed inability to work a full day with clinical findings or diagnostic tests; Razzaq merely recorded Luster’s complaints about her self-described limitations. In particular, upon his physical examinations of Luster, Razzaq did not find objective factors for the pain that Luster said prevented her from working. Razzaq found only “mild to moderate tenderness” of her muscles. Razzaq failed to reconcile the objective signs of moderate pain, and Luster’s management of her pain through medication, with his more extreme conclusion that Luster could not tolerate more than two hours of standing or two hours of sitting in an eight-hour period. This unexplained inconsistency supports the ALJ’s conclusion to discount Razzaq’s opinion on the ground that he merely repeated Lus*741ter’s self-reported symptoms without acknowledging the objective evidence to the contrary. See Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.2008).
In addition, the notes that Razzaq made referring to other possible conditions do not justify his conclusion that Luster could not work because they, too, lack clinical support. For example, his notes about “CVA” and “History of CVA” (presumably a reference to a cerebral stroke, Stedman’s Medical Dictionary 2330 (27th Ed.2000)), are devoid of any clinical foundation. In fact, as verified by Luster’s counsel at the hearing, Razzaq never diagnosed Luster with having had a stroke. And even after a CT scan revealed no sign of a cerebral stroke, Razzaq puzzlingly continued to note “CVA” in Luster’s records. The absence of clinical testing, coupled with contrary objective evidence, regarding Razzaq’s notations undermine their reliability.
Luster next argues that the ALJ erred in determining her residual functional capacity by ignoring evidence of her other ailments that did have clinical support, such as conditions footnoted above. But Luster did not meet her burden of proving the effect of these maladies on her ability to work. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000); 20 C.F.R. § 404.1512 (“you must furnish medical and other evidence that we can use to reach conclusions about your medical impairments) and, if material to the determination of whether you are blind or disabled, its effect on your ability to work”) (emphasis added). Nothing in the record explains how these ailments affect her capacity to work and hold a job. For instance, nowhere does Luster explain the effect of “mild to moderate diastolic dysfunction” such that the ALJ could build the “logical bridge” from the ailment to the conclusion that it precludes employment. See Jeralds v. Richardson, 445 F.2d 36, 38-39 (7th Cir.1971) (despite evidence showing existence of medical conditions, claim failed because “no showing was made ... that these conditions rendered Plaintiff disabled”).
Last, Luster argues that the ALJ impermissibly discounted the credibility of Luster’s subjective claims about her ongoing pain and inability to work. “We defer to an ALJ’s credibility determination and shall overturn it only if it is ‘patently wrong ” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.2006). Reviewing courts therefore should rarely disturb an ALJ’s credibility determination, unless that finding is unreasonable or unsupported. See Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir.2006). Getch, 539 F.3d at 483. This case is no exception. Luster believes that if the ALJ had accepted all of the medical evidence, he would have found her testimony credible. But, as noted above, the burden was on Luster to show that her claimed maladies precluded gainful activity. Clifford, 227 F.3d at 868; 20 C.F.R. § 404.1512. She did not do this, and as such the ALJ was not wrong in concluding that her claimed limitations were not supported by the evidence in her medical records.
CONCLUSION
For the foregoing reasons, the district court’s judgment upholding the decision of the ALJ is AFFIRMED.
. The other ailments include leiomyomas that protrude over the external uterine surface, ventricular hypertrophy and mild to moderate diastolic dysfunction, minor stenosis at the left renal artery, possible gout, a bone spur, possible small vessel disease, calcification in the aorta and other vessels, an aneurysm, small kidney cysts, pleural thickening, tendinitis, and possible ischemic disease.
. Razzaq's notes refer to "CVA,” "History of CVA,” "gastritis,” “menorrhagia,” "arthral*740gia,” "bilateral lower extremity pain,” and "hip pain.”
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ORDER
Carrie Wheaton pleaded guilty to taking pornographic pictures of her twin five-year-old daughters. The district court sentenced Wheaton to the statutory maximum of 30 years in prison. Wheaton argues on appeal that the court failed to “meaningfully consider” evidence of her mental and psychological deficiencies or the goal of marginal deterrence. We affirm her sentence.
