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MEMORANDUM **
Josué Vasquez-Pena, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying motion to reopen and dismissing his appeal from an immigration judge’s (“IJ”) decision ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of motion to reopen, Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002), and we review de novo claims of constitutional violations in immigration proceedings, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s discretionary determination that Vasquez-Pena failed to show exceptional and extremely unusual hardship. See Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003).
The evidence Vasquez-Pena presented with his motion concerned the same basic hardship grounds as were previously considered by the agency. See Fernandez v. Gonzales, 439 F.3d 592, 602-03 (9th Cir.2006). We therefore lack jurisdiction to review the BIA’s discretionary determination that reopening/remand is not warranted based on the evidence he submitted. See id. at 600.
Vasquez-Pena’s contention that the IJ erred by refusing to hear new evidence on remand is unavailing. The BIA’s remand to the IJ was specifically limited to the entry of an order of removal and to consideration of voluntary departure; the BIA retained jurisdiction over other matters. See Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978).
*881Vasquez-Pena’s contention that the BIA erred in declining to take administrative notice of a country condition report is not persuasive. Moreover, Vasquez-Pena failed to demonstrate that the consideration of new evidence upon remand would have affected the outcome of the proceedings. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (requiring prejudice to prevail on a due process challenge).
We lack jurisdiction to review the IJ’s decision not to invoke his sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
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 **
*916Leibis Doraba Carpio-Reyes, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her motion to reopen her deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, including claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). We deny the petition for review.
Carpio-Reyes does not dispute that the Order to Show Cause was personally served on her, and she concedes she failed to provide the immigration court with an address where she could be contacted. See 8 C.F.R. § 3.15(c) (1994). The IJ, therefore, properly ordered her deported in absentia when she failed to appear at the immigration hearing, and the agency acted within its discretion in denying Carpio-Reyes’ motion to reopen to rescind her deportation order. See 8 U.S.C. § 1252b(c)(2)-(3) (1994); Sequeiror-Solano v. INS, 104 F.3d 278, 279 (9th Cir.1997). Contrary to Carpio-Reyes’ contention, the agency considered her claim of non-receipt.
Carpio-Reyes’ contention that the BIA violated due process by failing to provide her with a transcript of proceedings fails because she did not demonstrate prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring prejudice for a petitioner to prevail on a due process claim).
Carpio-Reyes has waived any challenge to the agency’s denial of her motion to reopen under the Nicaraguan Adjustment and Central American Relief Act. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
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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OPINION
PER CURIAM.
Ronald W. Telepo, Jr., a state prisoner, appeals an order of the United States District Court for the Middle District of Pennsylvania granting the defendants’ motion to dismiss a complaint filed pursuant to 42 U.S.C. § 1983. We will affirm.
On April 14, 2008, and May 12, 2008, Telepo appeared in the Monroe County Courthouse for hearings related to his criminal sentence. In his complaint, Tele-po alleged that the defendants, the Monroe County Sheriff and three County Commissioners, failed to provide him with “adequate consultation facilities within the ... County Courthouse.” As a result, he was “forced to meet with [his] attorney in the presence of sheriffsf] deputies as well as other inmates within a holding cell area.” Because he was not “able to speak privately with his public defender,” Telepo claimed that “the public defender was ill prepared to argue the issues ... concerning] ... my prior record score[,] which subsequently led to the judge sentencing me to a longer period of incarceration than I should have been sentenced to.” Telepo later asserted that “[i]f I was given a more proper area to confer with my Public Defender, (which is challenging the conditions of my confinement), I would have been able to relay information pertinent to a shorter term of incarceration (challenging my sentence and conviction).” As relief, Telepo sought a declaration that the defendants violated his right of access to the courts, an injunction ordering the defendants to provide “an area [in the Courthouse] that permits ... unobstructed and confidential communication [between inmates and] the attorneys assigned to them,” and compensatory and punitive damages.
The defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge recommended that the motion be granted and that the compliant be dismissed with prejudice. Over Telepo’s objections, the District Court adopted the Magistrate Judge’s *280Report and granted the defendants’ motion to dismiss. The District Court held that Telepo failed to allege that the defendants’ conduct caused an “actual injury,” that his claims against the County Commissioners were barred by the doctrine of respondeat superior, that the defendants were entitled to qualified immunity, and that Telepo lacked standing to seek equitable or injunctive relief. Telepo appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s grant of the Defendants’ motion to dismiss. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We may affirm on any basis supported by the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985).
After considering the record below, we conclude that Telepo’s claims are not cognizable in a § 1983 action. Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Court extended Heck and found a claim for declaratory relief not cognizable under § 1983 because it would “necessarily imply the invalidity of the punishment imposed.” Id. at 648, 117 S.Ct. 1584. Heck and Balisok foreclose § 1983 claims only in a “narrow subset of actions,” where the deprivation of rights is such that it necessarily affects the fact or length of detention. Learner v. Fauver, 288 F.3d 532, 540 (3d Cir.2002). “[W]hen-ever the challenge ultimately attacks the ‘core of habeas’ — the validity of the continued conviction or the fact or length of the sentence — a challenge, however denominated and regardless of the relief sought, must be brought by way of habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiffs favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate.” Id. at 542.
Telepo initially couched his claims in terms of his First Amendment right of “access to the courts.” As the District Court noted, the right to access the courts has typically been applied to “attempts by inmates to pursue direct appeals from the convictions for which they were incarcerated, ... habeas petitions, ... or ‘civil rights actions,’ ie., actions under 42 U.S.C. § 1983 to vindicate ‘basic constitutional rights.’ ” Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal citations omitted). But Telepo did not claim that he was denied “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Id. at 351,116 S.Ct. 2174. Rather, his claims are based on alleged violations of his Sixth Amendment right to assistance of counsel during the sentencing phase of his criminal trial. See United States v. Henry, 447 U.S. 264, 295, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (“the Sixth Amendment, of course, protects the confidentiality of communications between the accused and his attorney.” (Rehnquist, J., dissenting)); United States v. Johnson, 534 F.3d 690, 693 (7th Cir.2008) (‘“[T]he Sixth Amendment guarantees the right to counsel at all critical stages of the prosecution,’ and this right is applicable during sentencing hearings.” (internal citations omitted)). Telepo’s claim, if successful, would “spell speedier release,” and therefore “lies at the core of habeas corpus.” Wilkinson v. Dotson, 544 *281U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 258 (2005) (internal quotation and citation omitted); cf. Perry v. Leeke, 488 U.S. 272, 278-80, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (addressing habeas claim that state trial court’s order directing petitioner not to consult his attorney during 15-minute recess violated petitioner’s Sixth Amendment right to assistance of counsel).
For the foregoing reasons, this appeal presents no substantial question. See I.O.P. 10.6. Accordingly, we will summarily affirm.1
. We deny Telepo's Motion for Appointment of Counsel and his Motion for Leave to File a Reply to the Appellees' Response to the Motion for Appointment of Counsel.
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OPINION
PER CURIAM.
Appellant Ronald Clifford Snee, Jr., appeals an order entered on August 27, 2009, by the United States District Court for the Western District of Pennsylvania, denying his motion for a preliminary injunction. We conclude that the appeal does not present a substantial question and will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Because we write solely for the benefit of the parties, we will limit our discussion to those facts relevant to our decision.
Snee is a prisoner confined at the State Correctional Institution at Forest, Pennsylvania. In June 2009, Snee filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, challenging the legality of his custody.1 Among other things, Snee claims to be in possession of a *283certified order directing his immediate release from prison.
During the proceedings, Snee moved the District Court for a temporary restraining order (“TRO”) or preliminary injunction, claiming that the Pennsylvania Department of Corrections (“DOC”) wrongfully confiscated certain legal documents from his cell. Snee argued that he could not proceed with his habeas corpus petition without the confiscated materials and thus faced irreparable harm. He also argued that the public interest favors access to the courts and that he ultimately has a strong likelihood of success on the merits of his habeas corpus petition.
Because the District Court had referred the habeas corpus petition to a Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), the Magistrate Judge held a telephone hearing concerning, among other things, Snee’s motion for a TRO or preliminary injunction. During the hearing, the Commonwealth argued that the materials were related to the Uniform Commercial Code (“UCC”) and that prison officials confiscated them pursuant to written DOC policy prohibiting inmate possession of UCC-related materials.2 See DC-ADM 803, 815. In response, Snee did not dispute the DOC’s classification of the materials as UCC-related contraband. Instead, he argued that DOC policy can never supersede an individual’s constitutional right of access to the court system.
The Magistrate Judge concluded that Snee had been able to adequately access the courts in the absence of the confiscated material. She observed that Snee had already filed his habeas corpus petition and that no further briefing was necessary. The Magistrate Judge determined that she would not interfere with the prison’s security decision concerning the disputed materials. She therefore denied Snee’s motion.3
Snee appealed the Magistrate Judge’s decision to the District Court. See 28 U.S.C. § 636(b)(1)(A). The Commonwealth responded by arguing, as it had in the hearing before the Magistrate Judge, that the materials were properly confiscated as contraband pursuant to written DOC policy prohibiting UCC-related material. In particular, the Commonwealth argued that the materials relate to the so-called “Redemption” theory, through which some prisoners attempt to obtain fraudulent UCC liens against prison officials in order to extort their release from prison. See Monroe v. Beard, 536 F.3d 198, 203 n. 4 (3d Cir.2008) (describing the “Redemption” theory). On August 27, 2009, the District Court issued an order concluding that the Magistrate Judge’s ruling was not clearly erroneous or contrary to law. Accordingly, the District Court denied relief.
Snee filed a timely pro se notice of appeal from the District Court’s order. On September 18, 2009, the Clerk informed the parties that this matter would be considered for possible summary action pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6 and invited the parties to submit written argument. Snee filed a response that opposes summary action and also moves this Court to issue a TRO or injunctive relief.
*284II.
We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C. § 1292(a)(1).4 We “review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). The scope of our review is limited and the burden on the party seeking reversal is high. Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
A preliminary injunction is an “extraordinary remedy.” Kos, 369 F.3d at 708. In order to obtain a preliminary injunction, Snee was required to establish four elements: a likelihood of success on the merits, irreparable injury, a favorable balance of the hardships, and consistency with the public interest. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir.1990). Failure to establish any element renders a preliminary injunction inappropriate. Nutrasweet, 176 F.3d at 153. In this case, Snee did not establish the necessary elements for issuance of a preliminary injunction. Accordingly, he has failed to establish that the District Court abused its discretion in denying his motion.
Snee primarily argues that the DOC’s confiscation of his UCC-related legal materials violated his constitutional right of unimpeded access to the court system. Contrary to Snee’s position, we have held that prisoners do not have an unrestricted constitutional right of access to legal materials. See Monroe v. Beard, 536 F.3d 198, 207-10 (3d Cir.2008). In Monroe, we concluded that a DOC policy permitting confiscation of prisoners’ UCC-related materials was not constitutionally unreasonable, particularly in light of “the DOC’s interest in protecting government officials from fraudulent liens.” Monroe, 536 F.3d at 208. Snee has offered nothing to convince us that our holding in Monroe should not apply to his claim. He therefore has not established a likelihood of success on the merits.5 He also has not established that he suffered an irreparable injury due to the prison’s alleged infringement of his constitutional rights. See id. at 208-09.
We also conclude that Snee has not established that the public interest or the balance of the hardships weigh in his favor. While Snee has argued on appeal that he requires the confiscated documents in order to present his habeas corpus petition, we see no error in the Magistrate Judge’s conclusion, affirmed by the District Court, that Snee has already ade*285quately accessed the court system and has presented his habeas corpus petition. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (to establish an unconstitutional denial of access to the courts, a prisoner must show, inter alia, a lost opportunity to pursue a nonfrivolous claim). Our review of the record reflects that, thus far, Snee has been able to adequately articulate his ha-beas corpus claims in the absence of the confiscated documents. In addition, Snee offers nothing to establish that his claim to the UCC-related materials outweighs the DOC’s legitimate security interest in protecting its officials from fraudulent UCC liens. See Monroe, 536 F.3d at 208.
Finally, Snee argues that the District Court acted arbitrarily by failing to rule upon his preliminary injunction motion in an expeditious manner. The record reflects that Snee first sought a preliminary injunction in June 2009, the Magistrate Judge held a hearing and issued a ruling in July 2009, and the District Court disposed of Snee’s appeal from the Magistrate Judge’s decision in August 2009. We conclude that Snee’s claim of unreasonable delay lacks any factual basis.
III.
We find no abuse of discretion in the District Court’s decision not to issue a preliminary injunction. Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order. Snee’s motion for a TRO or preliminary injunction is denied.
. There is a dispute over whether Snee filed his habeas corpus petition pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241.
. DOC policy also sets forth grievance procedures through which the prisoner is permitted to oppose the confiscation and explain any legitimate basis for possessing UCC-related materials. See DC-ADM 803.
. Although the docket entry does not set forth the Magistrate Judge's disposition of Snee’s TRO/preliminary injunction motion, see Docket entry for July 30, 2009, it is clear that the Magistrate Judge denied the motion at that time. See, e.g., Docket No. 16 at 11-12 (hearing transcript).
. An immediate appeal may not normally be taken from an order granting or denying a temporary restraining order. See Nutrasweet Co. v. Vit-Mar Enterprises, Inc., 112 F.3d 689, 692 (3d Cir.1997). At times, it is difficult to distinguish which form of relief has been invoked. See id. However, temporary restraining orders are of extremely short duration and typically issue without notice to the opposing party. See Fed.R.Civ.P. 65(b). In this case, although Snee purported to request both forms of relief, he raised the issue by formal motion with notice to the Commonwealth. Accordingly, we view the motion as requesting a preliminary injunction.
. Snee has not disputed the DOC’s classification of the confiscated materials as UCC-related contraband, although he argues that the materials do not pertain to fraudulent UCC liens. Snee states that "[t]he use of the UCC in the documents was scholarly legal analysis of the Inhabitant’s fundamental rights challenging his fraudulent conviction.” We note that the record does not reflect whether Snee exhausted his administrative remedies by challenging the confiscation of the UCC-related materials through the prison’s grievance process.
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OPINION
PER CURIAM.
Marvin Cobb, a former federal prisoner proceeding pro se, appeals from the District Court order granting the Defendant’s motion for summary judgment. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6.
I
In 2007, while an inmate at FCI-Lor-etto, Cobb filed in the District Court a Bivens action1 against Weyandt, a work supervisor at the institution. Cobb, a disabled veteran, worked at the prison powerhouse beginning in 2005. Cobb alleged that Weyandt, his supervisor, discriminated against him in hiring and assignment decisions based on Cobb’s disability and status as a veteran. In his complaint, Cobb raised claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Vietnam Veterans’ Readjustment Assistance Act, and sought compensatory and punitive damages.
Cobb was released in June 2008, while his action was pending in the District Court. The defendant later filed a combined motion to dismiss and motion for summary judgment, arguing that Cobb failed to exhaust his available administrative remedies. In support of the motion, the defendant submitted an affidavit from a BOP paralegal who attested to Cobb’s failure to pursue the administrative remedy system. The District Court granted summary judgment for the defendant, and Cobb filed a timely notice of appeal.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing a district court’s grant of summary judgment, we exercise plenary review, viewing the facts in the light most favorable to the non-moving party. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir.2008). We apply the same standard that governs in district court proceedings, under which “a party is entitled to summary judgment only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)).
Under the PLRA, no prisoner may file a civil action regarding the conditions of his *287confinement under any federal law “until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory, and prisoners must exhaust all “available” remedies, even when the specific relief sought cannot be granted as a result of the administrative process. Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Failure to employ the system of administrative remedies procedurally defaults any federal claim. See Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir.2004). In determining whether the exhaustion requirement applies, courts look to whether plaintiff was a prisoner at the time of filing. See § 1997e(a); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir.2004); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir.2001) (en banc).
In granting the summary judgment motion, the District Court reasoned that Cobb’s complaint was barred because he had not exhausted available administrative remedies. Cobb did not dispute this fact, and in fact conceded it in his objections to the Magistrate Judge’s report and recommendation. Cobb argued that administrative exhaustion was unnecessary for claims raised under the ADA — an argument the District Court properly rejected. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060-61 (9th Cir.2007) (holding that the PLRA requires exhaustion of administrative remedies before an action may be brought under any federal law, including the ADA and Rehabilitation Act). Because it is clear that Cobb’s complaint, filed during his incarceration, related to the conditions of his confinement and that he failed to exhaust available administrative remedies, we agree that the defendant was entitled to summary judgment.2
Accordingly, we will affirm the decision of the District Court.
. See Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. We also note that although Cobb was released in June 2008, he initiated proceedings in the District Court in April 2007, and his complaint alleged that some of the defendant’s allegedly discriminatory conduct occurred as early as 2005. Thus, he had ample time to pursue and exhaust any available administrative remedies.
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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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MEMORANDUM **
In No. 06-74012, Audencio Edgar Roblero, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his applications for asylum, •withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal. In No. 08-72710, Roblero petitions for review of the BIA’s order denying his motion to reopen based on ineffective assistance of counsel. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petitions for review.
Assuming Roblero’s evidence to be credible, the agency determined that Roblero failed to establish that he suffered or fears *851persecution on account of a protected ground. The record does not compel a contrary result. See Tecun-Florian v. INS, 207 F.3d 1107, 1109-10 (9th Cir.2000). Accordingly, substantial evidence supports the agency’s denial of Roblero’s asylum and withholding of removal claims. See Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir.2009). Substantial evidence also supports the agency’s determination that Roblero failed to establish eligibility for CAT relief. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
We lack jurisdiction to review the agency’s discretionary determination that Roblero failed to show the hardship to a qualifying relative required for cancellation of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Roblero’s contention that the agency failed to consider his evidence of hardship in the aggregate does not present a colorable claim. See id.
We agree with the BIA’s conclusion that Roblero failed to establish that former counsel’s representation resulted in prejudice, and thus Roblero’s claim of ineffective assistance of counsel fails. See Mohammed, 400 F.3d at 793-94.
To the extent Roblero challenges the BIA’s decision to not exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a), we lack jurisdiction. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9di Cir. R. 36-3.
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SUMMARY ORDER
Philip Gurian appeals the decision of the United States District Court for the Southern District of New York (Marrero, J.) granting summary judgment on claims brought under the common law alter ego doctrine and Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78t(a), (“Section 20(a)”) in favor of the Trustee (“Trustee”) appointed by the Securities Investor Protection Corporation (“SIPC”) for the liquidation of the Adler, Coleman Clearing Corp. (“Adler”). The Trustee’s suit seeks to hold Gurian liable for the payment of default judgments the Trustee obtained against the defendant Bahamian corporations (“Bahamian Entities”) for their participation in a fraudulent stock-trading scheme that ultimately resulted in the collapse of Adler. The Trustee alleges that Gurian created and controlled the Bahamian Entities as tools to effectuate this scheme. We assume the parties’ familiarity with the facts, procedural background and issues presented for review.
To pierce the corporate veil under an alter ego theory, a plaintiff must demonstrate, inter alia, that the owner of the corporation used its control of the corporation to commit a fraud or wrong that resulted “in an unjust loss or injury to the plaintiff.” Babitt v. Vebeliunas (In re Vebeliunas), 332 F.3d 85, 91-92 (2d Cir.2003) (citing Morris v. State Dep’t of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157 (1993)). The district court held that the prior default judgments obtained by the Trustee against DePrimo and the Bahamian Entities sufficed to establish this element. See Mishkin v. Gurian (In re Adler, Coleman Clearing Corp.), 399 F.Supp.2d 486, 492 (S.D.N.Y.2005) (holding that the default judgments “establish that the Bahamian Entities committed violations of the Exchange Act and common law fraud and deceit entitling the Trustee to recover damages on behalf of Adler.”). However, the general rule is well-established that default judgments lack issue-preclusive effect.1 See Abrams v. Interco, Inc., 719 F.2d 23, 34 n. 9 (2d Cir.1983) (observing that the “accepted view” is “that the decision of issues not actually litigated, e.g., a default judgment, has no preclusive effect in other litiga*858tion”); see also Amato v. City of Saratoga Springs, 170 F.3d 311, 323 (2d Cir.1999) (Jacobs, J., concurring) (“Of course, a default judgment lacks preclusive effect in other litigation.”); Restatement (Second) of Judgments § 27 cmt. e (1982). Thus, the district court erred in granting summary judgment in favor of the Trustee on the alter ego claim.2
Likewise, the district court erred in granting summary judgment in favor of the Trustee on the Section 20(a) claim. “In order to establish a prima facie ease of liability under § 20(a), a plaintiff must show ... a primary violation by a controlled person.” Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998). The district court erroneously relied on the default judgments to establish this element. See In re Adler, Coleman Clearing Corp., 399 F.Supp.2d at 494 (“The primary violations by the Bahamian Companies have been shown by means of the [default judgments].”).
Given the procedural and factual circumstances of this case, we find no error in the district court’s use of New York law to resolve the issue of piercing the corporate veil.
For the reasons stated above, the judgment of the district court is VACATED, and the case is REMANDED to the district court for further proceedings consistent with this order.
. Several other circuits have allowed a default judgment entered as a procedural sanction to be accorded preclusive effect in a subsequent action if the sanctioned party’s abuse of the litigation process is of sufficiently outrageous severity. See, e.g., In re Docteroff, 133 F.3d 210, 215 (3d Cir.1997); In re Daily, 47 F.3d 365, 368 (9th Cir.1995); In re Bush, 62 F.3d 1319, 1324 (11th Cir.1995); In re Jordana, 232 B.R. 469, 477-78 (10th Cir. BAP 1999). We need not determine whether to adopt this exception to the general rule denying preclusive effect because it would not apply here given the (relatively insignificant) delay and obstruction by the Bahamian entities in the defaulted actions — as the Trustee himself argues, the participation of the Bahamian Entities in those actions did not extend much beyond their appearance, and the record suggests that the time between the serving of the summons and complaint and the entry of default judgment was less than four months.
. The Trustee's argument that the default judgments constituted evidence tending to show that Gurian used the Bahamian Entities to commit a wrong that harmed Adler is of no avail. The default judgments may constitute evidence of the entry of default judgment in the amount specified against DiPrimo and the Bahamian Entities, but they are not evidence of the underlying wrongful conduct.
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OPINION
PER CURIAM.
Ronald W. Telepo, Jr., a state prisoner, appeals an order of the United States District Court for the Middle District of Pennsylvania granting the defendants’ motion to dismiss a complaint filed pursuant to 42 U.S.C. § 1983. We will affirm.
On April 14, 2008, and May 12, 2008, Telepo appeared in the Monroe County Courthouse for hearings related to his criminal sentence. In his complaint, Tele-po alleged that the defendants, the Monroe County Sheriff and three County Commissioners, failed to provide him with “adequate consultation facilities within the ... County Courthouse.” As a result, he was “forced to meet with [his] attorney in the presence of sheriffsf] deputies as well as other inmates within a holding cell area.” Because he was not “able to speak privately with his public defender,” Telepo claimed that “the public defender was ill prepared to argue the issues ... concerning] ... my prior record score[,] which subsequently led to the judge sentencing me to a longer period of incarceration than I should have been sentenced to.” Telepo later asserted that “[i]f I was given a more proper area to confer with my Public Defender, (which is challenging the conditions of my confinement), I would have been able to relay information pertinent to a shorter term of incarceration (challenging my sentence and conviction).” As relief, Telepo sought a declaration that the defendants violated his right of access to the courts, an injunction ordering the defendants to provide “an area [in the Courthouse] that permits ... unobstructed and confidential communication [between inmates and] the attorneys assigned to them,” and compensatory and punitive damages.
The defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The Magistrate Judge recommended that the motion be granted and that the compliant be dismissed with prejudice. Over Telepo’s objections, the District Court adopted the Magistrate Judge’s *280Report and granted the defendants’ motion to dismiss. The District Court held that Telepo failed to allege that the defendants’ conduct caused an “actual injury,” that his claims against the County Commissioners were barred by the doctrine of respondeat superior, that the defendants were entitled to qualified immunity, and that Telepo lacked standing to seek equitable or injunctive relief. Telepo appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s grant of the Defendants’ motion to dismiss. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). We may affirm on any basis supported by the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985).
After considering the record below, we conclude that Telepo’s claims are not cognizable in a § 1983 action. Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), “when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Court extended Heck and found a claim for declaratory relief not cognizable under § 1983 because it would “necessarily imply the invalidity of the punishment imposed.” Id. at 648, 117 S.Ct. 1584. Heck and Balisok foreclose § 1983 claims only in a “narrow subset of actions,” where the deprivation of rights is such that it necessarily affects the fact or length of detention. Learner v. Fauver, 288 F.3d 532, 540 (3d Cir.2002). “[W]hen-ever the challenge ultimately attacks the ‘core of habeas’ — the validity of the continued conviction or the fact or length of the sentence — a challenge, however denominated and regardless of the relief sought, must be brought by way of habeas corpus petition. Conversely, when the challenge is to a condition of confinement such that a finding in plaintiffs favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate.” Id. at 542.
Telepo initially couched his claims in terms of his First Amendment right of “access to the courts.” As the District Court noted, the right to access the courts has typically been applied to “attempts by inmates to pursue direct appeals from the convictions for which they were incarcerated, ... habeas petitions, ... or ‘civil rights actions,’ ie., actions under 42 U.S.C. § 1983 to vindicate ‘basic constitutional rights.’ ” Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal citations omitted). But Telepo did not claim that he was denied “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.” Id. at 351,116 S.Ct. 2174. Rather, his claims are based on alleged violations of his Sixth Amendment right to assistance of counsel during the sentencing phase of his criminal trial. See United States v. Henry, 447 U.S. 264, 295, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (“the Sixth Amendment, of course, protects the confidentiality of communications between the accused and his attorney.” (Rehnquist, J., dissenting)); United States v. Johnson, 534 F.3d 690, 693 (7th Cir.2008) (‘“[T]he Sixth Amendment guarantees the right to counsel at all critical stages of the prosecution,’ and this right is applicable during sentencing hearings.” (internal citations omitted)). Telepo’s claim, if successful, would “spell speedier release,” and therefore “lies at the core of habeas corpus.” Wilkinson v. Dotson, 544 *281U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 258 (2005) (internal quotation and citation omitted); cf. Perry v. Leeke, 488 U.S. 272, 278-80, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) (addressing habeas claim that state trial court’s order directing petitioner not to consult his attorney during 15-minute recess violated petitioner’s Sixth Amendment right to assistance of counsel).
For the foregoing reasons, this appeal presents no substantial question. See I.O.P. 10.6. Accordingly, we will summarily affirm.1
. We deny Telepo's Motion for Appointment of Counsel and his Motion for Leave to File a Reply to the Appellees' Response to the Motion for Appointment of Counsel.
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OPINION
PER CURIAM.
Appellant Ronald Clifford Snee, Jr., appeals an order entered on August 27, 2009, by the United States District Court for the Western District of Pennsylvania, denying his motion for a preliminary injunction. We conclude that the appeal does not present a substantial question and will summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
Because we write solely for the benefit of the parties, we will limit our discussion to those facts relevant to our decision.
Snee is a prisoner confined at the State Correctional Institution at Forest, Pennsylvania. In June 2009, Snee filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, challenging the legality of his custody.1 Among other things, Snee claims to be in possession of a *283certified order directing his immediate release from prison.
During the proceedings, Snee moved the District Court for a temporary restraining order (“TRO”) or preliminary injunction, claiming that the Pennsylvania Department of Corrections (“DOC”) wrongfully confiscated certain legal documents from his cell. Snee argued that he could not proceed with his habeas corpus petition without the confiscated materials and thus faced irreparable harm. He also argued that the public interest favors access to the courts and that he ultimately has a strong likelihood of success on the merits of his habeas corpus petition.
Because the District Court had referred the habeas corpus petition to a Magistrate Judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), the Magistrate Judge held a telephone hearing concerning, among other things, Snee’s motion for a TRO or preliminary injunction. During the hearing, the Commonwealth argued that the materials were related to the Uniform Commercial Code (“UCC”) and that prison officials confiscated them pursuant to written DOC policy prohibiting inmate possession of UCC-related materials.2 See DC-ADM 803, 815. In response, Snee did not dispute the DOC’s classification of the materials as UCC-related contraband. Instead, he argued that DOC policy can never supersede an individual’s constitutional right of access to the court system.
The Magistrate Judge concluded that Snee had been able to adequately access the courts in the absence of the confiscated material. She observed that Snee had already filed his habeas corpus petition and that no further briefing was necessary. The Magistrate Judge determined that she would not interfere with the prison’s security decision concerning the disputed materials. She therefore denied Snee’s motion.3
Snee appealed the Magistrate Judge’s decision to the District Court. See 28 U.S.C. § 636(b)(1)(A). The Commonwealth responded by arguing, as it had in the hearing before the Magistrate Judge, that the materials were properly confiscated as contraband pursuant to written DOC policy prohibiting UCC-related material. In particular, the Commonwealth argued that the materials relate to the so-called “Redemption” theory, through which some prisoners attempt to obtain fraudulent UCC liens against prison officials in order to extort their release from prison. See Monroe v. Beard, 536 F.3d 198, 203 n. 4 (3d Cir.2008) (describing the “Redemption” theory). On August 27, 2009, the District Court issued an order concluding that the Magistrate Judge’s ruling was not clearly erroneous or contrary to law. Accordingly, the District Court denied relief.
Snee filed a timely pro se notice of appeal from the District Court’s order. On September 18, 2009, the Clerk informed the parties that this matter would be considered for possible summary action pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6 and invited the parties to submit written argument. Snee filed a response that opposes summary action and also moves this Court to issue a TRO or injunctive relief.
*284II.
We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C. § 1292(a)(1).4 We “review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). The scope of our review is limited and the burden on the party seeking reversal is high. Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
A preliminary injunction is an “extraordinary remedy.” Kos, 369 F.3d at 708. In order to obtain a preliminary injunction, Snee was required to establish four elements: a likelihood of success on the merits, irreparable injury, a favorable balance of the hardships, and consistency with the public interest. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir.1990). Failure to establish any element renders a preliminary injunction inappropriate. Nutrasweet, 176 F.3d at 153. In this case, Snee did not establish the necessary elements for issuance of a preliminary injunction. Accordingly, he has failed to establish that the District Court abused its discretion in denying his motion.
Snee primarily argues that the DOC’s confiscation of his UCC-related legal materials violated his constitutional right of unimpeded access to the court system. Contrary to Snee’s position, we have held that prisoners do not have an unrestricted constitutional right of access to legal materials. See Monroe v. Beard, 536 F.3d 198, 207-10 (3d Cir.2008). In Monroe, we concluded that a DOC policy permitting confiscation of prisoners’ UCC-related materials was not constitutionally unreasonable, particularly in light of “the DOC’s interest in protecting government officials from fraudulent liens.” Monroe, 536 F.3d at 208. Snee has offered nothing to convince us that our holding in Monroe should not apply to his claim. He therefore has not established a likelihood of success on the merits.5 He also has not established that he suffered an irreparable injury due to the prison’s alleged infringement of his constitutional rights. See id. at 208-09.
We also conclude that Snee has not established that the public interest or the balance of the hardships weigh in his favor. While Snee has argued on appeal that he requires the confiscated documents in order to present his habeas corpus petition, we see no error in the Magistrate Judge’s conclusion, affirmed by the District Court, that Snee has already ade*285quately accessed the court system and has presented his habeas corpus petition. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (to establish an unconstitutional denial of access to the courts, a prisoner must show, inter alia, a lost opportunity to pursue a nonfrivolous claim). Our review of the record reflects that, thus far, Snee has been able to adequately articulate his ha-beas corpus claims in the absence of the confiscated documents. In addition, Snee offers nothing to establish that his claim to the UCC-related materials outweighs the DOC’s legitimate security interest in protecting its officials from fraudulent UCC liens. See Monroe, 536 F.3d at 208.
Finally, Snee argues that the District Court acted arbitrarily by failing to rule upon his preliminary injunction motion in an expeditious manner. The record reflects that Snee first sought a preliminary injunction in June 2009, the Magistrate Judge held a hearing and issued a ruling in July 2009, and the District Court disposed of Snee’s appeal from the Magistrate Judge’s decision in August 2009. We conclude that Snee’s claim of unreasonable delay lacks any factual basis.
III.
We find no abuse of discretion in the District Court’s decision not to issue a preliminary injunction. Accordingly, because this appeal does not present a substantial question, we will affirm the District Court’s order. Snee’s motion for a TRO or preliminary injunction is denied.
. There is a dispute over whether Snee filed his habeas corpus petition pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241.
. DOC policy also sets forth grievance procedures through which the prisoner is permitted to oppose the confiscation and explain any legitimate basis for possessing UCC-related materials. See DC-ADM 803.
. Although the docket entry does not set forth the Magistrate Judge's disposition of Snee’s TRO/preliminary injunction motion, see Docket entry for July 30, 2009, it is clear that the Magistrate Judge denied the motion at that time. See, e.g., Docket No. 16 at 11-12 (hearing transcript).
. An immediate appeal may not normally be taken from an order granting or denying a temporary restraining order. See Nutrasweet Co. v. Vit-Mar Enterprises, Inc., 112 F.3d 689, 692 (3d Cir.1997). At times, it is difficult to distinguish which form of relief has been invoked. See id. However, temporary restraining orders are of extremely short duration and typically issue without notice to the opposing party. See Fed.R.Civ.P. 65(b). In this case, although Snee purported to request both forms of relief, he raised the issue by formal motion with notice to the Commonwealth. Accordingly, we view the motion as requesting a preliminary injunction.
. Snee has not disputed the DOC’s classification of the confiscated materials as UCC-related contraband, although he argues that the materials do not pertain to fraudulent UCC liens. Snee states that "[t]he use of the UCC in the documents was scholarly legal analysis of the Inhabitant’s fundamental rights challenging his fraudulent conviction.” We note that the record does not reflect whether Snee exhausted his administrative remedies by challenging the confiscation of the UCC-related materials through the prison’s grievance process.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
After we vacated one count of conviction, the District Court re-sentenced Appellant David Wayne Hull to one hundred and thirty months imprisonment. Hull again appeals, arguing that the District Court erred by failing to give him an opportunity to review his presentence report. Finding no error, we will affirm the District Court.
I.
David Wayne Hull is the admitted Imperial Wizard of the Ku Klux Klan. He was arrested in February of 2003 and eventually indicted and charged with numerous violations of Federal law pertaining to firearms and explosives. He was found guilty on seven of ten counts and originally sentenced to one hundred and forty-four months imprisonment. Appealing this conviction for the first time, we vacated his conviction at Count Seven and affirmed on all the remaining counts of the indictment. We remanded the case for re-sentencing. In September of 2007, the District Court reduced Hull’s sentence to one hundred and thirty months imprisonment. Hull appeals once more, this time raising two points of error in the District Court’s new sentence. We find each argument merit-less and will affirm the sentence.
II.
Hull first argues the District Court erred plainly when it failed to sua sponte allow Hull to review the pre-sentence report prepared in his case before he was re-sentenced. More accurately, Hull argues that the District Court erred in not permitting him to review for the second time the presentence report. This was the same, unaltered presentence report he admitted to reviewing prior to his first sentencing and acknowledged discussing with his lawyer. Additionally, this is the same presentence report Hull failed to object to at his original sentencing proceeding.
Fed.R.Crim.P. 32(c)(3)(A) requires that a district court “verify that the defendant and defendant’s counsel have read and discussed the presentence report” prior to sentencing. United States v. Stevens, 223 F.3d 239, 241 (3d Cir.2000). We have never interpreted this Rule as imposing an “absolute requirement” that a district *289court personally inquire if a defendant has had an opportunity to read the report and discuss it with his or her lawyer. United States v. Mays, 798 F.2d 78, 80 (3d Cir.1986). Even were such an inquiry an absolute requirement, our review of the record satisfies us that Hull and his counsel were fully aware of the information contained in the presentence report, both at his first sentencing hearing and at his second proceeding.
At his first sentencing, Hull was specifically asked by the District Court whether he had read the report and Hull indicated that he had. Hull’s counsel also demonstrated familiarity with the presentence report. Hull also was asked by the District Court at his second sentencing hearing whether Hull had reviewed the presen-tence report. After first denying that he had received it, Hull retracted that statement and indicated that he had indeed reviewed the report. The District Court also correctly noted at the second sentencing hearing that Hull had made numerous objections to the presentence report and that each of the objections had been ruled on. Our opinion vacating one of Hull’s counts of conviction did not affect Hull’s prior objections to or the District Court’s ruling on the presentence report.
Because Hull did not object to the pre-sentence report prior to his sentencing hearing, we may vacate Hull’s sentence only if we find plain error that was prejudicial. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We find no error on this record and affirm the sentence imposed by the District Court.
III.
Hull’s final issue on appeal need not detain us long. Hull attempts to raise an ineffective assistance of counsel claim based on his lawyer’s failure to object to the District Court’s purported error in not giving Hull an opportunity to review his presentence report. Our jurisprudence is clear that we do not review claims of ineffective assistance of counsel on direct appeal except under very narrow circumstances where there is clear evidence in the record of both deficient performance and prejudice requiring no further factual development. See United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.2003); see also Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (“[Ijneffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to determining the adequacy of representation during an entire trial.”). We find no extraordinary circumstances that would counsel us to review this claim on direct appeal.
IV.
In conclusion, for the reasons stated above, we will affirm the sentence, without prejudice to Hull’s right to raise the ineffective assistance of counsel claim in collateral proceedings.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Ryan Craig appeals the judgment of the United States District Court for the Middle District of Pennsylvania (District Court) granting the Government’s request to divert a portion of his seized property to victims in an unrelated federal criminal judgment entered by the United States District Court for the District of Rhode Island in 2003 (Rhode Island Court). For the reasons that follow, we will vacate and remand.
*291I.
Because we write for the parties, we recount only those facts necessary to our decision.
In 2007, a jury convicted Craig of wire fraud in violation of 18 U.S.C. § 1343. The District Court sentenced Craig to 71 months imprisonment and ordered him to pay restitution to his victims in the amount of $12,411.00, as well as a special assessment of $300.00. Because the United States Attorney for the Middle District of Pennsylvania had previously seized $16,432.00 from Craig, it sought to satisfy the restitution order from those funds. Craig conceded that the District Court could apply $12,711.00 of the seized funds to satisfy the restitution order and special assessment, but requested the return of the remaining $3,631.00 pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure. The Government opposed Craig’s motion, arguing that the balance of the seized funds should be used to pay the unsatisfied restitution order entered by the Rhode Island Court.
On July 28, 2008, the District Court granted the Government’s request regarding the $12,711.00, but addressed neither Craig’s motion for return of property nor the Government’s request regarding restitution for the Rhode Island victims.1 On December 30, 2008, 2008 WL 5412828, the District Court denied Craig’s motion for return of property and ordered the Government to remit the balance of $3,631.00 to the Clerk of the Rhode Island Court. Craig appeals the December 30 order and we have jurisdiction to consider his appeal pursuant to 28 U.S.C. § 1291.
II.
Title 18, Section 3556 authorizes district courts to order restitution in criminal cases: “[t]he court, in imposing a sentence on a defendant who has been found guilty of an offense ... may order restitution in accordance with section 3663.” Section 3663 further provides: “[t]he court, when sentencing a defendant convicted of an offense under this title [of which wire fraud is included] ... may order ... that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.” 18 U.S.C. § 3663(a)(1)(A) (emphasis added). Accordingly, restitution may only be paid to an individual if one of two conditions is met: (1) the individual is a “victim” in the present case; or (2) the restitution payment was agreed to in a plea agreement. Because Craig did not enter into a plea agreement in this case, we need consider only the first condition in assessing whether the District Court’s order directing payment to the Rhode Island victims was proper.
Section 3663 defines “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663(a)(2). Under this definition, the individuals injured as a result of Craig’s 2003 conviction for wire fraud in the District of Rhode Island do not qualify as *292“victims” because they were not “directly and proximately harmed” as a result of Craig’s present offense. Their injuries were confined to the 2003 crime for which Craig was sentenced to 27 months imprisonment and ordered to pay restitution in the amount of $58,000.00. The fact that Craig has not yet fulfilled that restitution-ary obligation does not grant the District Court authority to offer restitution to those individuals in this case.
Furthermore, the Government itself cannot claim to be a victim in either the present case or the Rhode Island case. The Government argues that the District Court was authorized to apply the seized funds because, as the District Court duly noted, an order of restitution made pursuant to § 3663 — as was made in Rhode Island — is “a lien in favor of the United States on all property and rights to property of the person fined.” 18 U.S.C. § 3613(c). However, that argument improperly conflates the Government’s entitlement to the funds with the District Court’s authority to divert those funds in this case. Though we have previously held that a governmental body may be considered a “victim” under § 3663, see United States v. Hand, 863 F.2d 1100, 1103 (3d Cir.1988) (holding that the United States Attorney’s office was entitled to restitution for time and resources wasted in light of the defendant’s impermissible conduct as a juror at trial), the Government does not assert that any governmental body was harmed by Craig’s actions. Rather, the Government is attempting to use its position as a common party — the prosecution — in both the Rhode Island and Pennsylvania cases as a means to compensate a private third party. This is not what § 3663 contemplates.
The Government also argues that the District Court was authorized to transfer the seized funds to the Rhode Island victims because it assumed jurisdiction over Craig’s supervised release for his sentence on the 2003 crime. The Government argues that “[b]y accepting transfer of jurisdiction over Craig’s supervised release, the district court had the authority to enforce the provision pertaining to payment of restitution.” We disagree because the duty to oversee Craig’s supervised release does not confer upon the District Court any authority to direct restitution in the Rhode Island case. Section 3663 authorizes a judgment of restitution at the time of sentencing, but not thereafter. See United States v. Sasnett, 925 F.2d 392, 399 (11th Cir.1991) (quoting 18 U.S.C. § 3663(a)(1)(A) (“[t]he court, when sentencing a defendant ... ”)). The fact that the District Court is empowered to conduct a supervised release revocation hearing does not change our analysis. Accordingly, the Rhode Island victims could only receive an order of restitution when Craig was sentenced in 2003.
In sum, we hold that the District Court lacked the statutory authority to order the transfer of seized funds to the Rhode Island Court for the purpose of facilitating the payment of restitution in an unrelated case. This does not mean, however, that the victims in the Rhode Island case are precluded from seeking to garnish or attach the seized funds or otherwise pursue collection of what is owed to them through any lawful means that may be available to them.
For the foregoing reasons, we will vacate the judgment of the District Court and remand the case for proceedings consistent with this opinion.
. Craig concedes that he cannot challenge the District Court’s order granting the Government’s request regarding the $12,711.00 on appeal because he waived that argument in the District Court.
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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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MEMORANDUM **
Wilman Ramiro Cano-Villatoro, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process viola*918tions in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We grant in part and deny in part the petition for review, and remand.
The BIA abused its discretion when it concluded that Cano-Villatoro failed to exercise the due diligence required for equitable tolling of the 90-day motions deadline. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir.2007) (due diligence where petitioner repeatedly sought new counsel in pursuit of relief). Cano-Villatoro and his wife diligently pursued relief from removal from eight attorneys over a period of three years. See Albillo-DeLeon v. Gonzales, 410 F.3d 1090, 1099-1100 (9th Cir.2005) (the limitations period is tolled until the petitioner “definitively learns” of counsel’s fraud).
We agree with the BIA’s determination that former counsel’s failure to advise Cano-Villatoro to marry his United States citizen girlfriend did not render the proceedings fundamentally unfair, because the alleged ineffective assistance falls outside of the scope of the hearing. See Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050-51 (9th Cir.2008).
However, the BIA failed to address Cano-Villatoro’s contentions that former counsel’s failure to adequately prepare him for his hearing before the immigration judge, failure to file briefs before the BIA and this court, and unauthorized practice of law prevented Cano-Villatoro from reasonably presenting his case. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004). We therefore remand to the BIA for consideration of these claims in the first instance.
The parties shall each bear their own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marco Antonio Chavez Lozoya and Ana Maria Reyes Rojo, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying Chavez Lozoya’s application for cancellation of removal and voluntary de*920parture, and Reyes Rojo’s application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence factual findings, Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.2008), we deny the petition for review.
Substantial evidence supports the BIA’s determination that Chavez Lozoya’s false testimony was motivated in part by a desirable outcome in his immigration proceedings, barring him from establishing the good moral character required for cancellation of removal. See 8 U.S.C. § 1101(f)(6); Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir.2001).
Even assuming Reyes Rojo’s membership in a social group, substantial evidence supports the BIA’s determination that she failed to demonstrate that she has a well-founded fear of persecution. See Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000) (general civil strife or widespread random violence is not sufficient to demonstrate a well-founded fear of persecution). Because Reyes Rojo failed to meet the lesser standard for eligibility for asylum, she necessarily failed to establish eligibility for withholding of removal. See id.
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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FUENTES, Circuit Judge,
dissenting.
The majority concludes that the District Court for the Middle District of Pennsylvania could not direct payment of money seized from James Craig, who was convict*293ed of wire fraud, towards a restitution order entered against him in an earlier case in the District of Rhode Island.2 In so concluding, the majority primarily relies upon 18 U.S.C. § 3556, which provides that:
The court, in imposing a sentence on a defendant who has been found guilty of an offense shall order restitution in accordance with section 3663A, and may order restitution in accordance with section 3663. The procedures under section 3664 shall apply to all orders of restitution under this section.
18 U.S.C. § 3663 states that restitution may be ordered during sentencing, but must be directed at a victim of the offense in the present case. In vacating the District Court’s judgment, the majority emphasizes that the Rhode Island victims were not “directly and proximately harmed” by Craig’s present offense.
In my view, § 3556 is not relevant because the Pennsylvania District Court did not enter a restitution order as to Craig’s victims in Rhode Island. Nor was it required to. That restitution order had already been entered by the Rhode Island District Court. Once an order of restitution is entered, it “may be enforced by the United States ... by all ... available means.” 18 U.S.C. § 3664(m)(l)(A). In this case, when Craig’s supervised release was transferred from Rhode Island to the District Court in Pennsylvania, the Pennsylvania Court acquired jurisdiction to enforce the Rhode Island restitution order “by all ... available means,” including directing that the balance of Craig’s seized funds be used to satisfy the Rhode Island restitution order.