On at least two occasions in 2007 and 2008, Wheaton and her boyfriend, Roger Smith, took dozens of pornographic pictures of Wheaton’s twin five-year-old daughters at Wheaton’s parents’ home in Illinois.* Several of the pictures included Smith touching the girls with his penis or spreading their private areas with his hands. Before taking pictures, Wheaton gave cough syrup to the girls, who appeared to be asleep in all of the images. Smith took the camera’s memory cards to Wisconsin, where, with Wheaton’s consent, he emailed the pictures to others in his online chat group.
Wheaton pleaded guilty to one count of sexually exploiting the girls, 18 U.S.C. § 2251(a). Her base offense level was 32, U.S.S.G. § 2G2.1(a), with four additional levels for exploiting children under the age of 12, § 2G2.1(b)(l)(A), four levels for drugging the girls with cough syrup (conduct described in 18 U.S.C. § 2241(b)), § 2G2.1(b)(2)(B), two levels for sharing the images online, § 2G2.1 (b)(3), two levels for being the parent of the victims, § 2G2.1(b)(5), five levels for engaging in a pattern of prohibited conduct, § 4B1.5(b)(l), and a two-level adjustment for the combined offenses against both girls, § 3D1.4. After a three-level reduction for acceptance of responsibility, § 3E1.1, her total offense level was 48. With a criminal history category of I, Wheaton’s advisory guideline range was life in prison. The statutory maximum sentence for her offense, however, was 30 years in prison, 18 U.S.C. § 2251(e). Wheaton submitted a sentencing memorandum in which she requested a 20-year term of imprisonment. Among other arguments, she asserted that marginal deterrence demanded a sentence below the statutory maximum (so that worse offenders can receive a harsher punishment). She also attached an evaluation by Dr. Thomas Moran, a clinical psychologist, to support her request for a shorter sentence. Dr. Moran found that Wheaton had below-average cognitive functioning, but no actual disability, and that she was overly-trusting and easily manipulated by others.
At sentencing, Wheaton argued that intellectually she was very low functioning and Smith preyed on her vulnerability. The government responded that she was functional enough to graduate from community college, had abused the children before she met Smith, and participated in the offense for her own gratification. The *744district court found that Wheaton was weak-willed and lacked the self-discipline to keep herself from being a danger to the community. It agreed with the government that she committed the offense for reasons independent of Smith’s and noted life imprisonment was “a real possibility.” After acknowledging Wheaton’s own abuse as a child and her history of mental health problems, the court recounted the details of her offense. It concluded that Wheaton’s crime was “about as bad as it gets” and sentenced her to the statutory maximum of 30 years in prison and a lifetime term of supervised release.
Wheaton first argues that the district court imposed an unreasonable sentence by failing to “meaningfully consider” her timely guilty plea or the findings in Dr. Moran’s report. Specifically, she contends that her sentence does not account for her low mental functioning, her history of sexual abuse, and her low risk of re-offending, 18 U.S.C. § 3553(a)(1) — (2).
A district court need not comment on every argument a defendant raises, but if a sentencing court gives little or no attention to a defendant’s principal argument, we may lack confidence that the court adequately considered the relevant factors. United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005). On the other hand, “if anyone acquainted with the facts would have known without being told why the judge had not accepted the argument,” then the court need not specifically comment. Id.
In this case, even though the court did not specifically refer to Dr. Moran’s report, it made clear its belief that the psychological issues did not outweigh the disturbing nature of Wheaton’s crime. First, the court acknowledged Wheaton’s weaknesses, stating that she was “not a strong person,” was “easily influenced [and] led astray,” and was “highly dependent on having a man in [her] life,” all factual conclusions from Dr. Moran’s report. The court, however, did not believe that those factors alone contributed to her behavior, or that they mitigated her crime. The court noted that she admitted to sexual contact with her daughters before the incident with Smith and that she did so for her own gratification. The court also discussed Wheaton’s experience of sexual abuse and her previous mental health problems, but noted that she was able to seek out help in the past. The court’s conclusion that there were “no mitigating factors” does not mean that it did not consider the evidence, only that did not afford it the weight that Wheaton had hoped.
In addition, Wheaton does not explain in her brief why she has a low risk of reoffending, and in fact Dr. Moran came to the opposite conclusion: “She is currently at-risk for further exploitation, given the fact that she has started up a written correspondence with a male prison inmate in Wisconsin.” And a timely plea is not a § 3553(a) factor; rather, Wheaton’s guilty plea was the basis for her three-level adjustment for acceptance of responsibility, U.S.S.G. § 3E1.1.
Wheaton next argues that her sentence at the statutory maximum is unreasonable because it leaves no room for a higher penalty to deter worse offenders. She asserts that, under the theory of marginal deterrence, “the harshest sentence should be reserved for the most culpable behavior.” United States v. Newsom, 402 F.3d 780, 785-86 (7th Cir.2005). She does not address the district court’s rejection of her marginal deterrence argument: it found her crime “about as bad as it gets.”
Arguing by analogy to other cases, Wheaton urges that her sentence was far longer than sentences imposed on other *745defendants whose sexual exploitation crimes were worse than her own. Compare United States v. Schmeilski, 408 F.3d 917 (7th Cir.2005) (concurrent terms of 213 and 60 months in prison); United States v. Jordan, 435 F.3d 693 (7th Cir.2006) (a statutory maximum term of 240 months in prison); Newsom, 402 F.3d 780 (324 months in prison); United States v. Snyder, 189 F.3d 640 (7th Cir.1999) (168 months in prison). But the district court had discretion to disagree with other judges’ decisions about the relative weight of various sex crimes, especially in light of Wheaton’s applicable guideline range. Moreover, Wheaton’s crime was different from the crimes committed by the defendants in Schmeilski, Jordan, Newsom, and Snyder, and subject to different guideline enhancements, see U.S.S.G. § 2G2.1(b). Unlike Schmeilski, 408 F.3d at 918, and Jordan, 435 F.3d at 694, Wheaton’s victims were under 12 years old. Unlike those cases and Newsom, 402 F.3d at 781-82, Wheaton drugged the children. And unlike Jordan, 435 F.3d at 694, or Snyder, 189 F.3d at 643, and even unlike Smith, Wheaton was the parent of the victims. The district court focused specifically on her status as a parent when it rejected her marginal deterrence argument: “And when it involves your own children, it’s just impossible to understand how someone could have done that.” The court was within its authority to conclude that Wheaton’s crime warranted the maximum authorized sentence.
Finally, we note that were it not for the 30-year statutory maximum, Wheaton could have received an even longer sentence. See 18 U.S.C. § 2251(e). Her original guideline range was life imprisonment, a sentence that the district court considered “a real possibility.” Wheaton caught a break when she pleaded guilty to only one count, and the district court did not impose an unreasonable sentence.
AFFIRMED.
Wheaton finalized her divorce in September 2007 after starting a relationship with Smith. Her ex-husband had custody of the girls, and Wheaton had visitation with them every other weekend.
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ORDER
Derek Dixon, Jr., was charged with conspiracy to possess and distribute crack cocaine and two separate counts for individual sales of crack. See 21 U.S.C. §§ 841(a)(1) and 846. He pled guilty to the substantive counts, and the government dismissed the conspiracy count. The two sales totaled just 9.4 grams, but for purposes of the Sentencing Guidelines, the district court found that Dixon was responsible for more than 100 grams of crack and sentenced him to a total of 70 months in prison. On appeal Dixon argues that drug transactions other than those in the two counts of conviction should not have been included in the quantity calculation. We affirm.
The government initially charged Dixon for conspiring with Mervyn Butler to distribute crack in Mt. Vernon, Illinois, between January 2005 and March 2007. Dixon allegedly delivered crack to dealers on behalf of Butler, the ringleader. The government later added the two distribution counts based on sales that Dixon made to Craig Brantley in September 2006. As part of the investigation, the police had carried out a search of Dixon’s residence, which linked Dixon to larger-scale drug distribution and to Butler in particular. The officers found drug packaging material for both crack cocaine and marijuana, scales, and cooking equipment with residue that tested positive for cocaine, suitable for cooking powder cocaine into crack. The cocaine cooking equipment in Dixon’s kitchen had Butler’s fingerprint on it.