In rejecting the Government’s contention that the duty to oversee Craig’s supervised release conferred upon the District Court authority to direct restitution in the Rhode Island case, the majority again emphasizes that § 3663 authorizes a judgment of restitution at sentencing, but not thereafter. However, my view is that a court can direct payment not only pursuant to its own orders, but also in accord with a valid restitution order over which it has assumed jurisdiction.
The District Court in Pennsylvania assumed jurisdiction, pursuant to 18 U.S.C. § 3605, over Craig’s supervised release in the Rhode Island case.3 The terms of Craig’s supervised release, as outlined in the judgment in the Rhode Island case, expressly provide that “[i]f this judgment imposes a fine or a restitution obligation, it shall be a condition of supervised release that the defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised release.... ” (App. 62 (emphasis added).) Hence, in obtaining jurisdiction over Craig’s supervised release in the case that *294originated in Rhode Island, the District Court also obtained jurisdiction over enforcement of the restitution order that was entered in that case and was a condition of the supervised release. Moreover, the statute authorizing the transfer of jurisdiction, 18 U.S.C. § 3605, states that “[a] court to which jurisdiction is transferred under this section is authorized to exercise all powers over the probationer or releasee that are permitted by this subchapter or subchapter B or D of chapter 227.” Section 3583, which is included in subchapter D of chapter 227, details the conditions of supervised release and grants a court authority to set certain discretionary conditions of probation outlined in § 3563(b). 18 U.S.C. 3583(d). These include making “restitution to a victim of the offense under section 3556.... ” Id. § 3563(b)(2). Section 3583 also grants a court discretion, after considering certain factors, to “modify, reduce or enlarge the conditions of supervised release.... ” Id. § 3583(e)(2). Although these provisions do not speak directly to the factual scenario in this case, I read this broad grant of authority to include the power to enforce and direct payment towards an existing restitution order in a case over which jurisdiction is assumed under § 3605.
Affirming the District Court’s decision would be an efficient and proper means of providing payment to the Rhode Island victims. It avoids unnecessarily requiring those victims to pursue potentially costly legal action to obtain funds the District Court already possesses authority to direct towards the restitution. Given my conclusion that the District Court had authority to direct payment towards the valid restitution order over which it possessed jurisdiction, I must respectfully dissent from the majority’s decision.
. Following a conviction for conspiracy to commit wire fraud, the district court in Rhode Island entered an order of restitution in the amount of $58,002 and a $100 special assessment. Thereafter, during the wire fraud investigation in the Pennsylvania case, law enforcement authorities seized $16,342 of Craig's funds. After a jury convicted Craig in the Pennsylvania case, the District Court entered a judgment ordering Craig to pay $12,411 in restitution to victims in that case and a $300 special assessment. This left a balance of $3,631 in seized funds. The District Court subsequently denied Craig’s motion for return of the remaining monies and ordered that the $3,631 be directed towards satisfying the restitution order issued in the Rhode Island case.
. Jurisdiction over Craig’s supervised release was initially transferred from the District of Rhode Island to the Eastern District of Pennsylvania on August 16, 2005, pursuant to 18 U.S.C. § 3605. The Eastern District of Pennsylvania subsequently transferred jurisdiction to the Middle District of Pennsylvania on June 14, 2007.
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OPINION
COWEN, Circuit Judge.
Scott Repella appeals a judgment of conviction for bank fraud (18 U.S.C. § 1344) on the ground that his plea was taken in violation of Rule 11 of the Federal Rules of Criminal Procedure. We will vacate the conviction for bank fraud and remand for further proceedings.
I. BACKGROUND
Repella was indicted for one count of bank fraud under 18 U.S.C. § 1344 (Count One) and one count of wire fraud under 18 U.S.C. § 1341 (Count Two). Repella pleaded guilty to both counts. He now asserts that his plea to bank fraud was invalid as it was not a knowing plea. Re-pella contends that the evidence in the record, consisting of the indictment, the plea colloquy transcript, and the pre-sen-tence report, is insufficient to establish bank fraud as the government failed to establish that he had the intent to defraud a bank.
Count One of the indictment states that: From in or about October, 2003 and continuing to in or about December, 2004, in the Middle [District] of Pennsylvania, SCOTT REPELLA willfully and knowingly executed and attempted to execute a scheme to defraud financial institutions whose deposits were insured by the Federal Deposit Insurance Corporation and to obtain money from those institutions by means of false and fraudulent representations. It was part of the scheme to defraud that Repella would make on-line check purchases of computers and related items from Gateway Computers, Staples and Dell Computers. For each purpose he provided bank information (the ABA/routing number, checking account number and check number) to the retailer on-line. Repella falsely used invalid routing numbers assigned to Citizens Savings Bank and the Wilkes Barre VA Employees Credit Union. However, before the account information was determined to be fraudulent, Repella caused the on-line retailers to ship merchandise, totaling in excess of $20,000.00 to him at various addresses within the Middle District of Pennsylvania.
(App.25.)
During the plea colloquy, Repella stated very little with respect to the bank fraud charge. He indicated that he agreed to plead guilty “[b]ecause [he] defrauded these companies.” (App.61.) It is unclear whether Repella was referring to the banks listed in Court One or to the computer retailers that he targeted. The government’s proffer did not include any statements regarding Repella’s intent, nor did the pre-sentence investigation report (“PSR”).
II. STANDARD OF REVIEW
A challenge to the sufficiency of the factual basis of a guilty plea, raised for the first time on appeal, is reviewed for plain error. See United States v. Corso, 549 F.3d 921, 928-29 (3d Cir.2008). The appellant must demonstrate “(1) that there was *296an error, ie., a deviation from a legal rule, (2) that the error was ‘plain,’ ie., clear or obvious, and (8) that the error affected his substantial rights.” Corso, 549 F.3d at 928 (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Finally, this court “will exercise our discretion to correct the unpreserved error only if [the appellant] persuades us that (4) a miscarriage of justice would otherwise result, that is, if the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 929 (internal quotation marks omitted).
III. DISCUSSION
A guilty plea must be made “voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” E.g., United States v. Lessner, 498 F.3d 185, 192 (3d Cir.2007) (quoting Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005)) (internal quotation marks omitted). “Rule 11 of the Federal Rules of Criminal Procedure sets forth the standards governing the acceptance of guilty pleas.” Lessner, 498 F.3d at 193. “A district court may not accept a plea of guilty without first personally addressing the defendant, under oath and in open court, and ascertaining that the plea is voluntary.” Id. (citing Fed.R.Crim.P. 11(b)(1), (2)). Additionally, “[t]he court must also ascertain that the defendant understands the rights that he or she is waiving by pleading guilty, and that there is a factual basis for the plea.” Id. (citing Fed.R.Crim.P. 11(b)(1), (3)). “The court may make that inquiry by looking to the defendant’s own admissions, the government’s proffer of evidence, the presentence report, or whatever means is appropriate in a specific ease — so long as the factual basis is put on the record.” United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir.2000). “A variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed.R.Crim.P. 11(h).
Under § 1344, it is unlawful to “knowingly execute[ ], or attempt[ ] to execute, a scheme or artifice — (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.... ” 18 U.S.C. § 1344. “Bank fraud may involve a scheme to take a bank’s own funds, or it may involve a scheme to take funds merely in a bank’s custody.” United States v. Thomas, 315 F.3d 190, 197 (3d Cir.2002). It is well-settled that the government must establish that a perpetrator who targets non-bank entities had an intent to harm a bank by exposing a bank to loss or liability. See United States v. Leahy, 445 F.3d 634, 647 (3d Cir.2006) (noting that “where the perpetrator had an intent to victimize the bank by exposing it to loss or liability, such conduct falls comfortably within the reach of § 1344; however, where there is no evidence that the perpetrator had an intent to victimize the bank, Thomas makes clear that merely an intent to victimize some third party does not render the conduct actionable under § 1344”).
The government failed to establish bank fraud as there is no evidence of Repella’s “intent to defraud a bank” in the indictment, plea-colloquy transcript or the PSR. Repella’s admission that he “defrauded these companies” does not indicate whether he was referring to the online retailers or the banks. The government failed to clarify this ambiguity at the plea colloquy and in the PSR.
*297The government argues that Repella intended to harm banks by putting them at risk for losses because if the online retailers sought payment from the banks and the banks paid the retailers from the fictitious accounts, the banks would forfeit those funds with no recourse. This speculation is insufficient to establish the requisite intent. Banks have no legal obligation to pay third-parties for charges incurred on non-existent accounts and it is unreasonable to assume that any of the banks at issue had policies requiring such payments. The government makes much of the purchase made using Repella’s account at the VA Federal Credit Union as he provided correct account information for an account with insufficient funds. First, there is no evidence that he knew that the account had insufficient funds. More importantly, if we were to embrace this theory of bank fraud, each time someone made a purchase with a check from an account for which there was insufficient funds, the government could indict for bank fraud.1 Congress did not contemplate such indictments.
The government also argues that had Repella proceeded to trial, it would have established his intent through his modus operandi The government asserted that:
[I]t was Repella’s method of operation to identify accounts, transposing numbers and berating bank personnel, blaming them for the error and threatening legal action. Citizens Bank, like FNCB involved in his scheme in Count 2 of the Indictment, may have attempted to accommodate Repella in the name of customer relations and hoping for repayment. Repella, however, elected not to go to trial, where his course of conduct would be evidence of his intent to defraud.
(Gov’t Br. at 17.) Additionally, the government asserted that this “has been his federal criminal history since 2001.” (Gov’t Br. at 18.)
These assertions, raised for the first time on appeal, are not supported by the record, and as such, cannot be considered when evaluating Repella’s intent. A review of Repella’s PSR indicates that he does not have any prior bank fraud convictions on his record. His criminal history indicates an extensive history of passing bad checks in exchange for goods and services; however, the intent to defraud a bank in this case cannot be inferred from that conduct.
There is an insufficient factual basis to support Repella’s conviction for bank fraud. Moreover, Repella is able to satisfy the remaining requirements of plain-error review. This circuit has held that an unsupported conviction which provided the basis for a sentence must be vacated under plain-error review, even if the defendant is serving a concurrent sentence. See United States v. Tann, 577 F.3d 533, 542-43 (3d Cir.2009) (vacating a conviction for plain error).
IV. CONCLUSION
We will vacate the judgment of conviction for bank fraud and remand for further proceedings.
. At oral argument, the government directed our attention to United States v. Schwartz, 899 F.2d 243, 247 (3d Cir.1990) for the broad proposition that passing a check on an account with insufficient funds constituted bank fraud. The government misinterpreted this case. Schwartz involved check-kiting, which is a direct assault on the deposits of a bank. Our case involves a scheme that targeted non-bank entities.
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MEMORANDUM ***
Because this court today denies appellant Eamma Jean Woods’ petition for review of the Order of Removal pending against her in a companion case, Woods v. Holder, No. 08-70936, 2010 WL 1174614 (9th Cir.2010), we dismiss as moot this appeal challenging the bond determination made by an Immigration Judge.
DISMISSED.
disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Amadou Abdoulaye Gaye and Awa Ba, husband and wife and natives and citizens *919of Senegal, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their motion to continue and finding them deportable. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and we deny in part and grant in part the petition for review.
The agency did not abuse its discretion in denying petitioners’ motion to continue where the IJ had previously granted a continuance, and petitioners’ eligibility for a section 212(e) waiver was speculative. See id. at 1247 (denial of a motion to continue was not an abuse of discretion where proceedings had previously been continued and relief was not immediately available to petitioner). It follows that petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process claim).
We grant the parties’ request that this case should be remanded for the BIA to address petitioners’ eligibility for voluntary departure.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. Each party shall bear their own costs for this petition for review.
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 **
Marco Antonio Chavez Lozoya and Ana Maria Reyes Rojo, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying Chavez Lozoya’s application for cancellation of removal and voluntary de*920parture, and Reyes Rojo’s application for withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence factual findings, Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.2008), we deny the petition for review.
Substantial evidence supports the BIA’s determination that Chavez Lozoya’s false testimony was motivated in part by a desirable outcome in his immigration proceedings, barring him from establishing the good moral character required for cancellation of removal. See 8 U.S.C. § 1101(f)(6); Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir.2001).
Even assuming Reyes Rojo’s membership in a social group, substantial evidence supports the BIA’s determination that she failed to demonstrate that she has a well-founded fear of persecution. See Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000) (general civil strife or widespread random violence is not sufficient to demonstrate a well-founded fear of persecution). Because Reyes Rojo failed to meet the lesser standard for eligibility for asylum, she necessarily failed to establish eligibility for withholding of removal. See id.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Donald Joseph Ducharme appeals pro se from the decision of the district court affirming the bankruptcy court’s order granting relief from the automatic stay to allow JR Capital Group (“JR”) to enforce a state court unlawful detainer judgment entered against Ducharme prior to his filing for bankruptcy. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the district court’s decision on an appeal from the bankruptcy court and review for an abuse of discretion the bankruptcy court’s decision to grant relief from the automatic stay. Benedor Corp. v. Conejo Enters. (In re Conejo Enters.), 96 F.3d 346, 351 (9th Cir.1996). We affirm.
The bankruptcy court did not abuse its discretion by granting relief from the automatic stay to allow JR to enforce a state court unlawful detainer judgment declaring the rental agreement between Duc-harme and JR terminated and forfeited. See 11 U.S.C. § 362(d)(1) (allowing the bankruptcy court to grant relief from the stay for cause); ef. City of Valdez v. Waterkist Corp. (In re Waterkist Corp.), 775 F.2d 1089, 1091 (9th Cir.1985) (explaining that a debtor may not assume a lease in bankruptcy that was terminated and forfeited under state law).
We are unpersuaded by Duc-harme’s contention that the order relieving JR from the automatic stay was invalidated upon approval of his chapter 13 plan because nothing in the approved plan addressed the rental agreement.
We decline to dismiss this appeal as moot because JR has failed to establish there is no effective relief remaining. See Suter v. Goedert, 504 F.3d 982, 986 (9th Cir.2007) (“[T]he party asserting mootness has the heavy burden of establishing that there is no effective relief remaining for the court to provide.”) (internal citation and quotation marks omitted).
JR’s and Ducharme’s requests for judicial notice are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
COWEN, Circuit Judge.
Scott Repella appeals a judgment of conviction for bank fraud (18 U.S.C. § 1344) on the ground that his plea was taken in violation of Rule 11 of the Federal Rules of Criminal Procedure. We will vacate the conviction for bank fraud and remand for further proceedings.
I. BACKGROUND
Repella was indicted for one count of bank fraud under 18 U.S.C. § 1344 (Count One) and one count of wire fraud under 18 U.S.C. § 1341 (Count Two). Repella pleaded guilty to both counts. He now asserts that his plea to bank fraud was invalid as it was not a knowing plea. Re-pella contends that the evidence in the record, consisting of the indictment, the plea colloquy transcript, and the pre-sen-tence report, is insufficient to establish bank fraud as the government failed to establish that he had the intent to defraud a bank.
Count One of the indictment states that: From in or about October, 2003 and continuing to in or about December, 2004, in the Middle [District] of Pennsylvania, SCOTT REPELLA willfully and knowingly executed and attempted to execute a scheme to defraud financial institutions whose deposits were insured by the Federal Deposit Insurance Corporation and to obtain money from those institutions by means of false and fraudulent representations. It was part of the scheme to defraud that Repella would make on-line check purchases of computers and related items from Gateway Computers, Staples and Dell Computers. For each purpose he provided bank information (the ABA/routing number, checking account number and check number) to the retailer on-line. Repella falsely used invalid routing numbers assigned to Citizens Savings Bank and the Wilkes Barre VA Employees Credit Union. However, before the account information was determined to be fraudulent, Repella caused the on-line retailers to ship merchandise, totaling in excess of $20,000.00 to him at various addresses within the Middle District of Pennsylvania.
(App.25.)
During the plea colloquy, Repella stated very little with respect to the bank fraud charge. He indicated that he agreed to plead guilty “[b]ecause [he] defrauded these companies.” (App.61.) It is unclear whether Repella was referring to the banks listed in Court One or to the computer retailers that he targeted. The government’s proffer did not include any statements regarding Repella’s intent, nor did the pre-sentence investigation report (“PSR”).
II. STANDARD OF REVIEW
A challenge to the sufficiency of the factual basis of a guilty plea, raised for the first time on appeal, is reviewed for plain error. See United States v. Corso, 549 F.3d 921, 928-29 (3d Cir.2008). The appellant must demonstrate “(1) that there was *296an error, ie., a deviation from a legal rule, (2) that the error was ‘plain,’ ie., clear or obvious, and (8) that the error affected his substantial rights.” Corso, 549 F.3d at 928 (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Finally, this court “will exercise our discretion to correct the unpreserved error only if [the appellant] persuades us that (4) a miscarriage of justice would otherwise result, that is, if the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 929 (internal quotation marks omitted).
III. DISCUSSION
A guilty plea must be made “voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.” E.g., United States v. Lessner, 498 F.3d 185, 192 (3d Cir.2007) (quoting Bradshaw v. Stumpf 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005)) (internal quotation marks omitted). “Rule 11 of the Federal Rules of Criminal Procedure sets forth the standards governing the acceptance of guilty pleas.” Lessner, 498 F.3d at 193. “A district court may not accept a plea of guilty without first personally addressing the defendant, under oath and in open court, and ascertaining that the plea is voluntary.” Id. (citing Fed.R.Crim.P. 11(b)(1), (2)). Additionally, “[t]he court must also ascertain that the defendant understands the rights that he or she is waiving by pleading guilty, and that there is a factual basis for the plea.” Id. (citing Fed.R.Crim.P. 11(b)(1), (3)). “The court may make that inquiry by looking to the defendant’s own admissions, the government’s proffer of evidence, the presentence report, or whatever means is appropriate in a specific ease — so long as the factual basis is put on the record.” United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir.2000). “A variance from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed.R.Crim.P. 11(h).
Under § 1344, it is unlawful to “knowingly execute[ ], or attempt[ ] to execute, a scheme or artifice — (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.... ” 18 U.S.C. § 1344. “Bank fraud may involve a scheme to take a bank’s own funds, or it may involve a scheme to take funds merely in a bank’s custody.” United States v. Thomas, 315 F.3d 190, 197 (3d Cir.2002). It is well-settled that the government must establish that a perpetrator who targets non-bank entities had an intent to harm a bank by exposing a bank to loss or liability. See United States v. Leahy, 445 F.3d 634, 647 (3d Cir.2006) (noting that “where the perpetrator had an intent to victimize the bank by exposing it to loss or liability, such conduct falls comfortably within the reach of § 1344; however, where there is no evidence that the perpetrator had an intent to victimize the bank, Thomas makes clear that merely an intent to victimize some third party does not render the conduct actionable under § 1344”).
The government failed to establish bank fraud as there is no evidence of Repella’s “intent to defraud a bank” in the indictment, plea-colloquy transcript or the PSR. Repella’s admission that he “defrauded these companies” does not indicate whether he was referring to the online retailers or the banks. The government failed to clarify this ambiguity at the plea colloquy and in the PSR.
*297The government argues that Repella intended to harm banks by putting them at risk for losses because if the online retailers sought payment from the banks and the banks paid the retailers from the fictitious accounts, the banks would forfeit those funds with no recourse. This speculation is insufficient to establish the requisite intent. Banks have no legal obligation to pay third-parties for charges incurred on non-existent accounts and it is unreasonable to assume that any of the banks at issue had policies requiring such payments. The government makes much of the purchase made using Repella’s account at the VA Federal Credit Union as he provided correct account information for an account with insufficient funds. First, there is no evidence that he knew that the account had insufficient funds. More importantly, if we were to embrace this theory of bank fraud, each time someone made a purchase with a check from an account for which there was insufficient funds, the government could indict for bank fraud.1 Congress did not contemplate such indictments.
The government also argues that had Repella proceeded to trial, it would have established his intent through his modus operandi The government asserted that:
[I]t was Repella’s method of operation to identify accounts, transposing numbers and berating bank personnel, blaming them for the error and threatening legal action. Citizens Bank, like FNCB involved in his scheme in Count 2 of the Indictment, may have attempted to accommodate Repella in the name of customer relations and hoping for repayment. Repella, however, elected not to go to trial, where his course of conduct would be evidence of his intent to defraud.
(Gov’t Br. at 17.) Additionally, the government asserted that this “has been his federal criminal history since 2001.” (Gov’t Br. at 18.)
These assertions, raised for the first time on appeal, are not supported by the record, and as such, cannot be considered when evaluating Repella’s intent. A review of Repella’s PSR indicates that he does not have any prior bank fraud convictions on his record. His criminal history indicates an extensive history of passing bad checks in exchange for goods and services; however, the intent to defraud a bank in this case cannot be inferred from that conduct.
There is an insufficient factual basis to support Repella’s conviction for bank fraud. Moreover, Repella is able to satisfy the remaining requirements of plain-error review. This circuit has held that an unsupported conviction which provided the basis for a sentence must be vacated under plain-error review, even if the defendant is serving a concurrent sentence. See United States v. Tann, 577 F.3d 533, 542-43 (3d Cir.2009) (vacating a conviction for plain error).
IV. CONCLUSION
We will vacate the judgment of conviction for bank fraud and remand for further proceedings.
. At oral argument, the government directed our attention to United States v. Schwartz, 899 F.2d 243, 247 (3d Cir.1990) for the broad proposition that passing a check on an account with insufficient funds constituted bank fraud. The government misinterpreted this case. Schwartz involved check-kiting, which is a direct assault on the deposits of a bank. Our case involves a scheme that targeted non-bank entities.
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MEMORANDUM **
Donald Joseph Ducharme appeals pro se from the decision of the district court affirming the bankruptcy court’s order granting relief from the automatic stay to allow JR Capital Group (“JR”) to enforce a state court unlawful detainer judgment entered against Ducharme prior to his filing for bankruptcy. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the district court’s decision on an appeal from the bankruptcy court and review for an abuse of discretion the bankruptcy court’s decision to grant relief from the automatic stay. Benedor Corp. v. Conejo Enters. (In re Conejo Enters.), 96 F.3d 346, 351 (9th Cir.1996). We affirm.
The bankruptcy court did not abuse its discretion by granting relief from the automatic stay to allow JR to enforce a state court unlawful detainer judgment declaring the rental agreement between Duc-harme and JR terminated and forfeited. See 11 U.S.C. § 362(d)(1) (allowing the bankruptcy court to grant relief from the stay for cause); ef. City of Valdez v. Waterkist Corp. (In re Waterkist Corp.), 775 F.2d 1089, 1091 (9th Cir.1985) (explaining that a debtor may not assume a lease in bankruptcy that was terminated and forfeited under state law).
We are unpersuaded by Duc-harme’s contention that the order relieving JR from the automatic stay was invalidated upon approval of his chapter 13 plan because nothing in the approved plan addressed the rental agreement.
We decline to dismiss this appeal as moot because JR has failed to establish there is no effective relief remaining. See Suter v. Goedert, 504 F.3d 982, 986 (9th Cir.2007) (“[T]he party asserting mootness has the heavy burden of establishing that there is no effective relief remaining for the court to provide.”) (internal citation and quotation marks omitted).