After Dixon pled guilty to the distribution counts, the probation officer prepared a presentence report recommending a drug quantity that included additional sales by Dixon to Brantley, as well as deliveries that Dixon had made to others on behalf of Butler. The probation officer’s recommendation was based on proffers from Brantley and five other dealers. Brantley told investigators that on at least seven other occasions “during the time frame of the charged offenses,” he purchased “eight balls” of crack from Dixon totaling 24.5 grams, but he did not explicitly link those transactions to Butler. The five other dealers, however, did make the connection between Dixon and Butler. Two of the five did not specify the quantity of crack they received from Dixon, but they did describe him as a close associate of Butler, and both told agents that Dixon was Butler’s “right hand man.” One of them detailed how Butler used Dixon’s *747residence to store drugs and cook powder cocaine into crack. On numerous occasions, the dealer added, either Butler or Dixon met him there when he went to pick up crack. The other three dealers who made proffers to the government were specific about the amounts of crack they received, and each of them said that drugs they ordered from Butler occasionally were delivered by Dixon until his arrest in late 2006. One of those dealers estimated that the deliveries Dixon had made to him alone on four occasions between June 2005 and March 2006 totaled more than 70 grams. In the presentence report, the probation officer also listed the drugs, paraphernalia, ammunition, and large amounts of hidden currency found during a search of Dixon’s residence.
The probation officer concluded that 137 grams of crack could be attributed to Dixon for his deliveries to Brantley and the three dealers who placed orders with Butler. Because the crack totaled between 50 and 150 grams, the probation officer proposed a base offense level of 30. See U.S.S.G. § 2D1.1. After applying a recommended three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, the probation officer determined that Dixon’s total offense level of 27 combined with his category I criminal history would yield a guidelines range of 70 to 87 months in prison.
Dixon objected to counting any crack beyond the 9.4 grams involved in the counts of conviction; the remaining transactions, he insisted, lacked sufficient similarity and temporal proximity to qualify as relevant conduct under U.S.S.G. § lB1.3(a)(2). In response, the government argued that the information in the presentence report evidenced a common scheme or plan because every crack distribution attributed to Dixon had occurred in the same town during the same time frame as the charged conspiracy. The government contended that this was sufficient to allow the district court to infer that Dixon’s drug activities were closely linked to Butler. The district court credited the dealers’ proffers, adopted the probation officer’s proposed factual findings and guidelines calculations, and agreed with the prosecutor’s assessment that Dixon’s distributions were connected by a common scheme or plan. The court then sentenced Dixon at the bottom of the guidelines range to 70 months in prison. This appeal followed.
On appeal Dixon concedes that all of the crack he delivered to Brantley — even the 24.5 grams in uncharged transactions — as properly included as relevant conduct. He maintains that his deliveries to other dealers should have been excluded because the transactions were too remote and too dissimilar to the charged deliveries. In the alternative, Dixon contends that the district court did not sufficiently explain its quantity finding so that, at a minimum, a remand is required for further explanation. We review the district court’s relevant conduct determination for clear error. United States v. Jones, 209 F.3d 991, 994-95 (7th Cir.2000).
Dixon argues first that his deliveries for Butler were not sufficiently similar or close enough in time to his September 2006 sales to Brantley to be considered relevant conduct. According to Dixon, Brantley never connected him to Butler, and his deals with Brantley involved smaller amounts taken from his “personal stash.” Drawing on the most-favorable estimates gleaned from the rough timeline provided by the dealers, Dixon argues that a sufficient temporal connection was also lacking. He points out that at least one of his deliveries of 14 grams could have occurred as early as 2003, and his other deliveries could have taken place up to a year before his offenses of conviction.