JR’s and Ducharme’s requests for judicial notice are denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Juan Jose Antonio Lopez-Lopez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we review de novo due process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The record indicates that Lopez-Lopez received the Order to Show Cause informing him that he must provide the immigration court with written notice of his change of address, see 8 C.F.R. § 3.15(c) (1994), and that the hearing notice was sent by certified mail to the address he last provided. Accordingly, the IJ did not abuse her discretion in denying Lopez-Lopez’s motion to reopen even though the hearing notice was returned to the immigration court. See 8 U.S.C. § 1252b(c)(l) (1995) (written notice is sufficient if sent to the most recent address provided by alien); see also In re Grijalva, 21 I. & N. Dec. 27, 32-34 (BIA 1995) (proof of actual service or receipt of the notice by the respondent is not required).
Due process was satisfied because “[t]he method of service was reasonably calculated to ensure that notice reached [Lopez-Lopez].” See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Delmis Gusman-Fuentes, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying her first and second motions to reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005), and we deny in part and dismiss in part the petitions for review.
The BIA did not abuse its discretion in denying Gusman-Fuentes’ first motion to reopen as untimely because she filed it more than twelve years after the *929BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2).
The BIA did not abuse its discretion in concluding that Gusman-Fuentes’ second motion to reopen was numerically barred. See id. (generally permitting one motion to reopen).
We lack jurisdiction to consider Gusman-Fuentes’ contention regarding estoppel because she did not raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (exhaustion is mandatory and jurisdictional). We also lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Carol Ann Mitchell appeals pro se from the district court’s judgment dismissing her action alleging violations of Title VII, 42 U.S.C. § 1983, and various state laws. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir.2007), and we affirm.
The district court properly dismissed the Title VII claims because Mitchell did not plead or argue that she exhausted her administrative remedies under Title VII. See Lyons v. England, 307 F.3d 1092, 1103 (9th Cir.2002) (“a plaintiff is required *933to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim”).
The district court properly dismissed the section 1983 claims because Mitchell alleged these claims against private defendants, but did not allege joint action with a state actor. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003) (“While generally not applicable to private parties, a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents.” (internal quotation marks and citation omitted)).
The district court did not abuse its discretion by declining to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3); see also Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir.2001) (explaining that a district court may decline to exercise supplemental jurisdiction over related state law claims after it dismisses the claims over which it has original jurisdiction).
The district court did not abuse its discretion by denying appointment of counsel. See Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 416-17 (9th Cir.1994) (per curiam) (listing factors to be considered in determining whether to appoint counsel under Title VII and stating standard of review).
Mitchell’s remaining contentions are unavailing.
Mitchell’s “Motion for Objection” is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Tarlochan Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009), and we deny in part and grant in part the petition for review.
Substantial evidence supports the agency’s finding that Singh failed to establish it is more likely than not he will be tortured upon return to India. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
In the notice to appear, the government alleged Singh’s entry date, and Singh admitted to this date. Therefore, Singh’s entry date was undisputed and he established his asylum application was not time-barred. See Hakopian v. Mukasey, 551 F.3d 843, 847 (9th Cir.2008) (entry date is undisputed where government alleges entry date and petitioner admits government’s allegation).
The IJ first denied Singh’s claims on the basis of an adverse credibility determination. The findings are not supported. Any inconsistencies regarding Singh’s entry into Canada are incidental to his claim of persecution. See Akinmade v. INS, 196 F.3d 951, 956 (9th Cir.1999). The IJ’s findings related to Singh’s photographs documenting the scars on his back and his Indian election commission card are based on minor discrepancies, and Singh provided reasonable explanations for any inconsistencies. See Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.1998) (“[Ijneonsisteneies of less than substantial importance for which a plausible explanation is offered” cannot serve as bases for negative credibility finding). Further, Singh’s omission of details in his testimony, which were included in his written application regarding his 1997 arrest and the May 2002 protest, does not support an adverse credibility finding, see Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir.*9362005), and Singh’s testimony was consistent with his declaration regarding the mistreatment he received during his 1989 arrest, see Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.2002). Finally, Singh produced certain corroborating documents, and his failure to produce additional newspaper articles does not support an adverse credibility finding. See Gui v. INS, 280 F.3d 1217, 1227 (9th Cir.2002) (“Where, as here, a petitioner provides some corroborative evidence to strengthen his case, his failure to produce still more supporting evidence should not be held against him.”). Thus, substantial evidence does not support the agency’s adverse credibility determination. See Bandari v. INS, 227 F.3d 1160, 1165 (9th Cir.2000).
The IJ made an alternative finding that Singh’s 1989 and 1997 arrests did not rise to the level of persecution. However, the IJ did not consider whether Singh’s 2000 and 2002 arrests rose to the level of persecution, nor did he explicitly consider whether the harm Singh experienced was on account of a protected ground. We therefore grant the petition and remand for further proceedings to determine whether, taking Singh’s testimony as true, he is eligible for asylum or withholding of removal. See Soto-Olarte, 555 F.3d at 1095-96; see also INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
*150ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 86.
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MEMORANDUM **
Juan Jose Antonio Lopez-Lopez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) order denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we review de novo due process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The record indicates that Lopez-Lopez received the Order to Show Cause informing him that he must provide the immigration court with written notice of his change of address, see 8 C.F.R. § 3.15(c) (1994), and that the hearing notice was sent by certified mail to the address he last provided. Accordingly, the IJ did not abuse her discretion in denying Lopez-Lopez’s motion to reopen even though the hearing notice was returned to the immigration court. See 8 U.S.C. § 1252b(c)(l) (1995) (written notice is sufficient if sent to the most recent address provided by alien); see also In re Grijalva, 21 I. & N. Dec. 27, 32-34 (BIA 1995) (proof of actual service or receipt of the notice by the respondent is not required).
Due process was satisfied because “[t]he method of service was reasonably calculated to ensure that notice reached [Lopez-Lopez].” See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Delmis Gusman-Fuentes, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying her first and second motions to reopen deportation proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir.2005), and we deny in part and dismiss in part the petitions for review.
The BIA did not abuse its discretion in denying Gusman-Fuentes’ first motion to reopen as untimely because she filed it more than twelve years after the *929BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2).
The BIA did not abuse its discretion in concluding that Gusman-Fuentes’ second motion to reopen was numerically barred. See id. (generally permitting one motion to reopen).
We lack jurisdiction to consider Gusman-Fuentes’ contention regarding estoppel because she did not raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (exhaustion is mandatory and jurisdictional). We also lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Carol Ann Mitchell appeals pro se from the district court’s judgment dismissing her action alleging violations of Title VII, 42 U.S.C. § 1983, and various state laws. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir.2007), and we affirm.
The district court properly dismissed the Title VII claims because Mitchell did not plead or argue that she exhausted her administrative remedies under Title VII. See Lyons v. England, 307 F.3d 1092, 1103 (9th Cir.2002) (“a plaintiff is required *933to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim”).
The district court properly dismissed the section 1983 claims because Mitchell alleged these claims against private defendants, but did not allege joint action with a state actor. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003) (“While generally not applicable to private parties, a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents.” (internal quotation marks and citation omitted)).
The district court did not abuse its discretion by declining to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3); see also Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir.2001) (explaining that a district court may decline to exercise supplemental jurisdiction over related state law claims after it dismisses the claims over which it has original jurisdiction).
The district court did not abuse its discretion by denying appointment of counsel. See Johnson v. U.S. Treasury Dep’t, 27 F.3d 415, 416-17 (9th Cir.1994) (per curiam) (listing factors to be considered in determining whether to appoint counsel under Title VII and stating standard of review).
Mitchell’s remaining contentions are unavailing.
Mitchell’s “Motion for Objection” is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ninel Grigoryan and her husband, Misak Arakelyan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Larar-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), and we deny the petition for review.
*937The BIA did not abuse its discretion in denying the motion to reopen where the petitioners failed to establish prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir.2006) (prima facie eligibility is established “where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied”). We reject the petitioners’ contention that the BIA did not adequately explain its reasons for denying the motion. See Ghaly v. INS, 58 F.3d 1425, 1430-31 (9th Cir.1995).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated cases, Mukesh Kumar Rattan, his wife Uma Urmila Rattan, and their children, all natives and citizens of Fiji, petition for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) (No. 07-70635), and the BIA’s order denying their motion to reopen (No. 07-72118). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir.2009), and we review for abuse of discretion the denial of motions to reopen, Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). In petition No. 07-70635, we deny in part and grant in part the petition for review and remand. In petition No. 07-72118, we dismiss the petition for review as moot.
Substantial evidence supports the IJ’s denial of CAT relief because Rattan failed to demonstrate it is more likely than not he will be tortured if returned to Fiji. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
Substantial evidence supports the IJ’s finding that Rattan failed to establish that his wife was robbed on account of a protected ground. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004). Substantial evidence also supports the IJ’s finding that Rattan’s inability to attend religious services due to a government imposed curfew was not persecution on account of a protected ground. See Fisher v. INS, 79 F.3d 955, 961-63 (9th Cir.1996) (en bane).
However, regarding the mistreatment Rattan suffered when answering a fire call, the beating of Rattan’s cousin, the incidents of stone-throwing, and the weekly extortion and threats of rape and arson against Rattan’s family, the IJ’s findings do not address these elements of past persecution. See Sinha, 564 F.3d at 1020-25. In addition, the IJ’s past persecution findings based on a lack of evidence are not supported by the record. Accordingly, we grant the petition with respect to Rattan’s asylum and withholding of removal claims, and we remand for the IJ to determine whether, individually or cumulatively, Rattan has established the incidents he suffered rose to the level of persecution, were on account of a protected ground, and were committed by forces the government is either unable or unwilling to control, and whether he has established a well-founded fear of future persecution. See id. at 1026.
In light of our disposition in No. 07-70635, Rattan’s challenge to the BIA’s order denying his motion to reopen is moot.
The parties shall each bear their own costs on appeal.
*939No. 07-70635: PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
No. 07-72118: PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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MEMORANDUM **
Ninel Grigoryan and her husband, Misak Arakelyan, natives and citizens of Armenia, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion, Larar-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004), and we deny the petition for review.
*937The BIA did not abuse its discretion in denying the motion to reopen where the petitioners failed to establish prima facie eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir.2006) (prima facie eligibility is established “where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied”). We reject the petitioners’ contention that the BIA did not adequately explain its reasons for denying the motion. See Ghaly v. INS, 58 F.3d 1425, 1430-31 (9th Cir.1995).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Maria Veronica Lopez Alonso, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Lopez Alonso’s motion to reopen as untimely where the motion was filed over six months after the BIA’s final decision. See 8 C.F.R. § 1003.2(c)(2).
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 **
Denisse Eneinas-Martinez appeals from the 42-month sentence imposed following her guilty-plea conviction for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(vii), and employment or use of persons under 18 years of age in drug operations, in violation of 21 U.S.C. § 861(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Eneinas-Martinez contends that her sentence is unreasonable because the district court did not grant a downward departure for imperfect duress pursuant to U.S.S.G. § 5K2.12. The record reflects that the district court did not procedurally err at sentencing, and that the below-Guidelines range sentence is substantively reasonable in light of the totality of the circumstances. See United States v. Crowe, 563 F.3d 969, 977-78 (9th Cir.2009); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also U.S.S.G. § 5K2.12.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated appeals, Francisco Flores-Babichi appeals from the 77-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and the 18-month consecutive sentence imposed following the revocation of the supervised release term he was serving for a prior guilty-plea conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, *956and we vacate the sentence and remand for resentencing.
Flores-Babichi contends that the district court procedurally erred by failing to calculate the Guidelines range, by treating the Guidelines as mandatory and/or assigning them too much weight, and by focusing on only one of the 18 U.S.C. § 3553(a) sentencing factors, to the exclusion of the remaining factors. The record reflects that the district court did not procedurally err. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).
Flores-Babichi also contends that the sentence imposed was substantively unreasonable because it was greater than necessary to accomplish the purposes of sentencing, and because the district court used a stale conviction to enhance his sentence. We remand to the district court for reconsideration of the sentence in light of United States v. Amezcua-Vasquez, 567 F.3d 1050, 1057-58 (9th Cir.2009) (holding that it may be an abuse of discretion to impose a sentence that is largely predetermined by a 16-level enhancement without accounting for the staleness of the prior conviction and the defendant’s lack of other convictions for violent crimes).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
This appeal arises out of five consolidated Chapter 11 proceedings. The debtor-in-possession in each proceeding is an incorporated nursing home. In 1998, Thelma Algood, the founder and manager of these homes, borrowed $11 million from National Health Investors, Inc. (“NHI”). The loan was secured by the nursing homes’ real property, their accounts receivable, the guarantee of Algood’s husband, Thomas, and the Mlgoods’ stock in the five nursing home corporations. The documents evidencing the loan and security agreements were later modified — in 1993, in 1994, and in 1996.
In December 1998, the loan was restructured once again. The loan documents contained a merger clause which recited that the restructured agreement superceded and replaced all previous agreements and, further, a proviso stating that the nursing homes’ “Medicaid Receivables, Medicare Receivables or CHAMPUS Receivables or any other healthcare accounts” were no longer part of the collateral securing the loan.
After the nursing home corporations sought relief under Chapter 11, NHI commenced adversary proceedings against them, seeking to enjoin them from using the “government receivables” referred to in the above proviso on the theory that it held a security interest in such receivables. Ruling on the parties’ reciprocal motions for summary judgment, the bankruptcy court disagreed. Construing the security agreement, which NHI had prepared, the court concluded that the agreement expressly excluded government receivables *939as collateral for NHI’s loan. The court also rejected NHI’s alternative request to reform the security agreement — effectively to eliminate the above proviso — on the ground of “mutual mistake.”
NHI appealed the bankruptcy court’s decision to the district court. On February 13, 2006, the district court entered an order affirming that decision. NHI now appeals, contending that the bankruptcy court erred in holding that NHI had no security interest in the debtors’ government receivables and (assuming that it had no such interest) in refusing to reform the security agreement to provide such interest.
For the reasons stated by the bankruptcy court in its dispositive ruling and the district court in its February 13 order, we agree that the merger clause and the proviso at issue eliminated NHI’s previous security interest in the debtors’ government receivables and that NHI is not entitled to a reformation of the security agreement on the ground of mutual mistake.
AFFIRMED.
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MEMORANDUM **
Jose Luis Fernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand for further proceedings.
The agency determined that Fernandez’s failure to submit his fingerprints at his hearing was sufficient reason to deny his application for a waiver under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c). The agency, however, did not have the benefit of our intervening decision in Cui v. Mukasey, 538 F.3d 1289 (9th Cir.2008), which held that refusing to continue proceedings for fingerprint processing may be an abuse of discretion. See also 8 C.F.R. § 1003.47(d) (“The [IJ] shall specify for the record ... the consequences for failing to comply with the requirement [to provide fingerprints].”). We therefore remand for the agency to reconsider its denial of Fernandez’s application. See Cui, 538 F.3d at 1292-95; see also *942Karapetyan v. Mukasey, 543 F.3d 1118, 1129-32 (9th Cir.2008)
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Denisse Eneinas-Martinez appeals from the 42-month sentence imposed following her guilty-plea conviction for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(vii), and employment or use of persons under 18 years of age in drug operations, in violation of 21 U.S.C. § 861(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Eneinas-Martinez contends that her sentence is unreasonable because the district court did not grant a downward departure for imperfect duress pursuant to U.S.S.G. § 5K2.12. The record reflects that the district court did not procedurally err at sentencing, and that the below-Guidelines range sentence is substantively reasonable in light of the totality of the circumstances. See United States v. Crowe, 563 F.3d 969, 977-78 (9th Cir.2009); United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also U.S.S.G. § 5K2.12.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated appeals, Francisco Flores-Babichi appeals from the 77-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and the 18-month consecutive sentence imposed following the revocation of the supervised release term he was serving for a prior guilty-plea conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, *956and we vacate the sentence and remand for resentencing.
Flores-Babichi contends that the district court procedurally erred by failing to calculate the Guidelines range, by treating the Guidelines as mandatory and/or assigning them too much weight, and by focusing on only one of the 18 U.S.C. § 3553(a) sentencing factors, to the exclusion of the remaining factors. The record reflects that the district court did not procedurally err. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.2007).
Flores-Babichi also contends that the sentence imposed was substantively unreasonable because it was greater than necessary to accomplish the purposes of sentencing, and because the district court used a stale conviction to enhance his sentence. We remand to the district court for reconsideration of the sentence in light of United States v. Amezcua-Vasquez, 567 F.3d 1050, 1057-58 (9th Cir.2009) (holding that it may be an abuse of discretion to impose a sentence that is largely predetermined by a 16-level enhancement without accounting for the staleness of the prior conviction and the defendant’s lack of other convictions for violent crimes).
SENTENCE VACATED; REMANDED FOR RESENTENCING.
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 **
Juan Camilo Sierra Mejia, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s conclusion that Sierra Mejia’s brother’s death and the threats against his uncle do not constitute persecution. See Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991) (requiring that any pattern of persecution against family members be “closely tied to the petitioner”). Further, substantial evidence supports the agency’s conclusion that Sierra Mejia failed to establish young men who formerly served in the military constitute a particular social group. See id. Finally, because Sierra Mejia failed to exhaust his contentions that he is eligible for asylum on account of his political opinion and his familial relationship to his brother and uncle, we do not consider them here. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, Sierra Mejia’s asylum claim fails.
Because Sierra Mejia failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the agency’s denial of CAT protection because *965Sierra Mejia failed to show it is more likely than not that he would be subject to torture if returned to Colombia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
Sierra Mejia’s contention that the agency failed to consider all of the reports he submitted with respect to conditions in Colombia fails because he did not overcome the presumption that the agency considered the reports, see Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000), and he failed to demonstrate prejudice, see Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Julia Garcia appeals from her jury-trial conviction and 37-month sentence imposed for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER AND JUDGMENT**
TIMOTHY M. TYMKOVICH, Circuit Judge.
Albert Earl Bolden, Jr., a federal prisoner, appeals the district court’s ruling that it lacks the authority to resentence him under 18 U.S.C. § 3582(c)(2) to a term of imprisonment below the amended guideline range.1 This court has jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM the decision of the district court.
I. Background
In 1999, a jury found Bolden guilty of various crimes relating to crack cocaine, and, in 2000, he was sentenced to 360 months’ imprisonment. Bolden’s sentence was calculated in accordance with the 1998 edition of the Sentencing Guidelines and reflected a total offense level of 38 and a criminal history category of VI.
Amendment 706 to the Sentencing Guidelines, effective November 1, 2007, reduced by two levels the base offense level associated with each enumerated quantity of crack cocaine set forth in USSG § 2D1.1. See United States v. Rhodes, 549 F.3d 833, 835 (10th Cir.2008), cert. denied, U.S. -, 129 S.Ct. 2052, 173 L.Ed.2d 1136 (2009). Subsequently, Amendment 706 was made retroactive. See id.
In 2009, based on Amendment 706 and pursuant to § 3582(c)(2), Bolden filed a motion to have his sentence reduced. The district court granted the motion in part. Application of Amendment 706 lowered Bolden’s total offense level to 36, which, in turn, decreased the applicable guideline range. In accordance with the amended guideline range, the district court resen-tenced Bolden to 324 months’ imprisonment.
The district court denied Bolden’s motion for a reduced sentence insofar as it requested imposition of a term of imprisonment below the amended guideline range. Citing United States v. Rhodes, the district court held that it lacked the authority to impose such a sentence.
II. Discussion
The district court’s determination of its authority to modify a sentence under *68§ 3582(c)(2) is reviewed de novo, see Rhodes, 549 F.3d at 837, as is the district court’s interpretation of a statute or the Sentencing Guidelines, see United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.2008).
In a series of cases, we have rejected Bolden’s contention that he is entitled under Amendment 706 to a further reduction in his sentence. Our precedent is clear that § 3582 resentencings are not eligible for discretionary reductions below the amended guideline range, and that the advisory provisions of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), do not apply to § 3582(c)(2) proceedings. See Rhodes, 549 F.3d at 840-41. In Rhodes, we recognized:
[T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings. Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by ‘the facts established by a plea of guilty or a jury verdict....’ Indeed, a district court in a sentence modification proceeding is authorized only to ‘reduce the [originally imposed] term of imprisonment,’ not to increase it. As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).
Rhodes, 549 F.3d at 840. “After our holding in Rhodes, [the] argument that Booker and the Sixth Amendment mandate discretion to impose a below-guidelines sentence at resentencing has been settled: they do not.” United States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2406, 173 L.Ed.2d 1313 (2009); see also United States v. Gaines, 345 Fed.Appx. 369, 374-75 (10th Cir.2009) (“We have [ ] repeatedly rejected the notion that the principles informing Booker have any role in a sentencing modification proceeding under § 3582(c)(2).”); United States v. Harris, 347 Fed.Appx. 363, 366 (10th Cir.2009) (“Kimbrough [v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007),] does not provide a separate basis for relief under § 3582(c)(2).”); accord United States v. Melvin, 556 F.3d 1190 (11th Cir.2009) (“Concluding that Booker and Kim-brough do not apply to § 3582(c)(2) proceedings, we hold that a district court is bound by the limitations on its discretion imposed by § 3582(c)(2) and the applicable policy statements by the Sentencing Commission.”), cert. denied, — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).
We have also ruled that the policy statement applicable to § 3582(c)(2) does not impermissibly vest the Sentencing Commission with the power to determine which cases the federal courts have jurisdiction to consider. See United States v. Dryden, 563 F.3d 1168, 1170 (10th Cir.2009) (considering § 1B1.10(a)(2)(B)), cert. denied, — U.S. -, 130 S.Ct. 311, 175 L.Ed.2d 206 (2009). Specifically, § lB1.10(b)(2)(A) does not violate the federal courts’ statutory or constitutional sentencing obligations, because § 3582(c)(2) “explicitly references the applicability of Sentencing Commission policy statements.” United States v. Petties, 327 Fed.Appx. 786, 788 (10th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 329, 175 L.Ed.2d 217 (2009). Accordingly, because § lB1.10(b)(2)(A) clearly indicates that sentencing courts shall not impose sentences below the amended guideline range, and because that policy statement is binding on district courts pursuant to § 3582(c)(2), district courts lack the authority to impose modified sentences that *69fall below the amended guideline range. See Rhodes, 549 F.3d at 841.2
The district court thus did not err in concluding that it lacked the authority to resentence Bolden below the amended guideline range. Bolden suggests that our decisions — namely, Rhodes, Pedraza, and Petties — concerning the relationship between § 8582(c)(2), § 1B1.10, and district courts’ resentencing authority were incorrectly decided. Bolden points to Spears v. United States, — U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), and Nelson v. United States, — U.S. -, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) to support the position that the discretion Booker accorded district courts in imposing original sentences applies to resentencings as well. Bolden also contends that we have not adequately taken into account the Sentencing Reform Act’s legislative history or the differences between guidelines and policy statements.