*748When a defendant is convicted of selling drugs, the sentencing court may count as relevant conduct other drug transactions that did not result in conviction if the government proves by a preponderance that the other transactions were part of the “same course of conduct” or “common scheme or plan.” See U.S.S.G. § lB1.3(a)(2); United States v. Acosta, 85 F.3d 275, 279 (7th Cir.1996). Transactions beyond the offense of conviction must be related by at least one commonality, such as accomplices, purpose, or modus operandi, U.S.S.G. § lB1.3(a)(2) cmt. n. 9, or a showing that there is sufficient “similarity, regularity, and temporal proximity.” Acosta, 85 F.3d at 281. Not every instance of drug-related activity qualifies as relevant conduct, United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir.2005), but minor differences in the defendant’s drug activities do not prevent the sentencing court from counting that conduct when calculating the drug quantity, e.g., United States v. Singleton, 548 F.3d 589, 592 (7th Cir.2008); United States v. White, 519 F.3d 342, 348-49 (7th Cir.2008).
Evidence that a period of several months passed between transactions may be enough to break the temporal link in cases where there is little else to connect the deals, see United States v. McGowan, 478 F.3d 800, 802-03 (7th Cir.2007); United States v. Bacallao, 149 F.3d 717, 721 (7th Cir.1998), but even a period of years is not dispositive when the drug transactions are significantly similar, see United States v. Delatorre, 406 F.3d 863, 866-67 (7th Cir.2005). This is particularly the case when the sentencing court finds that the offense of conviction was just the latest in a series of deals. See United States v. Stephenson, 557 F.3d 449, 457 (7th Cir.2009); United States v. Wilson, 502 F.3d 718, 723 (7th Cir.2007).
Here, the district court’s relevant conduct determination was not clearly erroneous. The district court correctly concluded that the proffers connected the counts of conviction to a larger ongoing drug-distribution operation that Butler and Dixon orchestrated in the Mt. Vernon area. Brantley did not need to connect Dixon to Butler specifically in his proffer, and there is no record evidence that Dixon’s sales to Brantley came from a “personal stash” separate from the large volume of business he did with Butler. Dixon’s drug activities all took place in the same city, involved the same drug, and followed a similar modus operandi. Dixon was operating from his residence, where Butler was also involved in cooking powder cocaine into crack. There was a sufficient basis for the district court to find that these commonalities connected Dixon’s two charged individual sales to his deliveries as part of a larger common scheme or plan.
We also are not persuaded by Dixon’s arguments that the temporal connection was not sufficient. The question of relevant time frame is complicated by the fact that the proffers provided only rough timeliness for the uncharged transactions. Based on the estimates most favorable to the government’s position, the other deliveries Dixon made for Butler could have taken place between 2005 and 2006. Even if the district court had included just the 70 grams Dixon delivered to one dealer on Butler’s behalf between June 2005 and March 2006, this amount added to the 33.9 grams he sold to Brantley put Dixon well within the final range of 50 to 150 grams that the district court used under U.S.S.G. § 2D1.1. The temporal link alone would not be enough to link the charged sales to the larger scheme, but there was much more in this case, as explained above. The district court did not err in finding that Dixon’s relevant conduct included distribution of more than 50 grams of crack cocaine.
*749The district court also provided an adequate explanation for its relevant conduct findings. The district court adopted the findings in Dixon’s presentence report, and the transcript from the sentencing hearing reflects the court’s agreement with the prosecutor that Dixon’s deliveries for Butler were part of a larger drug operation encompassing his sales to Brantley. The district judge was familiar with Butler, the other drug dealers’ operations, and the relationships among them after having presided over several related cases. The judge was entitled to draw on that knowledge in evaluating Dixon’s culpability and the other dealers’ proffers regarding Dixon. Nothing more was required to understand the basis for the quantity calculation. See Bacallao, 149 F.3d at 720. There is no need for a remand for further explanation.
Accordingly, we AFFIRM the judgment of the district court.
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MEMORANDUM*
Petitioners Nevada Service Employees Union, Local 1107 (the “Union”), and Valley Hospital Medical Center, Inc. (“Valley Hospital”) seek review of a final order of the respondent National Labor Relations Board (the “Board”), in which the Board found that Valley Hospital violated sections 8(a)(1) and (3) of the National Labor Relations Act (the “NLRA”) by discharging one of its employees, registered nurse and union steward Joan Wells, for criticizing Valley Hospital’s nurse workloads. The Hospital contends that Nurse Wells’s complaints were not protected by the *785NLRA, and the Union contends that the Board abused its discretion by refusing to order rescission of Valley Hospital’s Communication Policy or to order electronic dissemination of the notice of violation.