Neither Spears nor Nelson dealt with resentencing under § 3582(c). Rather, they concerned initial sentencings. We have previously noted that, while Booker excised statutory provisions mandating that judges impose within-guidelines sentences in original sentencings, it did not touch § 3582(c)(2) proceedings. See Pedraza, 550 F.3d at 1220. “A resentencing proceeding is an entirely different animal that does not implicate the Sixth Amendment concerns that drove the Booker remedy.” Id. The Supreme Court’s holdings in Spears and Nelson, therefore, do not support extending Booker to § 3582(c)(2) proceedings and finding that district courts have authority to resentence below the amended guideline range. Bolden does not identify, and a careful reading does not reveal, any language from Spears and Nelson that necessitates a different conclusion.3
Bolden’s reliance on legislative history is similarly misplaced. “[Legislative history is often murky, ambiguous, and contradictory, and [the court] should resort to it only when a statute’s plain language is unclear.” Ford v. Ford Motor Credit Corp., 574 F.3d 1279, 1293 (10th Cir.2009) (internal quotation marks and *70citation omitted). Section 3582(c)(2)’s language is not ambiguous with regard to the limiting effect of policy statements. The statute expressly states that a sentencing reduction is allowed, “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Furthermore, the legislative history of the Sentencing Reform Act that Bolden cites does not discuss § 3582(c)(2), let alone the specific language at issue. In short, the language of the statute is unambiguous and reference to legislative history is unwarranted — B olden’s legislative-history argument does not support the conclusion that district courts may resentence below the amended guideline range.
Bolden also asserts, based on United States v. Lee, 957 F.2d 770 (10th Cir.1992), and United States v. Tsosie, 376 F.3d 1210 (10th Cir.2004), that the policy statement applicable to § 3582(c)(2) proceedings should be considered advisory, rather than mandatory. But both Lee and Tsosie concerned the revocation of supervised release; they did not involve issues relating to resentencing.4 Both cases acknowledge that the policy statements of Chapter 7 of the Sentencing Guidelines are advisory in nature. In reaching our conclusion in Lee, we noted that our holding was specifically limited to Chapter 7 and that “[o]ther policy statements in the Sentencing Guidelines must be examined separately in the context of their statutory basis and their accompanying commentary.” Lee, 957 F.2d at 773. Specifically,
[t]he cases noting the mandatory nature of this provision in § 5K1.1 recognize that the motion requirement is suggested, if not compelled, by the underlying statute; they do not hold that policy statements are binding as a general rule. A provision set out in a policy statement may be binding because required by the underlying statutes.
Id. at 773-74.
Contrary to Bolden’s suggestion, Lee, and by extension Tsosie, do not support finding § lB1.10(b)(2)(A) merely advisory. Instead, those cases instruct us to base our determination on an examination of the underlying statute, § 3582(c)(2). The clear language of § 3582(c)(2) — a sentencing reduction is allowed, “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission” — promotes the conclusion that § lB1.10(b)(2)(A) is mandatory and, therefore, that district courts cannot resentence below the amended guideline range.
III. Conclusion
For the foregoing reasons, we AFFIRM the ruling of the district court.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Recently, the court has addressed a number of appeals relating to Amendment 706 of the United States Sentencing Guidelines. This decision’s reasoning and holding are consistent with our determinations in those other "crack cases.” In particular, see: United States v. Williams, No. 09-6053, 359 Fed.Appx. 70, 2010 WL 11063 (10th cir.2010); United States v. Chatman, No. 09-6078, 359 Fed.Appx. 62, 2010 WL 11044 (10th Cir.2010); United States v. Burris, 354 Fed.Appx. 308 (10th Cir.2009); and United States v. Hodge, 354 Fed.Appx. 306 (10th Cir.2009).
. Similarly, in United States v. Savoy, the Second Circuit stated:
We are bound by the language of this policy statement because Congress has made it clear that a court may reduce the terms of imprisonment under § 3582(c) only if doing so is consistent with applicable policy statements issued by the Sentencing Commission. We therefore join the majority of circuits and hold that district courts lack the authority when reducing a sentence pursuant to § 3582(c)(2) to reduce that sentence below the amended Guidelines range....
567 F.3d 71, 74 (2d Cir.2009) (internal punctuation omitted), cert. denied, - U.S. -, 130 S.Ct. 342, 175 L.Ed.2d 246 (2009); see also United States v. Fanfan, 558 F.3d 105, 110 (1st Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 99, 175 L.Ed.2d 67 (2009); United States v. Doe, 564 F.3d 305, 313 (3d Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 563, - L.Ed.2d - (2009); United States v. Dunphy, 551 F.3d 247, 251-56 (4th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 517, - L.Ed.2d - (2009); United States v. Washington, 584 F.3d 693, 696-701 (6th Cir.2009); United States v. Cunningham, 554 F.3d 703, 705-09 (7th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009); but see United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir.2007).
. Moreover, overturning this court's prior precedent requires either an intervening en banc decision of this court or a superseding contrary decision by the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993). We are aware the Supreme Court recently announced it will review resentencing next year in Dillon v. United States, - U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009) (granting certiorari).
. In United States v. Tsosie, 376 F.3d 1210 (10th Cir.2004), the court did not alter the holding of United States v. Lee, 957 F.2d 770 (10th Cir.1992), and relied on the Lee court’s reasoning in reaching its conclusion. See Tsosie, 376 F.3d at 1218.
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SUMMARY ORDER
Kossi Anthony Amekoudji, a native and citizen of Togo, seeks review of a September 18, 2008 order of the BIA denying his motion to remand and affirming the May 2, 2007 decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Kossi Anthony Amekoudji, No. A095 570 821 (B.I.A. Sep. 18, 2008), aff'g No. A095 570 821 (Immig. Ct. N.Y. City May 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Withholding of Removal and CAT Relief
Amekoudji argues that the BIA failed to consider background evidence in the record in denying his claims for withholding of removal and CAT relief. Specifically, Amekoudji asserts that the BIA failed to consider the U.S. State Department and Amnesty International reports he submitted. Although the agency has an obligation to consider all evidence relevant to an applicant’s claim, it need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Rather, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Here, because the agency found Amekoudji not credible, the background evidence in the record was largely immaterial. Thus, there is no indication that the agency failed to consider any of the evidence he submitted.2 See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 68 (2d Cir.2002). Accordingly, the agency reasonably denied Amekoudji’s application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006).
II. Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on additional evidence is held to the substantive requirements of a *177motion to reopen. Id. at 156. The mov-ant’s failure to submit previously unavailable material evidence is a proper ground on which the BIA may deny such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Although Amekoudji asserts that the evidence he submitted with the motion to remand was previously unavailable because it was not created until after the May 2007 merits hearing, the regulations define evidence as previously unavailable when it “could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Here, evidence that Amekoudji had a psychological condition could have been discovered prior to the merits hearing because the doctor’s affidavit indicated that this condition existed since before he came to the United States. Thus, because the BIA reasonably found that Amekoudji failed to present previously unavailable evidence, it did not abuse its discretion in rejecting his motion to remand. See id.; Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
To the extent Amekoudji argues that the BIA violated his due process rights by failing to consider his doctor’s affidavit, that argument is without merit. First, Amekoudji had no due process right to a discretionary grant of a motion to remand. See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008). Even if he did, it is clear that he had a full and fair opportunity to present his claims where he had two full merits hearings before an IJ and the opportunity to appeal both decisions to the BIA. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Amekoudji does not challenge the agency's conclusion that he was not credible.
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OPINION
PER CURIAM.
Ronald Seaton appeals from an order of the United States District Court for the District of New Jersey dismissing his ha-beas corpus petition for lack of jurisdiction.
Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, Seaton was convicted of possession with intent to deliver cocaine, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon. He was sentenced to 240 months in prison. We affirmed the judgment of conviction and sentence. United States v. Seaton, 178 Fed.Appx. 172 (3d Cir.2006). Seaton filed a 28 U.S.C. § 2255 motion to vacate, which the sentencing court denied on its merits. United States v. Seaton, Crim. Action No. 04-00049 (E.D. Pa. June 12, 2007). Seaton did not appeal.
On July 31, 2009, while incarcerated at the Federal Correctional Institution at Fairton, New Jersey, Seaton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the District of New Jersey. In the § 2241 petition, he claimed that he was wrongly sentenced as a career criminal offender based on his conviction for simple drug possession, he was sentenced under a sentencing guideline that did not exist, and he was wrongly sentenced to consecutive terms of imprisonment on his firearms charges when he *272should have been exempt from consecutive sentencing under 18 U.S.C. § 924(c)(1)(A). Seaton contended that he should be permitted to pursue habeas relief through § 2241 because § 2255 is inadequate and ineffective to attack his conviction and sentence.
The District Court dismissed the § 2241 petition for lack of jurisdiction, ruling that § 2255 could not be considered ineffective or inadequate to test the legality of Sea-ton’s sentence. Moreover, the court determined that because Seaton’s first § 2255 motion to vacate was denied on its merits, he had to obtain leave from this Court to file a second or successive § 2255 motion in the appropriate court. Seaton timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we review the District Court’s judgment de novo. See Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002). Motions pursuant to § 2255 “are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Id. at 120. A prisoner may bring such a challenge in a petition under § 2241 only where the remedy provided under § 2255 is inadequate or ineffective to test the legality of the detention. See § 2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). A motion under § 2255 is inadequate or ineffective “only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim.” Cradle, 290 F.3d at 538. “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.” Id. at 539.
We agree with the reasons given by the District Court for dismissing the petition. Seaton has not shown that § 2255 is inadequate or ineffective to test the legality of his sentencing claims. See Okereke, 307 F.3d at 120-21. The “safety valve” provided under § 2255 is extremely narrow and has been held to apply in rare circumstances, such as those in which a prisoner has had no prior opportunity to challenge his conviction for a crime later deemed to be non-criminal because of an intervening change in the law. Id. at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir1997)). Such is not the case here. The exception identified in In re Dorsainvil is simply inapplicable, and Seaton may not seek relief under § 2241. His only recourse is to request our permission to file a second or successive § 2255 motion in the sentencing court in the Eastern District of Pennsylvania. See §§ 2255(h) and 2244(b)(3)(A).
Upon thorough review of Seaton’s arguments in support of his appeal, we conclude that his actual innocence claim is meritless.1 Absent any demonstration of new reliable evidence of his factual innocence, Seaton cannot show that it is more likely than not that no reasonable juror would have convicted him. See House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Because the appeal does not present a substantial question, we will summarily af*273firm the judgment of the District Court. See Third Cir. L.A.R. 27.4 and I.O.P. 10.6.
. Seaton's claim alleges that because he is actually innocent of the crimes for which he was convicted, the denial of his § 2241 petition for lack of jurisdiction constitutes a miscarriage of justice.
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OPINION
PER CURIAM.
Appellant Michael Piskanin, a state prisoner, filed a civil rights complaint on July 13, 2009 in United States District Court for the Eastern District of Pennsylvania against the Lehigh County Court of Common Pleas and all of its judges, the state *277supreme court and all of its justices, and others, alleging that his prosecution and conviction in Lehigh County at CCP 2072/2004 were the product of a retaliatory conspiracy. Attached to the Complaint, but not separately noted on the district court docket, was a three-page “Motion for Westfall and Other Relief Pending Due Process with Motion for Leave to Proce [sic ] In Forma Pauperis.” In this motion, Piskanin asserted that he was without sufficient funds to mail a copy of his certified account statement to the court and that part of his problem was due to the operation of Act 84.1 Piskanin asked the District Court to take notice of the fact that he had been granted in forma pauperis status in four other civil actions, and grant him in forma pauperis status in the present action on that basis.
The District Court considered Piskanin’s motion to proceed in forma pauperis and denied it without prejudice in an order filed on July 23, 2009 on the ground that he failed to provide sufficient financial information for the court to determine his ability to pay the filing fee, and because he failed to file a certified copy of his inmate account statement as required by 28 U.S.C. § 1915(a)(2). The District Court gave Piskanin 30 days to cure these defects. In response, Piskanin filed two Department of Corrections inmate account statements covering his transactions at the prison from July 3, 2008 through April 9, 2009, and indicating a balance of -$21.58 on April 9, 2009, and what appears to be his personal account statement covering transactions at the prison from July 1, 2009 through August 3, 2009, indicating that his balance had fallen to -$65.73. In addition, he filed a Certification from an Authorized Prison Official in which the certifying official noted that Piskanin had a balance in his inmate account of -$65.73.
In an order entered on August 26, 2009, the District Court denied Piskanin’s motion to proceed in forma pauperis without prejudice to “his right to file a new civil action in which he complies with all applicable filing requirements.” In a footnote, the District Court concluded that Piska-nin’s response to the court’s July 23, 2009 order was inadequate because he filed only a partial account statement and he failed to file a new motion to proceed in forma pauperis.
Piskanin appeals. Our Clerk granted him leave to appeal informa pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. Piskanin filed in this Court an “emergency motion for relief to preserve the status quo” prior to the Clerk’s Order granting him informa pauperis status.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because it clearly appears that no substantial question is presented by this appeal. We have jurisdiction under 28 U.S.C. § 1291. See Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir.2001) (if plaintiff cannot cure defects or declares his intention to stand on motion, order dismissing without prejudice is ap-pealable); Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976) (same). We review the denial of a motion to proceed in forma pauperis for abuse of discretion. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337, 69 S.Ct. 85, 93 L.Ed. 43 (1948); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir.1983).
*278The in forma pauperis statute provides that the District Court may authorize the commencement of a civil action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees....” 28 U.S.C. § 1915(a)(1). In addition to submitting this affidavit of poverty, a “prisoner seeking to bring a civil action ... without prepayment of fees ... shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint ..., obtained from the appropriate official of each prison at which the prisoner is or was confined.” Id. at § 1915(a)(2).
The in forma pauperis statute does not authorize the District Court to “take judicial notice” of prior grants of pauper status. Each new lawsuit filed requires an up-to-date affidavit of poverty and inmate account statement for the 6-month period immediately preceding the filing of the complaint. Although Piskanin supplied his current inmate account balance, the statute required him to provide an inmate account statement covering the six-month period from January 13, 2009 to July 13, 2009. He supplied no account information for the period from April 9, 2009 to July 1, 2009. Even if we concluded that the inmate account statements he submitted were substantially complete, Piskanin’s motion to proceed in forma pauperis did not contain the required affidavit of poverty identifying all of his assets. There thus was no way for the District Court to determine whether he is currently financially eligible to proceed without prepayment of the fees, see Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.1976). Having filed by his own admission four prior civil actions, Piskanin is charged with knowing what forms are required and how to request an Application to Proceed In Forma Pauperis from the Clerk of Court.
For the foregoing reasons, we will summarily affirm the order of the District Court denying the application to proceed in forma pauperis. Appellant’s Emergency Motion for Relief to Preserve the Status Quo is denied.
. Act 84 authorizes the Pennsylvania Department of Corrections to make deductions from an inmate’s account for the purpose of collecting costs, fines and restitution or other court-ordered obligations associated with the inmate's prosecution. See Sweatt v. Dep’t of Corrections, 769 A.2d 574 (Pa.Commw.Ct.2001).
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MEMORANDUM **
Juan Camilo Sierra Mejia, a native and citizen of Colombia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and we review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s conclusion that Sierra Mejia’s brother’s death and the threats against his uncle do not constitute persecution. See Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991) (requiring that any pattern of persecution against family members be “closely tied to the petitioner”). Further, substantial evidence supports the agency’s conclusion that Sierra Mejia failed to establish young men who formerly served in the military constitute a particular social group. See id. Finally, because Sierra Mejia failed to exhaust his contentions that he is eligible for asylum on account of his political opinion and his familial relationship to his brother and uncle, we do not consider them here. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, Sierra Mejia’s asylum claim fails.
Because Sierra Mejia failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the agency’s denial of CAT protection because *965Sierra Mejia failed to show it is more likely than not that he would be subject to torture if returned to Colombia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
Sierra Mejia’s contention that the agency failed to consider all of the reports he submitted with respect to conditions in Colombia fails because he did not overcome the presumption that the agency considered the reports, see Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.2000), and he failed to demonstrate prejudice, see Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Brandon Lamar Dancy appeals from his guilty-plea conviction and 77-month sentence imposed for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Dancy’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Julia Garcia appeals from her jury-trial conviction and 37-month sentence imposed for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Steven Kinney appeals pro se from the district court’s May 29, 2008, order denying his requests for documents and to unseal a portion of the record. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion when it denied Kinney’s post-judgment motions.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER AND JUDGMENT**
TIMOTHY M. TYMKOVICH, Circuit Judge.
Albert Earl Bolden, Jr., a federal prisoner, appeals the district court’s ruling that it lacks the authority to resentence him under 18 U.S.C. § 3582(c)(2) to a term of imprisonment below the amended guideline range.1 This court has jurisdiction pursuant to 28 U.S.C. § 1291. We AFFIRM the decision of the district court.
I. Background
In 1999, a jury found Bolden guilty of various crimes relating to crack cocaine, and, in 2000, he was sentenced to 360 months’ imprisonment. Bolden’s sentence was calculated in accordance with the 1998 edition of the Sentencing Guidelines and reflected a total offense level of 38 and a criminal history category of VI.
Amendment 706 to the Sentencing Guidelines, effective November 1, 2007, reduced by two levels the base offense level associated with each enumerated quantity of crack cocaine set forth in USSG § 2D1.1. See United States v. Rhodes, 549 F.3d 833, 835 (10th Cir.2008), cert. denied, U.S. -, 129 S.Ct. 2052, 173 L.Ed.2d 1136 (2009). Subsequently, Amendment 706 was made retroactive. See id.
In 2009, based on Amendment 706 and pursuant to § 3582(c)(2), Bolden filed a motion to have his sentence reduced. The district court granted the motion in part. Application of Amendment 706 lowered Bolden’s total offense level to 36, which, in turn, decreased the applicable guideline range. In accordance with the amended guideline range, the district court resen-tenced Bolden to 324 months’ imprisonment.
The district court denied Bolden’s motion for a reduced sentence insofar as it requested imposition of a term of imprisonment below the amended guideline range. Citing United States v. Rhodes, the district court held that it lacked the authority to impose such a sentence.
II. Discussion
The district court’s determination of its authority to modify a sentence under *68§ 3582(c)(2) is reviewed de novo, see Rhodes, 549 F.3d at 837, as is the district court’s interpretation of a statute or the Sentencing Guidelines, see United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.2008).
In a series of cases, we have rejected Bolden’s contention that he is entitled under Amendment 706 to a further reduction in his sentence. Our precedent is clear that § 3582 resentencings are not eligible for discretionary reductions below the amended guideline range, and that the advisory provisions of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), do not apply to § 3582(c)(2) proceedings. See Rhodes, 549 F.3d at 840-41. In Rhodes, we recognized:
[T]he Sixth Amendment concerns that gave rise to the Booker decision will not be replicated in sentence modification proceedings. Given the narrow scope of sentence modification proceedings, there is no concern that a district court in such a proceeding will make factual findings that in turn will raise a defendant’s sentence beyond the level justified by ‘the facts established by a plea of guilty or a jury verdict....’ Indeed, a district court in a sentence modification proceeding is authorized only to ‘reduce the [originally imposed] term of imprisonment,’ not to increase it. As a result, we conclude that Booker simply has no bearing on sentencing modification proceedings conducted under § 3582(c)(2).
Rhodes, 549 F.3d at 840. “After our holding in Rhodes, [the] argument that Booker and the Sixth Amendment mandate discretion to impose a below-guidelines sentence at resentencing has been settled: they do not.” United States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir.2008), cert. denied, - U.S. -, 129 S.Ct. 2406, 173 L.Ed.2d 1313 (2009); see also United States v. Gaines, 345 Fed.Appx. 369, 374-75 (10th Cir.2009) (“We have [ ] repeatedly rejected the notion that the principles informing Booker have any role in a sentencing modification proceeding under § 3582(c)(2).”); United States v. Harris, 347 Fed.Appx. 363, 366 (10th Cir.2009) (“Kimbrough [v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007),] does not provide a separate basis for relief under § 3582(c)(2).”); accord United States v. Melvin, 556 F.3d 1190 (11th Cir.2009) (“Concluding that Booker and Kim-brough do not apply to § 3582(c)(2) proceedings, we hold that a district court is bound by the limitations on its discretion imposed by § 3582(c)(2) and the applicable policy statements by the Sentencing Commission.”), cert. denied, — U.S. -, 129 S.Ct. 2382, 173 L.Ed.2d 1300 (2009).
We have also ruled that the policy statement applicable to § 3582(c)(2) does not impermissibly vest the Sentencing Commission with the power to determine which cases the federal courts have jurisdiction to consider. See United States v. Dryden, 563 F.3d 1168, 1170 (10th Cir.2009) (considering § 1B1.10(a)(2)(B)), cert. denied, — U.S. -, 130 S.Ct. 311, 175 L.Ed.2d 206 (2009). Specifically, § lB1.10(b)(2)(A) does not violate the federal courts’ statutory or constitutional sentencing obligations, because § 3582(c)(2) “explicitly references the applicability of Sentencing Commission policy statements.” United States v. Petties, 327 Fed.Appx. 786, 788 (10th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 329, 175 L.Ed.2d 217 (2009). Accordingly, because § lB1.10(b)(2)(A) clearly indicates that sentencing courts shall not impose sentences below the amended guideline range, and because that policy statement is binding on district courts pursuant to § 3582(c)(2), district courts lack the authority to impose modified sentences that *69fall below the amended guideline range. See Rhodes, 549 F.3d at 841.2
The district court thus did not err in concluding that it lacked the authority to resentence Bolden below the amended guideline range. Bolden suggests that our decisions — namely, Rhodes, Pedraza, and Petties — concerning the relationship between § 8582(c)(2), § 1B1.10, and district courts’ resentencing authority were incorrectly decided. Bolden points to Spears v. United States, — U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), and Nelson v. United States, — U.S. -, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) to support the position that the discretion Booker accorded district courts in imposing original sentences applies to resentencings as well. Bolden also contends that we have not adequately taken into account the Sentencing Reform Act’s legislative history or the differences between guidelines and policy statements.
Neither Spears nor Nelson dealt with resentencing under § 3582(c). Rather, they concerned initial sentencings. We have previously noted that, while Booker excised statutory provisions mandating that judges impose within-guidelines sentences in original sentencings, it did not touch § 3582(c)(2) proceedings. See Pedraza, 550 F.3d at 1220. “A resentencing proceeding is an entirely different animal that does not implicate the Sixth Amendment concerns that drove the Booker remedy.” Id. The Supreme Court’s holdings in Spears and Nelson, therefore, do not support extending Booker to § 3582(c)(2) proceedings and finding that district courts have authority to resentence below the amended guideline range. Bolden does not identify, and a careful reading does not reveal, any language from Spears and Nelson that necessitates a different conclusion.3
Bolden’s reliance on legislative history is similarly misplaced. “[Legislative history is often murky, ambiguous, and contradictory, and [the court] should resort to it only when a statute’s plain language is unclear.” Ford v. Ford Motor Credit Corp., 574 F.3d 1279, 1293 (10th Cir.2009) (internal quotation marks and *70citation omitted). Section 3582(c)(2)’s language is not ambiguous with regard to the limiting effect of policy statements. The statute expressly states that a sentencing reduction is allowed, “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Furthermore, the legislative history of the Sentencing Reform Act that Bolden cites does not discuss § 3582(c)(2), let alone the specific language at issue. In short, the language of the statute is unambiguous and reference to legislative history is unwarranted — B olden’s legislative-history argument does not support the conclusion that district courts may resentence below the amended guideline range.