The Board cross-petitions for enforcement of its order.
This Court has jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f). We deny the petitions for review and grant the Board’s petition for enforcement.
I.
Nurse Wells was terminated by Valley Hospital because of three statements she made regarding problems with staffing levels at Valley Hospital. The parties do not dispute that the statements were related to an ongoing labor dispute.
An employee’s statements are protected under section 7 of the NLRA if they are related to an ongoing labor dispute and are not “so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” Emarco, Inc., 284 N.L.R.B. 832, 833 (1987); See 29 U.S.C. § 157. Under section 8 of the NLRA, it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [section 7],” 29 U.S.C. § 158(a)(1), or discriminate in regard to any term or condition of employment to discourage membership in a union. 29 U.S.C. § 158(a)(3). This court upholds a Board decision “when substantial evidence supports its findings of fact and when the agency applies the law correctly.” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir.2000).
Substantial evidence supports the Board’s determination that Wells’s statements regarding Valley Hospital staffing levels were not knowingly or recklessly false, given her reasonable reliance on her own observations, information from other nurses, and her reasonable inferences therefrom. Emano, Inc., 284 N.L.R.B. at 833-34. The Board also properly addressed whether Wells’s statements amounted to unprotected disloyalty, and substantial evidence supports its findings that they did not because: (1) there was an undisputed connection between her statements and the ongoing labor dispute; (2) her statements called for improved working conditions at Valley Hospital; (3) the statements were not strategically timed to harm Valley Hospital during a critical moment in its business; (4) Nurse Wells did not breach important confidences; and (5) there was no obvious intent to harm Valley Hospital. See NLRB v. Local Union No. 1229, Int'l Bhd. of Elec. Workers (Jefferson Standard), 346 U.S. 464, 471, 475-78, 74 S.Ct. 172, 98 L.Ed. 195 (1953); Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir.1989).
This case is distinguishable from cases relied upon by Valley Hospital. See Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C.Cir.2006) (denying enforcement where Board failed to address whether employee’s statements were “detrimentally disloyal”); St. Luke’s Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d 575, 579-80 (8th Cir.2001) (denying enforcement where Board failed to address whether employee “falsely and publicly disparagefd] her employer or its products and services”). Because substantial evidence supports the Board’s explicit findings that Wells’s statements were not disloyal, reckless or maliciously false, the Board properly concluded that Nurse Wells’s discharge violated the NLRA.
II.
This court reviews the Board’s choice of remedy for an abuse of discretion. Sever, 231 F.3d at 1165. The lawfulness of Valley Hospital’s Communications Policy was not fully litigated before the Administrative Law Judge or the Board, and therefore the Board did not abuse its discretion in refusing to order its rescis*786sion. See Hi-Tech Cable Corp., 318 N.L.R.B. 280, 280 (1995). The Board also did not abuse its discretion in refusing to order Valley Hospital to individually email its employees notice of the NLRA violation, because the record does not speak to the customary nature of Valley Hospital’s email communication to its employees. See Nordstrom, Inc. & Unite Here, 347 N.L.R.B. 294, 294 (2006) (denying request for notice to be posted to employer’s intranet website in absence of evidence that employer customarily used the intranet to communicate with employees).
III.
For these reasons, we DENY Valley Hospital’s and the Union’s petitions for review and GRANT the Board’s petition for enforcement.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Cecilio Mejia Juarez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) order denying his application for asylum, cancellation of re*839moval, and voluntary departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Popa v. Holder, 571 F.3d 890, 894 (9th Cir.2009), and we dismiss in part and deny in part the petition for review.
We do not consider Mejia Juarez’s challenge to the IJ’s adverse credibility determination because the IJ’s alternative finding that Mejia Juarez did not establish past persecution or a well-founded fear of persecution on account of a protected ground is dispositive of Mejia Juarez’s asylum claim, and he did not challenge this finding before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (this court generally lacks jurisdiction to review contentions not exhausted).