Bolden also asserts, based on United States v. Lee, 957 F.2d 770 (10th Cir.1992), and United States v. Tsosie, 376 F.3d 1210 (10th Cir.2004), that the policy statement applicable to § 3582(c)(2) proceedings should be considered advisory, rather than mandatory. But both Lee and Tsosie concerned the revocation of supervised release; they did not involve issues relating to resentencing.4 Both cases acknowledge that the policy statements of Chapter 7 of the Sentencing Guidelines are advisory in nature. In reaching our conclusion in Lee, we noted that our holding was specifically limited to Chapter 7 and that “[o]ther policy statements in the Sentencing Guidelines must be examined separately in the context of their statutory basis and their accompanying commentary.” Lee, 957 F.2d at 773. Specifically,
[t]he cases noting the mandatory nature of this provision in § 5K1.1 recognize that the motion requirement is suggested, if not compelled, by the underlying statute; they do not hold that policy statements are binding as a general rule. A provision set out in a policy statement may be binding because required by the underlying statutes.
Id. at 773-74.
Contrary to Bolden’s suggestion, Lee, and by extension Tsosie, do not support finding § lB1.10(b)(2)(A) merely advisory. Instead, those cases instruct us to base our determination on an examination of the underlying statute, § 3582(c)(2). The clear language of § 3582(c)(2) — a sentencing reduction is allowed, “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission” — promotes the conclusion that § lB1.10(b)(2)(A) is mandatory and, therefore, that district courts cannot resentence below the amended guideline range.
III. Conclusion
For the foregoing reasons, we AFFIRM the ruling of the district court.
This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
. Recently, the court has addressed a number of appeals relating to Amendment 706 of the United States Sentencing Guidelines. This decision’s reasoning and holding are consistent with our determinations in those other "crack cases.” In particular, see: United States v. Williams, No. 09-6053, 359 Fed.Appx. 70, 2010 WL 11063 (10th cir.2010); United States v. Chatman, No. 09-6078, 359 Fed.Appx. 62, 2010 WL 11044 (10th Cir.2010); United States v. Burris, 354 Fed.Appx. 308 (10th Cir.2009); and United States v. Hodge, 354 Fed.Appx. 306 (10th Cir.2009).
. Similarly, in United States v. Savoy, the Second Circuit stated:
We are bound by the language of this policy statement because Congress has made it clear that a court may reduce the terms of imprisonment under § 3582(c) only if doing so is consistent with applicable policy statements issued by the Sentencing Commission. We therefore join the majority of circuits and hold that district courts lack the authority when reducing a sentence pursuant to § 3582(c)(2) to reduce that sentence below the amended Guidelines range....
567 F.3d 71, 74 (2d Cir.2009) (internal punctuation omitted), cert. denied, - U.S. -, 130 S.Ct. 342, 175 L.Ed.2d 246 (2009); see also United States v. Fanfan, 558 F.3d 105, 110 (1st Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 99, 175 L.Ed.2d 67 (2009); United States v. Doe, 564 F.3d 305, 313 (3d Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 563, - L.Ed.2d - (2009); United States v. Dunphy, 551 F.3d 247, 251-56 (4th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2401, 173 L.Ed.2d 1296 (2009); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.2009), cert. denied, - U.S. -, 130 S.Ct. 517, - L.Ed.2d - (2009); United States v. Washington, 584 F.3d 693, 696-701 (6th Cir.2009); United States v. Cunningham, 554 F.3d 703, 705-09 (7th Cir.2009), cert. denied, - U.S. -, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009); but see United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir.2007).
. Moreover, overturning this court's prior precedent requires either an intervening en banc decision of this court or a superseding contrary decision by the Supreme Court. See In re Smith, 10 F.3d 723, 724 (10th Cir.1993). We are aware the Supreme Court recently announced it will review resentencing next year in Dillon v. United States, - U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009) (granting certiorari).
. In United States v. Tsosie, 376 F.3d 1210 (10th Cir.2004), the court did not alter the holding of United States v. Lee, 957 F.2d 770 (10th Cir.1992), and relied on the Lee court’s reasoning in reaching its conclusion. See Tsosie, 376 F.3d at 1218.
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PER CURIAM:
Humberto Dominguez, appointed counsel for Nelson Duarte in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Duarte’s convictions and sentences are AFFIRMED.
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ON PETITION FOR WRIT OF MANDAMUS
PER CURIAM.
ORDER
Alphonso Scott petitions for a writ of mandamus to direct the United States Court of Appeals for Veterans Claims to reopen his case in Scott v. Principi, case no. 98-1073. Scott also moves for leave proceed in forma pauperis.
On June 1, 1998, the Board of Veterans’ Appeals denied Scott’s claims for service connection for an acquired psychiatric disorder and post-traumatic stress disorder. After various proceedings, the Court of Appeals for Veterans Claims entered final judgment on May 14, 2001, and issued its mandate on July 17, 2001. On November 20, 2008, Scott attempted to file a motion in his closed case. In correspondence dated February 9, 2009, the Court of Appeals for Veterans Claims returned Scott’s motion and informed him that his case was closed in July of 2001 and he no longer had an appeal before that court. Scott then filed this petition for a writ of mandamus.
The remedy of mandamus is available only in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).
Based upon the papers submitted, Scott has not met his burden of showing entitlement to a writ. Specifically, Scott has not shown a clear abuse of discretion or usurpation of judicial power.
Accordingly,
IT IS ORDERED THAT:
(1) The petition is denied.
(2) Scott’s motion for leave to proceed in forma pauperis is denied as moot.
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SUMMARY ORDER
Kossi Anthony Amekoudji, a native and citizen of Togo, seeks review of a September 18, 2008 order of the BIA denying his motion to remand and affirming the May 2, 2007 decision of Immigration Judge (“IJ”) George T. Chew, which denied his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Kossi Anthony Amekoudji, No. A095 570 821 (B.I.A. Sep. 18, 2008), aff'g No. A095 570 821 (Immig. Ct. N.Y. City May 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Withholding of Removal and CAT Relief
Amekoudji argues that the BIA failed to consider background evidence in the record in denying his claims for withholding of removal and CAT relief. Specifically, Amekoudji asserts that the BIA failed to consider the U.S. State Department and Amnesty International reports he submitted. Although the agency has an obligation to consider all evidence relevant to an applicant’s claim, it need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). Rather, we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Here, because the agency found Amekoudji not credible, the background evidence in the record was largely immaterial. Thus, there is no indication that the agency failed to consider any of the evidence he submitted.2 See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 68 (2d Cir.2002). Accordingly, the agency reasonably denied Amekoudji’s application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); cf. Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006).
II. Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on additional evidence is held to the substantive requirements of a *177motion to reopen. Id. at 156. The mov-ant’s failure to submit previously unavailable material evidence is a proper ground on which the BIA may deny such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Although Amekoudji asserts that the evidence he submitted with the motion to remand was previously unavailable because it was not created until after the May 2007 merits hearing, the regulations define evidence as previously unavailable when it “could not have been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). Here, evidence that Amekoudji had a psychological condition could have been discovered prior to the merits hearing because the doctor’s affidavit indicated that this condition existed since before he came to the United States. Thus, because the BIA reasonably found that Amekoudji failed to present previously unavailable evidence, it did not abuse its discretion in rejecting his motion to remand. See id.; Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.
To the extent Amekoudji argues that the BIA violated his due process rights by failing to consider his doctor’s affidavit, that argument is without merit. First, Amekoudji had no due process right to a discretionary grant of a motion to remand. See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir.2008). Even if he did, it is clear that he had a full and fair opportunity to present his claims where he had two full merits hearings before an IJ and the opportunity to appeal both decisions to the BIA. See Li Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Amekoudji does not challenge the agency's conclusion that he was not credible.
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OPINION
PER CURIAM.
Ronald Seaton appeals from an order of the United States District Court for the District of New Jersey dismissing his ha-beas corpus petition for lack of jurisdiction.
Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, Seaton was convicted of possession with intent to deliver cocaine, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon. He was sentenced to 240 months in prison. We affirmed the judgment of conviction and sentence. United States v. Seaton, 178 Fed.Appx. 172 (3d Cir.2006). Seaton filed a 28 U.S.C. § 2255 motion to vacate, which the sentencing court denied on its merits. United States v. Seaton, Crim. Action No. 04-00049 (E.D. Pa. June 12, 2007). Seaton did not appeal.
On July 31, 2009, while incarcerated at the Federal Correctional Institution at Fairton, New Jersey, Seaton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the District of New Jersey. In the § 2241 petition, he claimed that he was wrongly sentenced as a career criminal offender based on his conviction for simple drug possession, he was sentenced under a sentencing guideline that did not exist, and he was wrongly sentenced to consecutive terms of imprisonment on his firearms charges when he *272should have been exempt from consecutive sentencing under 18 U.S.C. § 924(c)(1)(A). Seaton contended that he should be permitted to pursue habeas relief through § 2241 because § 2255 is inadequate and ineffective to attack his conviction and sentence.
The District Court dismissed the § 2241 petition for lack of jurisdiction, ruling that § 2255 could not be considered ineffective or inadequate to test the legality of Sea-ton’s sentence. Moreover, the court determined that because Seaton’s first § 2255 motion to vacate was denied on its merits, he had to obtain leave from this Court to file a second or successive § 2255 motion in the appropriate court. Seaton timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we review the District Court’s judgment de novo. See Okereke v. United States, 307 F.3d 117, 119 (3d Cir.2002). Motions pursuant to § 2255 “are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Id. at 120. A prisoner may bring such a challenge in a petition under § 2241 only where the remedy provided under § 2255 is inadequate or ineffective to test the legality of the detention. See § 2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). A motion under § 2255 is inadequate or ineffective “only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim.” Cradle, 290 F.3d at 538. “Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255.” Id. at 539.
We agree with the reasons given by the District Court for dismissing the petition. Seaton has not shown that § 2255 is inadequate or ineffective to test the legality of his sentencing claims. See Okereke, 307 F.3d at 120-21. The “safety valve” provided under § 2255 is extremely narrow and has been held to apply in rare circumstances, such as those in which a prisoner has had no prior opportunity to challenge his conviction for a crime later deemed to be non-criminal because of an intervening change in the law. Id. at 120 (citing In re Dorsainvil, 119 F.3d 245, 251 (3d Cir1997)). Such is not the case here. The exception identified in In re Dorsainvil is simply inapplicable, and Seaton may not seek relief under § 2241. His only recourse is to request our permission to file a second or successive § 2255 motion in the sentencing court in the Eastern District of Pennsylvania. See §§ 2255(h) and 2244(b)(3)(A).
Upon thorough review of Seaton’s arguments in support of his appeal, we conclude that his actual innocence claim is meritless.1 Absent any demonstration of new reliable evidence of his factual innocence, Seaton cannot show that it is more likely than not that no reasonable juror would have convicted him. See House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Because the appeal does not present a substantial question, we will summarily af*273firm the judgment of the District Court. See Third Cir. L.A.R. 27.4 and I.O.P. 10.6.
. Seaton's claim alleges that because he is actually innocent of the crimes for which he was convicted, the denial of his § 2241 petition for lack of jurisdiction constitutes a miscarriage of justice.
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OPINION
PER CURIAM.
Appellant Catherine Walsh appeals from the District Court’s dismissal of her civil suit. For the following reasons, we will summarily affirm.
In 2000, Walsh filed a medical malpractice suit in Pennsylvania state court. Judge John A. Bozza presided over the case, and John Quinn and Francis Klemen-sic represented defendants Dennis Borc-zon, M.D., and St. Vincent Health Center. The suit ended when the court granted defendants’ motions for summary judgment. In November 2007, Walsh filed a complaint in the United States District Court for the Western District of Pennsylvania, alleging that Quinn and Klemensic conspired with Bozza to interfere with her due process rights. Acting on Quinn and Klemensic’s motion, the District Court dismissed the case, first determining that it lacked jurisdiction under the Rooker-Feldman doctrine, and second finding that Walsh’s conspiracy claims failed inasmuch as she did not plead sufficient facts to demonstrate that Quinn and Klemensic could be treated as having acted “under color of state law.” Walsh appealed, and we affirmed. Walsh v. Quinn, 327 Fed.Appx. 353 (3d Cir.2009) (per curiam) (unpublished).1
Walsh filed the current action in July 2009, alleging that defendants violated her procedural due process rights under 42 U.S.C. § 1983, 42 U.S.C. § 1985(2)(3), and 42 U.S.C. § 1986. Specifically, Walsh alleged that Appellees conspired with Judge Bozza to dismiss her 2000 medical malpractice suit in order to benefit Judge Bozza’s daughter. According to Walsh, Judge Bozza’s daughter worked for a medical clinic which provided her with prenatal care from 1998 to 2006. The District Court sua sponte dismissed her lawsuit with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Walsh filed a timely motion for reconsideration but the District Court denied it. Walsh then filed a timely notice of appeal.
We have jurisdiction over final orders of the District Court under 28 U.S.C. § 1291. Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is plenary. Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir.2006). In reviewing the District Court’s judgment we “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citations omitted). We summarily affirm an order of the District Court “when ‘no substantial question’ is presented by the appeal.” United States v. Baptiste, 223 F.3d 188, 190 n. 3 (3d Cir.2000) (per curiam) (citation omitted).
We agree with the District Court that the doctrines of claim preclusion and issue preclusion bar Walsh’s claims against Ap-*275pellees. The principle of claim preclusion bars claims that were brought, or could have been brought, in a previous action. In re Mullarkey, 586 F.3d 215, 225 (3d Cir.2008). The doctrine bars a suit where three circumstances are present: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir.1991). “The prerequisites for the application of issue preclusion are satisfied when: 1) the issue sought to be precluded [is] the same as that involved in the prior action; 2) that issue [was] actually litigated; 3) it [was] determined by a final and valid judgment; and 4) the determination [was] essential to the prior judgment.” Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir.2007). Moreover, under the modern doctrine of non-mutual issue preclusion, a litigant may be prevented “from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary.” Id. at 175.
Here, for purposes of both claim and issue preclusion, there was a final judgment on the merits in a prior suit. The District Court dismissed the 2007 action for failure to state a claim under Rule 12(b)(6). See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is a judgment on the merits for res judicata purposes). The second element is satisfied because the previous suit involved claims against Quinn and Klemen-sic. Third, the 2007 suit involved the same cause of action: a conspiracy to deprive Walsh of her procedural due process rights during the earlier state-court litigation. Thus Walsh’s new suit against Quinn and Klemensic was barred.
The result of the 2007 suit also satisfies the prerequisites for application of issue preclusion to the conspiracy claims against Appellees Borczon and Acri. Namely, Walsh is attempting to re-litigate the issue of whether her due process rights were violated during the 2000 medical malpractice suit. Under non-mutual issue preclusion, inasmuch as Walsh had a full and fair opportunity to litigate the conspiracy issue and received a judgment on the merits, that claim is now also barred against Appellees Borczon and Acri as well. In any event, even if these claims were not barred by issue preclusion, we would still affirm as Walsh failed to plead facts which would allow the District Court “to draw the reasonable inference that the defendant[s][are] liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citation omitted).
Walsh has filed a motion to disqualify all Pennsylvania judges and all judges on this Court “due to bias and conflict of interest.” (Appellant’s Motion to Recuse at 1.) As evidence of bias, she points to an opinion this Court issued in 2007 which cites her state court case. There is absolutely no merit to Walsh’s argument that a citation in an unrelated case requires recu-sal of any judge, let alone the judges of this panel, or the entire Court. See 28 U.S.C. § 455(a). Walsh’s motion is denied.
Accordingly, because this appeal presents us with no substantial question, we will summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.
. The opinion affirmed based on the District Court's second finding and not on its Rooker-Feldman holding.
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OPINION
PER CURIAM.
Appellant Michael Piskanin, a state prisoner, filed a civil rights complaint on July 13, 2009 in United States District Court for the Eastern District of Pennsylvania against the Lehigh County Court of Common Pleas and all of its judges, the state *277supreme court and all of its justices, and others, alleging that his prosecution and conviction in Lehigh County at CCP 2072/2004 were the product of a retaliatory conspiracy. Attached to the Complaint, but not separately noted on the district court docket, was a three-page “Motion for Westfall and Other Relief Pending Due Process with Motion for Leave to Proce [sic ] In Forma Pauperis.” In this motion, Piskanin asserted that he was without sufficient funds to mail a copy of his certified account statement to the court and that part of his problem was due to the operation of Act 84.1 Piskanin asked the District Court to take notice of the fact that he had been granted in forma pauperis status in four other civil actions, and grant him in forma pauperis status in the present action on that basis.
The District Court considered Piskanin’s motion to proceed in forma pauperis and denied it without prejudice in an order filed on July 23, 2009 on the ground that he failed to provide sufficient financial information for the court to determine his ability to pay the filing fee, and because he failed to file a certified copy of his inmate account statement as required by 28 U.S.C. § 1915(a)(2). The District Court gave Piskanin 30 days to cure these defects. In response, Piskanin filed two Department of Corrections inmate account statements covering his transactions at the prison from July 3, 2008 through April 9, 2009, and indicating a balance of -$21.58 on April 9, 2009, and what appears to be his personal account statement covering transactions at the prison from July 1, 2009 through August 3, 2009, indicating that his balance had fallen to -$65.73. In addition, he filed a Certification from an Authorized Prison Official in which the certifying official noted that Piskanin had a balance in his inmate account of -$65.73.
In an order entered on August 26, 2009, the District Court denied Piskanin’s motion to proceed in forma pauperis without prejudice to “his right to file a new civil action in which he complies with all applicable filing requirements.” In a footnote, the District Court concluded that Piska-nin’s response to the court’s July 23, 2009 order was inadequate because he filed only a partial account statement and he failed to file a new motion to proceed in forma pauperis.
Piskanin appeals. Our Clerk granted him leave to appeal informa pauperis and advised him that his appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. Piskanin filed in this Court an “emergency motion for relief to preserve the status quo” prior to the Clerk’s Order granting him informa pauperis status.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because it clearly appears that no substantial question is presented by this appeal. We have jurisdiction under 28 U.S.C. § 1291. See Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir.2001) (if plaintiff cannot cure defects or declares his intention to stand on motion, order dismissing without prejudice is ap-pealable); Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976) (same). We review the denial of a motion to proceed in forma pauperis for abuse of discretion. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 337, 69 S.Ct. 85, 93 L.Ed. 43 (1948); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir.1983).
*278The in forma pauperis statute provides that the District Court may authorize the commencement of a civil action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees....” 28 U.S.C. § 1915(a)(1). In addition to submitting this affidavit of poverty, a “prisoner seeking to bring a civil action ... without prepayment of fees ... shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint ..., obtained from the appropriate official of each prison at which the prisoner is or was confined.” Id. at § 1915(a)(2).
The in forma pauperis statute does not authorize the District Court to “take judicial notice” of prior grants of pauper status. Each new lawsuit filed requires an up-to-date affidavit of poverty and inmate account statement for the 6-month period immediately preceding the filing of the complaint. Although Piskanin supplied his current inmate account balance, the statute required him to provide an inmate account statement covering the six-month period from January 13, 2009 to July 13, 2009. He supplied no account information for the period from April 9, 2009 to July 1, 2009. Even if we concluded that the inmate account statements he submitted were substantially complete, Piskanin’s motion to proceed in forma pauperis did not contain the required affidavit of poverty identifying all of his assets. There thus was no way for the District Court to determine whether he is currently financially eligible to proceed without prepayment of the fees, see Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.1976). Having filed by his own admission four prior civil actions, Piskanin is charged with knowing what forms are required and how to request an Application to Proceed In Forma Pauperis from the Clerk of Court.
For the foregoing reasons, we will summarily affirm the order of the District Court denying the application to proceed in forma pauperis. Appellant’s Emergency Motion for Relief to Preserve the Status Quo is denied.
. Act 84 authorizes the Pennsylvania Department of Corrections to make deductions from an inmate’s account for the purpose of collecting costs, fines and restitution or other court-ordered obligations associated with the inmate's prosecution. See Sweatt v. Dep’t of Corrections, 769 A.2d 574 (Pa.Commw.Ct.2001).
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OPINION
WEIS, Circuit Judge.
An indictment filed on April 11, 2006, charged defendant, a chiropractor, with one count of conspiracy, three counts of mail fraud, and three counts of tax evasion. The accusations were based on the defendant’s involvement in a scheme to defraud an insurance company.
The District Court scheduled jury selection and trial for July 31, 2006, and ordered the parties to complete the filing of pretrial motions by June 19, 2006. Between June 2006 and February 2007, however, defendant sought and received twelve extensions of time to file pretrial motions. In late February 2007, defendant retained new counsel and, on March 5, 2007, requested a thirteenth extension of time “to confer with ... counsel and to file pretrial motions and briefs.” The District Court granted the defendant’s motion, extending the time to file pretrial motions to March 19, 2007.
On March 20, 2007, one day after pretrial motions and briefs were due, defendant filed a fourteenth motion seeking additional time to prepare those pleadings. The motion was denied on March 22, 2007.
After each party received one trial continuance, jury selection and trial began on June 18, 2007. Defendant was convicted of all counts, and the District Court later sentenced him to forty-six months imprisonment. Defendant timely appealed.
Defendant here argues that the District Court erred in denying his fourteenth mo*299tion for an extension of time to file pretrial motions and briefs.
We have explained that “the efficient administration of criminal justice” and counsel’s diligence “in requesting the continuance” are among the factors to be considered by a district court deciding a motion for continuance. United States v. Fisher, 10 F.3d 115, 117-18 (3d Cir.1993) (citation omitted). There, we affirmed the denial of such a motion where “the district court had already granted numerous continuances and had put off the scheduled trial date for eight months.” Id. at 118.
Here, defendant received thirteen continuances. The thirteenth was specifically granted to allow newly retained counsel to prepare and file the defendant’s pretrial pleadings. In addition, the motion for a fourteenth enlargement of time was filed after the latest filing deadline had run. Under those circumstances, we cannot say that the District Court acted arbitrarily and abused its discretion by denying defendant another continuance. See United States v. Kikumura, 947 F.2d 72, 78 (3d Cir.1991) (denial of continuance is reviewed for abuse of discretion, which occurs only when district court’s action is “so arbitrary as to violate due process” (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964))).
Accordingly, the judgment of the District Court will be affirmed.
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OPINION
AMBRO, Circuit Judge.
Jacqueline Young appeals the District Court’s grant of summary judgment in *306favor of her former employer, Temple University Hospital, on her claims for hostile work environment, constructive discharge, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. We affirm.1
I.
Jacqueline Young became a Certified Occupational Therapist Assistant (at times referred to by the acronym “COTA”) in 1983, and was hired by Temple University Hospital as a contractor in its Occupational Therapy Department in January 2005. Two months later, Temple hired her as a full-time, union employee. Young’s responsibilities as a COTA included assisting therapists in the evaluation, diagnosis, and treatment of patients.
Young’s direct supervisor was Josette Merkel, the departmental supervisor for the Occupational Therapy Department. Young received favorable performance reviews from Merkel in August 2005 and April 2006. During her August 2005 evaluation, Young discussed with Merkel the possibility of being promoted to “Senior COTA,” a position Young had held at other rehabilitation centers, in light of her many years of experience. Temple did not have such a position. Merkel nonetheless agreed that Young would be qualified should that position exist, and told Young she would “look into” creating it.
In addition to Occupational Therapists and Occupational Therapist Assistants, the Hospital employs “Rehabilitation Aides” whose responsibilities include assisting with patient treatment, obtaining supplies, cleaning up after patient treatment sessions, and transporting patients within the hospital. Young had several conflicts with a Rehabilitation Aide named Roosevelt Brant, Young’s subordinate, whose conduct is the subject of her claims.
Young frequently complained to Merkel that Brant refused to take direction from her. For example, in August 2005 Brant refused Young’s request that he clean dishes after a patient treatment program. Young complained about the incident to Merkel, who orally disciplined Brant and advised him that he was required to take direction from Occupational Therapist Assistants like Young. Nearly a year later, in July 2006, Brant refused Young’s request to retrieve gloves from the supply room, raised his voice, and began “screaming and spitting” in Young’s face. Young reported this incident to Merkel, who again disciplined Brant and advised him that his responsibilities included responding to the requests of Occupational Therapist Assistants.
Young also told Merkel that she believed Brant refused to take direction from her, and treated her with hostility, because she was a woman. Young complained that Brant would frequently “bump” into her and “block [her] passage ... [by] standing] in the doorway so [Young] would have to walk around him.” Young never witnessed Brant treat male employees in a similar manner.
In August 2006, Young met with Richard Lutman, the Hospital’s Director of Labor Relations, to complain about Brant’s behavior. According to Young, Lutman listened to her complaints, assured her that he “would look into it,” and told her he could not comment further because disciplinary matters were confidential. Later that month, Temple suspended Brant for one day as a result of several incidents, including (1) his July 2006 incident with *307Young, (2) his poor quality of work (for example, failing promptly to take patients’ vital signs and clean up after patient treatment sessions), and (3) leaving the department without permission during his shift. Brant appealed his suspension, which Temple upheld.
Brant’s behavior continued after his suspension. In late October 2006, Young complained to Merkel that Brant had blocked her pathway — forcing her to “squeeze thr[ough] a narrow space which made her feel uncomfortable” — and, the next day, had bumped into her with a stretcher. Merkel promptly met individually with Young and Brant to discuss these incidents.
Other female employees raised similar complaints about Brant. In March 2006, Deborah Berutti — at that time a student intern in the Occupational Therapy Department — submitted a written complaint to Merkel. Berutti stated that Brant frequently bumped into her, and often would block the doorway to an office with his chair, wait for Berutti to attempt to leave, and “quickly lean back, banging the chair into [her].” Brant received a “final written warning” from Merkel as a result of his “negative behavior” towards Berutti, which, Merkel noted, included inappropriate physical touching.
Mecca Gethers, an Occupational Therapist, worked as a student intern in the summer of 2005 and was hired as a full-time employee in October 2006. As with Young and Berutti, Brant would frequently bump into Gethers and block doorways when she tried to leave. In January 2007, Gethers submitted a written complaint to Merkel. In her complaint, Gethers stated that, on two or three occasions, Brant hit Gethers in the breast when he bumped into her, and stated that the “situation between Roosevelt and [me] ... has become increasingly uncomfortable and hostile and is making it difficult to perform my job.”
Merkel acknowledged receiving repeated complaints from Young, Berutti, and Gethers about Brant. Merkel also acknowledged that all three expressed a belief that Brant was mistreating them because they were women. Merkel did not see gender “as ... the reason for [Brant’s] behavior toward[s] them,” however, as male employees had made similar complaints about Brant mistreating them and bumping into them. Merkel nonetheless raised with Lutman the possibility that Brant be “moved out of [the] department.” According to Merkel, however, Lutman decided they would continue to pursue “progressive discipline” — as apparently provided for by Temple’s collective bargaining agreement with Brant’s union — that ultimately could lead to Brant’s termination.
At the end of December 2006, Young accepted an employment offer from a previous employer at a salary of $38 per hour — $8 more than she was being paid by Temple. She resigned from Temple on January 26, 2007. Young told Merkel that she was resigning because she had “been harassed [for] too long” by Brant, and that “[n]o one was looking at the situation and [her] concerns.” Young was also disappointed that the “Senior COTA” position had never been created, and believed that Merkel had stopped pursuing the matter because of Young’s frequent complaints against Brant.
Brant was terminated on February 2, 2007. According to Merkel’s records, the decision to terminate Brant was made immediately following Gethers’ January 2007 complaint. Brant appealed his termination, which was upheld in April 2007. After Brant was terminated, Merkel unconditionally offered Young her job back. She declined the offer.
*308Young filed suit in the District Court for the Eastern District of Pennsylvania, asserting a compound hostile work environment and constructive discharge claim and a retaliation claim under both Title VII, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. The District Court granted summary judgment in favor of Temple on all claims, and Young timely appealed.
II.
We review a grant of summary judgment de novo, using the same standards as the District Court. Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir.2007). We view the facts in the light most favorable to the nonmoving party. Id.; see also Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). A party is entitled to summary judgment only “if the pleadings, the discovery and disclosure materials on file, and any affidavits[,] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
III.
Young argues that the District Court erred in granting summary judgment on her compound hostile work environment and constructive discharge claim and her retaliation claim.2 We address each claim in turn.
A. Hostile Work Environment and Constructive Discharge
To prove a prima facie case of a hostile work environment, a plaintiff must establish five elements: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) it detrimentally affected her; (4) it would detrimentally affect a reasonable person in like circumstances; and (5) there is a basis for employer liability. Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir.2009); Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.2006), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). To establish a constructive discharge as a result of a hostile work environment, a plaintiff must further prove that the employer “ ‘knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.’ ” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir.1996) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984)).
In the co-worker harassment context, a plaintiff may establish employer liability on a theory of “negligent failure to discipline or fire, or failure to take remedial action upon notice of harassment.” Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir.1997) (quoting Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir.1994)). The plaintiff must show that “management knew or should have known about the harassment, but failed to take prompt and adequate remedial action.” Jensen, 435 F.3d at 453 (internal quotation marks omitted). Even if not effective, an employer’s remedial action is adequate if it is “reasonably calculated” to end the harassment. Knabe, 114 F.3d at 412-13.
We agree with the District Court that Young failed to establish a basis for em*309ployer liability.3 It is undisputed that, following each complaint, Merkel promptly disciplined Brant for his behavior toward Young and other employees, which included oral warnings, written warnings, a suspension, and, ultimately, termination. The only additional remedial action that Young complains Temple failed to take was transferring Brant out of the Occupational Therapy Department. Temple’s failure to take that step, however, does not by itself render its remedial actions inadequate. See id. at 414 (holding that employer’s issuing of a warning — notwithstanding the plaintiffs belief that the harassing employee should have been transferred — was an adequate remedial measure, as “an employee cannot dictate that the employer select a certain remedial action”). Indeed, rather than transferring Brant, Temple sought to take the necessary steps to terminate him, thus completely removing him from the Hospital (and all of its female employees).4 We agree that Temple’s actions were promptly taken and “reasonably calculated” to end the harassment.
Young emphasizes that although Merkel received complaints from several female employees about Brant, she did not personally believe that Brant was mistreating them because of their gender. It is also unclear from the record whether Merkel, in disciplining Brant on various occasions, discussed specifically the allegations of gender discrimination with him (as opposed to disciplining him for specific incidents of harassing behavior). These gaps in the record do not compel a contrary result, however. The question is whether Temple’s remedial actions, not its investigation, were adequate. See id. at 412 (“Even if a company’s investigation into complaints of sexual harassment is lacking, the employer cannot be held liable for the hostile work environment created by an employee ... unless the remedial action taken subsequent to the investigation is also lacking.”). Because we conclude that Temple took prompt and adequate remedial actions to address Brant’s harassment, Young’s hostile work environment and constructive discharge claims fail.5
*310
B. Retaliation
To establish a prima facie claim of retaliation, a plaintiff must prove that: (1) she engaged in protected conduct; (2) her employer took an adverse employment action against her; and (3) a causal link exists between her protected conduct and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.2006). An “adverse employment action” under Title VII is an action by an employer that is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997)). “A tangible employment action [is] also defined by reference to a nonexclusive list of possible actions: ‘hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Suders v. Easton, 325 F.3d 432, 434 (3d Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)), rev’d on other grounds sub nom. Penn. State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
Young argues that the District Court erred in concluding that Temple’s failure to promote her to the position of “Senior COTA” did not constitute an adverse employment action.6 We disagree. This position did not exist when Young requested the promotion, and no one at Temple promised her such a position would (or could) be created. Young’s subjective expectation that Temple would create an entirely new position for her (and her alone) cannot support a prima facie case of retaliation. Cf. Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1137 (10th Cir.2004) (“An employer’s failure to promote a plaintiff to a non-existent position is not enough to support a presumption of intentional ... discrimination.”).
Even if Temple’s failure to create the Senior COTA position and promote Young to that position could be considered an adverse employment action, we agree with the District Court that Young failed to establish a causal link between her complaints to Merkel and Temple’s failure to create the position. Young has presented no evidence to substantiate her belief that Merkel came to believe she was “creating ... disarray” in the department by complaining about Brant, nor has she presented any evidence suggesting a temporal link between her complaints and Merkel’s alleged decision to stop exploring the possible creation of the position. See Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir.2003) (noting that, in the absence of a suggestive temporal link, a plaintiff must come forward with other evidence suggestive of retaliatory animus).
H* H* H* H»
*311Based on the foregoing, we affirm the judgment of the District Court.
. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
. "The proper analysis under Tide VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably.” Weston v. Pennsylvania, 251 F.3d 420, 425 n. 3 (3d Cir.2001).
. Before the District Court, Temple argued that Young could not establish the first, second, or fifth elements of her prima facie case. As to the first element, the Court reasoned that although Young "could not point to anything Brant did which overtly related to her sex,” the fact that two other female employees also complained that Brant was harassing them because of their gender supported an inference of discrimination. On the second element, the Court noted that Young had testified that “problems with Brant happened all the time,” and determined that Brant’s behavior went beyond mere offensive utterances and "into the realm of physically threatening or humiliating." Accordingly, the Court found that Young had established the first two elements of her prima facie case.
. In granting summary judgment for Temple on Young’s hostile work environment claim, the District Court stated that it could not "see what more Temple could have reasonably done [to discipline Brant] without ... running afoul of the collective bargaining agreement.” On appeal, Young appears to argue that the District Court erroneously determined that Temple was shielded from liability under Title VII because it was abiding by the disciplinary process contemplated in the collective bargaining agreement.
We do not believe the District Court intended to suggest that Temple could not be held liable for Brant’s actions, however severe, simply because it had disciplined him in accordance with the collective bargaining agreement. Moreover, there is no evidence that Merkel or others felt constrained by the terms of the collective bargaining agreement from taking remedial steps they otherwise believed were necessary. Indeed, Merkel confirmed in her deposition testimony that she believed the collective bargaining agreement had no effect on her responsibility and authority to investigate discrimination complaints and impose appropriate discipline.
.Even assuming Young had established a basis for employer liability, we would still affirm the District Court’s grant of summary judg*310ment on her constructive discharge claim because Temple did not "knowingly permit[] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Aman, 85 F.3d at 1084 (quoting Goss, 747 F.2d at 888); see also Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n. 4 (3d Cir.2006) (a constructive discharge claim requires “a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment”) (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir.1992)).
. Young also argues that her constructive discharge was an adverse employment action for purposes of her retaliation claim. Because Young has not established a prima facie case of a hostile work environment or constructive discharge, however, this argument necessarily fails.
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OPINION
McKEE, Circuit Judge.
Benjamin Rodriguez challenges the district court’s ruling that he was not eligible for an additional two-point reduction in his base offense level because of his classification as a career offender. For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties, we need not set forth the factual or procedural history in detail. After entering into a plea agreement, Rodriguez argued that he was entitled to a two-point minor role reduction pursuant to U.S.S.G. § 3B1.1 because he had not been an “active player,” and because he “didn’t make any money [from the drug transaction].” App. 14, 17. The government opposed the request because the applicable Guidelines sentencing range was driven by his career offender status under § 4B1.1 of the Guidelines. The district court acknowledged Rodriguez’s minor role in the instant offense, but agreed that § 4B1.1 precluded the two-point reduction Rodriguez was requesting.
The district court accepted the revised PSR, with its recommended three-point *312reduction for acceptance of responsibility. The court also granted the government’s § 5K1.1 motion which reduced Rodriguez’s base offense level by an additional two levels, from 34 to 32. When combined with a criminal history category of VI, this resulted in an advisory sentencing range of 210 to 262 months. The court imposed a sentence of 210 months because of Rodriguez’s relatively minor role, and the government’s recommendation. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Our review of the district court’s interpretation and application of the Guidelines is plenary. See United States v. DeJesus, 347 F.3d 500, 505 (3d Cir.2003).
III.
As noted at the outset, Rodriguez argues that the district court erred in concluding that his career offender status made him ineligible for an additional two-level reduction in base offense level under § 3B1.1 of the Guidelines. The argument is foreclosed by our decision in United States v. Johnson, 155 F.3d 682 (3d Cir.1998). There, we held that “minor role downward adjustments do not apply to career offenders.” Id. at 685. Johnson remains controlling precedent in this circuit, and cannot be overruled by an appellate panel. See 3d Cir. IOP 9.1 (“Court en banc consideration is required to [overrule precedential opinions].”).
Although Rodriguez acknowledges the holding in Johnson, he argues that Johnson should be reconsidered in light of the Supreme Court’s holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Court invalidated 18 U.S.C. § 3553(b)(1), which made mandatory the imposition of a sentence within the calculated Guidelines range. See 543 U.S. at 259, 125 S.Ct. 738. Rodriguez asserts that since the Guidelines are now advisory, the district court should now also have the discretion to apply the additional two-point reduction for minor participation regardless of Rodriguez’s career offender status. Rodriguez’s reliance on Booker is misplaced.
Following Booker, we held that district courts are to follow a three-step procedure in calculating the appropriate sentence for a defendant. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). The steps are:
(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must “formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation and take[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.”
(3) Finally, they are required to “exercise[ ] [their] discretion by considering the relevant [§ 3553(a) ] factors” in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.
Id. (internal citations omitted) (alterations in original). Rodriguez objects to the district court’s interpretation of the Guidelines in step two. Our case law makes clear that Booker does not apply to the second step of the Guidelines calculation. See United States v. Grier, 585 F.3d 138, 142 (3d Cir.2009) (holding that Booker only gave judges discretion at step three under *313§ 3553(a)). The rule of Booker is not violated by the district court’s ruling here because even though the court correctly concluded that Rodriguez was not eligible for the reduction he sought, the court retained the discretion to impose a sentence below the Guideline range that resulted from the court’s Guideline calculation. The district court was also correct in “tak[ing] into account [this circuit’s] pre-Booker case law,” Gunter, 462 F.3d at 247, in ruling that the minor role adjustment did not apply to career offenders, see Johnson, 155 F.3d at 685. Thus, we conclude that the district court did not err in imposing this sentence and denying the additional two-point downward adjustment in calculating his Guidelines base offense level.
IV.
For the foregoing reasons, we will affirm the decision of the district court.
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OPINION
GARTH, Circuit Judge:
Appellant Alice Louise Smith (“Smith”) appeals from the District Court’s grant of summary judgment in favor of appellee, Michael J. Astrue, Commissioner of Social Security (“Commissioner”), and against Smith. The District Court affirmed the Commissioner’s denial of Smith’s claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). We will affirm.
I.
Smith was 38 years old at the time of the hearing that resulted in the denial of her claims for SSI and DIB that gave rise to this appeal. She is married and has four children, who at the time of the hearing were ages 16, 15, 14, and 3. Smith graduated from high school and also attended some computer training classes at a vocational school. She has worked as a school bus driver, a seamstress, and a nurse’s aide. Smith last worked on December 4, 2003.
On August 22, 2005, Smith applied for DIB and SSI under titles II and XVI, respectively, of the Social Security Act (“the Act”), codified at 42 U.S.C. §§ 401-03 and 1381-1383(f), respectively. In her application, Smith alleged disability as of December 5, 2003, due to degenerative disk disease and gastroesophogeal reflux disease (“GERD”).
After Smith’s claims were denied initially and upon reconsideration, Smith filed a request for an administrative hearing. On August 28, 2007, an administrative law judge (“ALJ”) conducted a hearing at which Smith, who was represented by counsel, and a vocational expert appeared and testified. On January 29, 2008, the ALJ issued a determination that Smith was not disabled from December 5, 2003 through the date of the decision.
The ALJ found that although Smith did suffer from “severe impairments,” Tr. at 14, she was nonetheless capable performing “light work,” Tr. at 15, and thus concluded that, considering Smith’s age, edu*315cation, work experience, and residual functional capacity, “there are jobs that exist in significant numbers in the national economy that [Smith] can perform.” Tr. at 19.
Smith subsequently requested review of the ALJ’s determination, and on February 28, 2008, the Appeals Council of the Social Security Administration denied Smith’s request for review, thereby rendering the ALJ’s determination the final determination of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481 (2009).
Smith then appealed to the District Court for the Western District of Pennsylvania, and both Smith and the Commissioner filed motions for summary judgment. On September 25, 2008, 2008 WL 4412236, a Magistrate Judge found that the ALJ’s determination that Smith is not disabled for DIB and SSI purposes was supported by substantial evidence. On that basis, the District Court denied Smith’s motion for summary judgment, granted the Commissioner’s motion for summary judgment, and affirmed the Commissioner’s determination. Memorandum Opinion and Order, Smith v. Commissioner of Social Sec., No. 08-581, 2008 WL 4412236 (W.D.Pa. Sept. 25, 2008).
Smith timely appealed, arguing that the District Court erred in finding that the ALJ’s decision was supported by substantial evidence, given that: (1) the ALJ did not accord controlling weight to the medical opinion of Smith’s treating physician; and (2) the ALJ failed to properly credit Smith’s complaints of pain.
II.
The District Court had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
Federal court jurisdiction in cases challenging the decision of the Commissioner has been expressly limited by Congress pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Tobak v. Apfel, 195 F.3d 183, 186 (3d Cir.1999). These statutes provide that our review of the Commissioner’s decision is limited to a determination of whether substantial evidence supports the Commissioner’s findings. See Jones v. Sullivan, 954 F.2d 125 (3d Cir.1991). Substantial evidence is “more than a mere scintilla, but may be somewhat less than a preponderance.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005). “It means such relevant evidence as a reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995)).
III.
A
Smith argues that the District Court erred in finding that the ALJ’s determination was based on substantial evidence, given that the ALJ failed to accord controlling weight to the medical report of Smith’s treating physician, Dr. Mamoon A1 Rasheed, M.D., dated August 23, 2007.
The report states that: (1) Smith is only able sit, stand, and walk for one hour each day; (2) Smith is completely unable to bend, stoop, crawl, climb, balance, crouch, or kneel; (3) Smith requires “[c]omplete freedom to rest frequently throughout the day”; (4) Smith must “lie down, or sit on a recliner for a substantial period of time during the day”; and (5) Smith suffers from conditions that are of a permanent nature. Tr. at 208-10. As noted by the ALJ, “[Dr. Rasheed’s] conclusions that the claimant can do no postural activity would indicate that the claimant is essentially bedridden.” Tr. at 18.
*316Smith argues that the ALJ erred in failing to attribute controlling weight to Dr. Rasheed’s opinion, given that he is Smith’s treating physician. However, a treating physician’s opinion is accorded controlling weight only if the ALJ finds that the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence [in the] case record.” 20 C.F.R. § 404.1527(d)(2). See also Jones, 954 F.2d at 128-29. In this case, Dr. Rasheed’s opinion, as set forth in his report, is contradicted by several pieces of evidence in the record.
First, the opinion of Dr. Nabil Jabbour, M.D., who conducted a consultative examination of Smith on April 5, 2006, and found that Smith’s joints had a “full range of motion without swelling or tenderness,” Tr. at 188, that she was “able to squat” and “walk on her toes and heels,” that “[t]here was no limitation on function for sitting, standing, walking, lifting or grasping,” and that Smith’s “gait was normal.” Tr. at 189. While Dr. Jabbour did conclude that Smith suffers from lower back pain and GERD, his findings with regard to Smith’s ability to perform basic functions such as sitting, standing, and walking are directly at-odds with those expressed by Dr. Rasheed in his report.
Second, Dr. Rasheed’s treatment notes reveal: On June 13, 2005, Dr. Rasheed noted that Smith had a “[g]ood range of motion” in both her extremities and her musculoskeletal system. Tr. at 173. On September 20, 2005, Dr. Rasheed noted that, other than a cough, Smith is “doing OK,” with no mention of any back pain. Tr. at 171. Additionally, on November 27, 2006, Dr. Rasheed found Smith’s straight-leg raise and cross-straight leg raise test to be normal. Tr. at 202.
Third, Smith testified that she was the primary caregiver for her youngest child, who was born in September 2004. Tr. at 36, 40. Though Smith noted that her children assist with childcare over the summers, and that her husband had been helping her since he was laid-off, id., even a highly conservative calculation yields a period of at least two full years during which Smith was the sole caregiver for her child.1 This fact is very difficult to reconcile with the virtually bed-ridden individual described in the report.
Since, as set forth above, Dr. Rasheed’s medical opinion is contradicted by several pieces of evidence in the record and also contains internal inconsistencies, it is not entitled to the level of deference otherwise accorded to a treating physician’s opinion. See 20 C.F.R. § 404.1527(d)(2); Jones, 954 F.2d at 128-29. In addition, checklist forms such as Dr. Rasheed’s report, which require only that the completing physician “check a box or fill in a blank,” rather than provide a substantive basis for the conclusions stated, are considered “weak evidence at best” in the context of a disability analysis. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.1993).2
*317Based on the foregoing, we conclude that the ALJ did not err in failing to accord controlling weight to the opinion of Smith’s treating physician.
B.
Smith argues that the ALJ erred in failing to properly credit Smith’s complaints of pain. Smith stated that her pain was “about an eight” on a scale of one to ten, with ten being “the worst possible pain,” Tr. at 41, and that the severity and constant nature of her pain precluded her from being able to work. Tr. at 123-26. The ALJ determined that Smith’s statements regarding the intensity, persistence, and limiting effects of her pain were “not entirely credible, and only fair at best.” Tr. at 17.
20 C.F.R. § 404.1529 dictates the manner in which an ALJ is to evaluate a claimant’s reports of debilitating pain. Under the regulation, the ALJ considers the extent to which the reported pain “can reasonably accepted as consistent with the objective medical evidence and other evidence.” Id. § 404.1529(a). Some of the factors that should be considered when evaluating claims regarding the nature and severity of the pain include the claimant’s daily activities, the type of medication taken to alleviate the pain, and the treatment received for the pain. Id. § 404.1529(c).
In terms of Smith’s daily activities, the fact that she was able to act as the sole caretaker of her young child for at least two full years, see supra n. 1, indicates a lesser level of pain than what is claimed.3 The same is true with regard to the medication taken by Smith to alleviate her pain as well as the other treatments prescribed. For a large portion of the period for which Smith claims disability, Smith’s pain was treated with over-the-counter pain relievers, see Tr. at 167, 173, 207, rather than with stronger, narcotic-based medication that one would expect to be necessary if Smith’s pain was truly as debilitating as was claimed.4 In addition, at Smith’s June 23, 2006 visit with Dr. Rasheed, he advised her to engage in aerobic exercise to alleviate her back pain, Tr. at 207, — a seemingly incongruous recommendation for someone experiencing the intense and overpowering pain claimed by Smith.