We also do not consider Mejia Juarez’s contentions regarding the fairness of his hearing and continuous presence in the United States because he failed to raise his due process and cancellation of removal claims before the BIA. See id.
Meija Juarez’s contention that his notice to appear was defective because it did not specify the date and time of his removal hearing is foreclosed by Popa, 571 F.3d at 896 (NTA and hearing notice combined satisfied requirements of 8 U.S.C. § 1229(a)(l)(G)(i)).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In No. 06-74247, Barbara Hernandez Espinoza, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for cancellation of removal, and denying her claim of ineffective assistance of counsel. In No. 07-70073, Hernandez Espinoza petitions for review of the BIA’s order denying her motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and claims of due process violations, including those due to ineffective assistance of counsel, and we review for abuse of discretion the denial of motions to reopen and reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We dismiss in part and deny in part the petition for review in No. 06-74247, and we deny the petition for review in No. 07-70073.
We lack jurisdiction to review the agency’s discretionary determination that Hernandez Espinoza failed to show exceptional and extremely unusual hardship to a qualifying relative. See Mar*844tinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Hernandez Espinoza’s contention that the agency legally erred and deprived her of due process by misapplying the law to the facts of her case does not state a colorable claim. See id. (“[T]raditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th Cir.2001) (“misapplication of case law” may not be reviewed). Contrary to Hernandez Espinoza’s contention, the agency provided a reasoned explanation of its decision denying her application for cancellation of removal. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). To the extent Hernandez Espinoza contends that the agency violated due process by failing to consider all of her evidence of hardship, the proceedings were not “so fundamentally unfair that [she] was prevented from reasonably presenting [her] case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (citation and internal quotation marks omitted).
We agree that Hernandez Espinoza failed to demonstrate that prior counsels’ representation resulted in prejudice, and thus her ineffective assistance of counsel claim fails. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (petitioner must demonstrate prejudice to prevail on an ineffective assistance of counsel claim).
The BIA did not abuse its discretion in denying Hernandez Espinoza’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s underlying July 31, 2006, order. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
We do not consider contentions Hernandez Espinoza seeks to introduce in her reply brief to the extent that they make a new “offer of proof’ as to hardship that was not before the agency. See Chouchkov v. INS, 220 F.3d 1077, 1080 (9th Cir.2000) (review limited to the administrative record).
Respondent’s motion to strike is denied as moot.
In No. 06-74247: PETITION FOR REVIEW DISMISSED in part; DENIED in part.
In No. 07-70073: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8476328/
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MEMORANDUM **
*917Arturo Meza-Beltran appeals from his guilty-plea conviction and 70-month sentence for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(l)(A)(ii).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Meza-Beltran’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 the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8476316/
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MEMORANDUM **
Victor Hugo Rivas-Barrios, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir.2008), and we review de novo due process claims, Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
The record does not compel the conclusion that Rivas-Barrios established changed or extraordinary circumstances to excuse his late filed asylum application. See 8 C.F.R. § 1208.4(a)(4), (5). Accordingly, Rivas-Barrios’s asylum claim fails.
*846Rivas-Barrios’ testimony that he was attacked on account of his religion was inconsistent with his declaration and the police report which did not mention a religious motivation and instead indicated the attack occurred in response to Rivas-Barrios’ previous confrontation with his attackers regarding an incident of sexual abuse against his son. Because this incident is central to his claim, substantial evidence supports the IJ’s adverse credibility determination. See Goel v. Gonzales, 490 F.3d 735, 739 (9th Cir.2007). In the absence of credible testimony establishing persecution on account of a protected ground, Rivas-Barrios’ withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Rivas-Barrios’ CAT claim is based on the testimony the IJ found not credible, and Rivas-Barrios points to no other evidence to show it is more likely than not he would be tortured if returned to Mexico, his CAT claim fails. See id. at 1156-57.
Rivas-Barrios’ due process contention regarding the IJ’s refusal to permit his witness to testify fails. See Ngongo, 397 F.3d at 823-24.
We lack jurisdiction to review the IJ’s grant of voluntary departure, see 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i), and therefore we dismiss the petition as to Rivas-Barrios’ voluntary departure request.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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