While we have held, as noted by Smith, Br. of Appellant at 25-26, that an ALJ is obligated to give “serious consideration” to a claimant’s subjective complaints, Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir.2002), this does not mean that the ALJ must fully credit a claimant’s testimony regarding her pain. See id. Rather, it *318simply means that the ALJ must take care to address such evidence in the course of his findings. Id. The ALJ in this case specifically addressed Smith’s claims regarding pain, and concluded, based upon the medical and other evidence in the record, that the claims were not entitled to full credit. Tr. at 17-18.
Substantial evidence in the record indicates that the pain suffered by Smith during the period of her claim was not as intense or debilitating as she claims. Thus, the ALJ did not err in failing to fully credit Smith’s complaints of pain.
IV.
The ALJ did not err in failing to accord controlling weight to the opinion of Smith’s treating physician, nor did he err in failing to fully credit Smith’s complaints of pain. The ALJ’s determination was based on substantial record evidence. Therefore, the District Court did not err in granting the Commissioner’s motion for summary judgment. We will affirm its judgment.
. Smith’s husband was unemployed as of March 23, 2007. Tr. at 29. It is reasonable to assume that Smith's three oldest children, who are of school-age, Tr. at 35, were only available to assist Smith with childcare for a maximum of three months during each calendar year (i.e., June, July, and August). Since Smith's youngest child was born on September 18, 2004, Tr. at 36, even a conservative estimate reveals that Smith acted as the sole caretaker for her youngest child for a minimum of 24 months — during which time, according to her claim, she was completely disabled and unable to perform any type of work.
. In contrast to the wholly conclusory nature of Dr. Rasheed’s opinion as set forth in his report, Dr. Jabbour’s opinion is buttressed by *317a recitation of detailed clinical findings. Compare Tr. at 208-11 with Tr. at 187-89.
. Smith argues that Gentle v. Barnhart, 430 F.3d 865 (7th Cir.2005), "flatly reject[s] ... the argument that caring for an infant [i]s evidence of an ability to perform full time competitive work.” Brief of Appellant, Smith v. Astrue, No. 08-4634 (3d Cir. Feb. 17, 2009). Gentle is easily distinguishable, however, because there, the claimant cared for her child "with the aid of her sister, a neighbor, and another woman," 430 F.3d at 867, whereas here Smith was the sole caretaker for a period of at least two full years. See supra n. 1.
. Smith was prescribed OxyContin only after an October 27, 2006 visit to Dr. Rasheed. Tr. at 203. This was a marked contrast to Dr. Rasheed’s assessment of Smith's need for pain alleviation during her June 23, 2006 visit, when he prescribed only Motrin, and also advised her to engage in aerobic exercises and swimming. Tr. at 207. While Smith does not point to any particular incident between June and October 2006 that would have resulted in an increase in her pain to the point that narcotic-based pain medication was necessary, the Commissioner notes that Smith’s request for an administrative hearing was made during this period, on August 15, 2006. Brief of Appellee, Smith v. Astrue, No. 08-4634 (3d Cir. Mar. 13, 2009) at 27 (citing Tr. at 69).
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OPINION
PER CURIAM.
Petitioner Ai Fang Chen, a citizen of China, seeks review of a final order issued by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for review.
This matter has an extended history. In February 2000, Chen entered the United States without being admitted or paroled. In December 2000, she filed an asylum application on the basis of her political opinion, alleging that she and her husband had been persecuted by the Chinese government because they had violated the family planning policy, having had two children in China. Chen was placed into removal proceedings as an alien present in the United States without being admitted or paroled. She conceded re-movability but pursued her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
In February 2002 and December 2008, Chen testified before the Immigration Judge (“IJ”) as to the following account of her claim. Chen was born in Fujian Province, and in 1989, she and her husband were married in a traditional ceremony. They did not register the marriage because they were not of legal age to marry. After their first child was born in 1990, family planning officials forced Chen to have an IUD inserted. Chen wanted to have more children, so she went to a private doctor to have the IUD removed. She became pregnant, and the family planning officials came to her home and ordered her to have an abortion and pay a fine. Instead, she and her husband went into hiding at her parents’ house, while their daughter stayed with her mother-in-law. When her husband went back to their town to visit their daughter, family planning officials confronted him and instructed him to bring Chen for an abortion. Her husband escaped and left China for the United States. Their second child was born in 1991, and Chen was arrested at home and was taken to the hospital for sterilization. However, the doctor refused to sterilize her because of a skin disease. Instead, another IUD was inserted and a fine levied for failure to have a marriage certificate and for lack of permission to have a child. The fine was paid, and Chen was released. She left China in 2000. The couple’s third child was born in the United States in 2001.
*320Chen stated that she does not wish to return to China because she fears being forcibly sterilized. At the continued hearing, additional documents were submitted concerning Chen’s medical records and the asylum proceedings concerning Chen’s husband, whose claim had been denied. When asked why her medical records did not show a history of a skin disease, she stated that she thought it was an infection and the doctor was concerned about making an incision. When asked about the differences in several details of her husband’s version of their claim versus her own, she maintained her account of the events. Chen admitted that she did not have the IUD removed after she arrived in the United States and that it was still in place when she became pregnant with her third child. She explained that she owed much money and that she had never thought about having it removed.
On December 3, 2003, the IJ found that Chen had not shown that wearing her second IUD was involuntary because she had not had it removed during the years-long period after her husband left China or after she came to the United States. The IJ noted the inconsistencies between Chen’s testimony and her husband’s testimony in his own proceedings and further noted that Chen’s supporting documentation had not been authenticated. The IJ found that, even if Chen were credible, she had not shown past persecution on asylum grounds and that Chen had not met her burden of proof on her future persecution or CAT claims. Accordingly, the IJ denied Chen’s applications for relief and ordered her removal to China. Chen appealed to the BIA, arguing that she was credible and had met her burden of proof on her asylum and withholding claims. In April 2005, the BIA affirmed the IJ’s decision, without opinion.
Chen filed a timely motion to reopen based on new evidence concerning her fear of persecution by family planning officials in China in light of her having had a third child while in the United States. In October 2005, the BIA granted the motion to reopen, noting that Chen’s evidence suggested that couples returning to China after having given birth to unauthorized children may be subject to China’s coercive population control program.
On remand, Chen submitted additional evidence to the IJ and gave additional testimony at a November 28, 2006 hearing. She stated that she fears sterilization upon return to China as a violator of the family planning policy, based upon information provided by her attorney and others from where she lived. She later stated that she did not know anyone who had given birth in the United States and returned to China to her town. At the close of the hearing, the IJ again denied relief. The IJ found, among other things, that the evidence contained conflicting information, and that there was no evidence of any harm to couples returning to China with United States-born children. The IJ also noted that Chen’s third child was alive at the time of the prior hearing and already had been considered in the previous decision, and the new evidence did not persuade the IJ to alter the December 3, 2003 decision. The IJ again denied asylum, withholding, and CAT relief, but certified the ease to the BIA to address whether Chen was entitled to relief based on possible sterilization or forced abortion concerning a future child.
Chen appealed to the BIA and submitted additional evidence in support of her position. On September 5, 2008, the BIA dismissed the appeal, noting its agreement with the IJ’s conclusions that Chen had not met her burden of proof on her claims. The BIA found that to the extent that *321Chen claimed fear of persecution because she will continue to have children in China, the claim was speculative. In addition, the BIA noted that it would not consider new evidence on appeal, citing 8 C.F.R. § 1003. l(d)(3)(iv). Further, to the extent that Chen requested a remand based on the new evidence, the BIA found that remanding the case was not warranted. In so finding, the BIA stated that Chen failed to show that the evidence would change her case’s outcome, and noted that one of the documents had not been authenticated.
Chen timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a) regarding the final removal order. Though much of Chen’s brief focuses on the IJ’s decision, “[wjhere, as here, the BIA issues a decision on the merits and not simply a summary affirmance, we review the BIA’s, and not the IJ’s, decision.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Whether an applicant has demonstrated a well-founded fear of future persecution is a factual determination reviewed under the substantial evidence standard. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005). We must uphold the BIA’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (citations omitted). We have jurisdiction over the BIA’s denial of a remand as well, and we review that decision for an abuse of discretion. See Korytnyuk v. Ashcroft, 396 F.3d 272, 282-83 (3d Cir.2005).
At the outset, we note that Chen’s brief contains statements of law concerning withholding of removal and CAT relief, as well as a paragraph heading that the agency erred in denying the various forms of relief. However, the arguments in her brief are limited to her having established a well founded fear of future persecution under the asylum standard. Because no argument is presented regarding withholding or CAT relief, we deem the issues waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). Also we note that the government contends Chen has waived any challenge to the BIA’s decision because her argument concerns only the procedural manner in which the BIA reached its decision without challenging the correctness of the BIA’s ultimate conclusion in her case. We reject this argument. As the government acknowledges, Chen does challenge the IJ’s conclusions in her brief, and in so doing, she makes a substantive challenge to the BIA’s agreement and affirmance of the IJ’s conclusions.
We now turn to Chen’s arguments. Chen argues that in reviewing the IJ’s factual determination, the BIA relied almost entirely on its prior decisions in Matter of S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007); Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007); and Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006); and did not conduct an individualized review. Although the BIA cited those decisions, the BIA also noted the lack of any evidence before it that the Chinese government is aware of the birth of Chen’s third child in the United States (upon which her motion to reopen was based) and is interested in persecuting her. We thus distinguish the circumstances here from our decision in Zheng v. Attorney General, 549 F.3d 260, 269-71 (3d Cir.2008), where we vacated the denial of motions to reopen based on the BIA’s failure to discuss the evidentiary record. Chen points to the portions of the IJ’s decision relating the evidence of reported forced sterilizations in Fujian Province and of the policy that returning Chinese nationals with children born in the United States would not be exempt from the one-child family planning laws. However, Chen points to no evidence of forced *322sterilizations of couples returning to China with children born in the United States such that would compel us to disturb the BIA’s finding on her asylum claim. Thus, we conclude that the BIA’s decision to affirm the IJ’s finding that Chen had not met her burden of persuasion concerning her asylum claim is supported by substantial evidence.
Chen also contends that the BIA erred in refusing to consider previously-unavailable, material evidence submitted in support of her appeal, namely, a document titled “Notice of the Family Planning Policy of Fujian Province,” dated November 23, 2006, issued by the Family Planning Office in Tianjiang Town, Mawei District, Fuzhou City.1 Chen also contends that the BIA erred in refusing to remand the matter to the IJ for consideration of that evidence. Chen cites Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004), and asserts that the BIA erred in rejecting the evidence solely because the document had not been authenticated. First, we discern no error in the BIA’s refusal to consider the new evidence on appeal, given that the BIA generally does not engage in factfind-ing in deciding appeals. See 8 C.F.R. § 1003.1(d)(3)(iv). Second, although the BIA noted the lack of authentication of the Notice, the BIA did not strictly apply the authentication standard of 8 C.F.R. § 287.6 and exclude the document from consideration solely on that basis, as in Liu. Rather, the BIA found that remand was not warranted because Chen had failed to establish that her new evidence would change her case’s outcome. We conclude that the BIA did not abuse its discretion in denying a remand to the IJ.
Based on the foregoing, we will deny the petition for review.
. The record indicates that Chen was a resident of that locality before she left China. The translation of the Notice indicates that the town strictly enforces the family planning policies of Fujian Province, and that Chinese citizens who have two children "should be sterilized.” The Notice further indicates that the policy applies to Chinese citizens who return to China and do not have proper foreign status who return to China, with exceptions not relevant here. (A.R.123.)
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OPINION
PER CURIAM.
Lian Ying Zhang petitions for review of the October 27, 2008 decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny her petition for review.
*326Zhang, a native and citizen^ of China, entered the United States without inspection in April 2000. In 2005, when she was pregnant with her second child, Zhang applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), claiming that she feared returning to China because she had a Chinese son (now in his twenties who remained in China) and would soon have a second child in violation of China’s one-child family planning policies.1 Zhang filed a tome of documents in support of her claim, including birth certificates for her children, Fujian Province Birth Control Regulations and Fujian Province administrative opinions and decisions from 2008 regarding the treatment of foreign-born children for family planning purposes in the cities of Changle and Fuzhou in Fujian Province, numerous articles, affidavits (including the affidavit of demographer Dr. John Aird), transcripts of Congressional testimony, the State Department’s 2002 “Travel Tips,” and the State Department Country Report on Human Rights Practices in China for 2005 (“2005 Country Report”).
Following a hearing, the IJ denied all relief, finding that Zhang failed to demonstrate that she held a well-founded fear of persecution. Specifically, the IJ found that although Zhang had established through testimony, affidavits, and other evidence that she had a genuine subjective fear of persecution upon her return to China, she failed to show that she had an objectively reasonable fear that she would be forcibly sterilized. The IJ noted Zhang’s evidence purporting to show that she would have to register her American-born child in China, including the affidavit of one individual, unknown to Zhang personally, who returned to Fujian Province with two foreign-born children and was forced to undergo sterilization. Relying on the State Department’s Profile of Asylum Claims for China for 2005 (“2005 Profile”), and an opinion letter dated January 7, 2007, from Julieta Vails Noyes, Director of the State Department’s Office of Multilateral and Global Affairs (“2007 Opinion Letter”), the IJ decided that “the matter of whether [Zhang’s] U.S. child will even be counted against her total for family planning purposes is, at best, disputed.” The IJ was unpersuaded that Zhang would be singled out for persecution if she returned to China. The IJ found the affidavits of Zhang’s cousins, attesting that they had been forcibly sterilized after having two children, to be largely irrelevant because these individuals did not have foreign-bom children.
The IJ also found that Zhang failed to show that Fujian Province engaged in a pattern or practice of forced sterilization in cases like her own. The IJ found the bulk of Zhang’s documentary evidence to be unpersuasive because it was outdated, addressed circumstances in a different province, had been discredited (as in the case of the Aird Affidavit), or because it did not tend to show that Fujian Province engaged in mandatory forced sterilization or abortion as opposed to assessing “social compensation fees” against violators of family planning policy. While the IJ acknowledged that the State Department’s 2002 “Travel Tips” document stated that American-born children would be treated as Chinese citizens if their Chinese parents had no immigration status in the United States, she noted that the document did not address specifically whether the children would be “counted” against the parents for family planning purposes. Relying again on the 2005 Profile and the 2007 Opinion Letter, the IJ found that, in any *327event, the record evidence “pointed to a marked decrease in enforcement of the family planning policy through forced abortion and/or sterilization and does not indicate that there is pattern or practice of sterilizing individuals who return to China after having children in the United States.” (IJ Opinion, JA-15.)2 The BIA adopted and affirmed the IJ’s decision. Zhang filed this timely petition for review.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C. § 1252(a). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review both decisions under a substantial evidence standard. See Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001). Under this deferential standard of review, we will uphold the findings of the BIA “unless the evidence not only supports a contrary conclusion, but compels it.” Id. at 484.
To qualify for asylum, an applicant must demonstrate, among other things, a well-founded fear of persecution based on both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). To establish eligibility for withholding of removal, an applicant must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993) (quoting INS v. Stevie, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)).
In her petition for review, Zhang claims that the IJ mischaracterized the evidence, which, Zhang asserts, established that she would be subject to forced sterilization if she returned to China with her American-born child. We disagree. According to the 2005 Profile and the 2007 Opinion Letter upon which the IJ and the BIA relied, birth planning policy in China is established nationally; the enforcement of the policy is left to the provinces and local villages and can vary widely from province to province and from village to village. (See JA-1366; 1410.) The State Department acknowledges that forced sterilization and abortions, which violate national law, continue to be documented.3 (JA at 1367-68; 1410.) As for enforcement of birth planning policy in Fujian Province, however, although “public and other pressure” may be used to encourage compliance with birth planning laws, United States officials “did not find any cases of physical force employed in connection with abortion or sterilization” in the last ten years. (2005 Profile, JA at 1370; 2007 Opinion Letter, JA at 1410 (“Regarding the alleged existence of an official government policy mandating the sterilization of one partner of couples that have given birth to two children, U.S. officials in China are not aware of such a policy at either the national or provincial level”)). In sum, we conclude that the IJ’s and BIA’s decisions are supported by substantial evidence.
Zhang also protests that the assessment of harsh and exorbitant social compensation fees alone constitutes persecution in her case. The BIA implicitly rejected *328Zhang’s argument when it concluded that she failed to show a well-founded fear of persecution and affirmed the IJ’s removal order. The BIA has addressed economic sanctions in Fujian Province and has found that, at most, an alien would face “moderate economic impact” not amounting to persecution. In re J-WS-, 24 I. & N. Dec. 185, 191 (BIA 2007); Shao v. Mukasey, 546 F.3d 138, 164 (2d Cir.2008) (finding that the BIA in J-W-S-reasonably concluded that the economic rewards and penalties used to implement the family-planning policy in Fujian Province did not necessarily amount to “physical or mental coercion”). Here, Zhang offered no evidence indicating that Fujian Province would impose more stringent and punitive economic sanctions in her case than the moderate sanctions Fujian Province normally imposes on its residents who violate the family planning policy. The State Department documents on record indicate only that Fujian Province imposes economic sanctions where foreign-born children are registered as permanent residents. (See 2005 Profile, JA at 1374; 2007 Opinion Letter, JA at 1411.)4 Thus, there is simply nothing in the record that would compel us to conclude that economic sanctions, if any, that Fujian Province might impose on Zhang would be so exorbitant as to amount to persecution. Cf. Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005) (“[T]he deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution.”).
Next, Zhang contends that the BIA failed to properly consider the documents she submitted at the immigration hearing in support of her claim.5 Contrary to her assertion, the BIA “is not required to ‘write an exegesis on every contention. What is required is merely that it consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.’ ” Filja v. Gonzales, 447 F.3d 241, 256 (3d Cir.2006) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (internal quotations omitted)). Here, the BIA acknowledged the voluminous record in Zhang’s case and properly concluded that it was insufficient to carry her burden of proof.
Zhang also argues that the BIA failed to remand her case to the IJ to consider several documents that Zhang submitted for the first time on appeal. The BIA declined to consider the additional documents, noting that its review was “limited to the record as was constituted before the Immigration Judge.” See 8 C.F.R. §§ 1003.1 (d)(3)(i) and (iv) (“Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals.”). We cannot fault the BIA for not considering a remand to the IJ for consideration of the additional *329documents, as Zhang did not file a motion to remand, and mentioned “remand” only once in her brief before the BIA.6 See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (“Discretionary decisions of the BIA will not be disturbed unless they are found to be ‘arbitrary, irrational, or contrary to law.’ ”) (quoting Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir.1979)). Moreover, Zhang has not explained (either before us or to the BIA) why the additional documents she submitted on appeal to the BIA were not previously available or how the evidence, if considered, would change the result in her case. Cf. 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.”).
In sum, we cannot say that the evidence compels a conclusion contrary to that of the BIA. See Yu v. Att’y Gen., 513 F.3d 346, 348-49 (holding that State Department Country Reports constituted substantial evidence supporting the BIA’s finding that petitioner’s fear of forced sterilization upon returning to China was not objectively reasonable); Chen, 376 F.3d at 223 (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”). Accordingly, we will deny the petition for review.
. Zhang gave birth to her daughter, Zoe Chen, in 2006.
. In the opinion, the IJ mistakenly referred to the 2006 Profile of Asylum Claims as "Exhibit 10.”
. In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at length the State Department’s 2005 and 2006 Profile of Asylum Claims and its 2005 and 2006 Country Reports on China. The 2006 State Department Asylum Claims Profile and Country Report are not in evidence in Zhang's case.
. In Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007), the BIA discussed at length the State Department's 2005 and 2006 Profile of Asylum Claims and its 2005 and 2006 Country Reports on China. The 2006 State Department Asylum Claims Profile and Country Report are not in evidence in Zhang's case.
. Among other evidence she claims the BIA failed to consider, Zhang emphasizes Dr. Aird’s affidavit and accompanying materials. (Petitioner's Brief at 18-20.) In Yu v. Attorney General, 513 F.3d 346, 348-49 (3d Cir.2008), we agreed with the BIA that the State Department’s Profile of Asylum Claims and its Country Report on China, both issued in 2005, tended to cast doubt on the utility of Dr. Aird's frequently-cited affidavit, which provided only generalized statements regarding China’s family planning policies and did not specifically address the issue of couples returning to China with foreign-born children.
. We note that twenty-one of the thirty documents contained in the “new background material” appear to be in the record already. (Compare background-index, JA at 90-97, with indices of documents submitted at the removal hearing, JA at 1662-1665 & 1264-65.)
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OPINION
PER CURIAM.
Wen Zheng Zheng petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. For the reasons that follow, we will deny his petition for review.
I.
Zheng, a native and citizen of China, entered the United States in the early 1990’s. He was placed into removal proceedings, and thereafter sought asylum, withholding of removal, and relief under the Convention Against Torture, all of which were denied by the immigration judge (“IJ”) on January 26, 2005. The Board of Immigration Appeals issued a final order of removal on December 13, 2005. It does not appear that petitioner filed a petition for review at that time.
On December 27, 2005, petitioner’s ex-wife, Ms. Lu, from whom he was divorced in 1999, was granted asylum. Petitioner alleges that he became aware of the grant of asylum to his ex-wife in late February 2006. He then visited his former attorney on March 9, 2006, at which time he was informed that he could file a motion to reopen within 90 days of the BIA’s final order of removal; in his case, on or before March 13, 2006. On Monday, March 13, petitioner met with his ex-wife’s attorney, who reportedly informed him that his ex-wife’s asylum claim had nothing to do with his case and that, in any event, it was too late to prepare and file a motion to reopen. On March 15, 2006, petitioner retained present counsel, who prepared and filed a motion to reopen on his behalf. The motion was filed on June 13, 2006,1 and requested that the BIA reopen petitioner’s removal proceedings pursuant to 8 C.F.R. § 1003.2(c)(3)(iii).2 Petitioner further claimed that the 90-day limitation period should be equitably tolled, as the failure to meet the deadline was due to circumstances out of his control and he exercised due diligence to promptly file the motion.
On December 19, 2006, the BIA issued an order holding that the motion to reopen was untimely, see 8 C.F.R. § 1003.2(c)(2), that petitioner failed to demonstrate that a regulatory exception to the time bar applied, see 8 C.F.R. § 1003.2(c)(3), and that he failed to make a case for the application of equitable tolling, citing Iavorski v. INS, 232 F.3d 124, 129-35 (2d Cir.2000). “J.A. 70.” Furthermore, the BIA declined to consider his motion to reopen sua sponte. See 8 C.F.R. § 1003.2(a). Accordingly, the BIA denied petitioner’s motion to reopen. Through counsel, Zheng timely filed a petition for review.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. *331We review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002) (internal quotations omitted).
III.
Zheng’s motion to reopen was clearly untimely. See 8 C.F.R. § 1003.2(c)(2). While he appears to concede this, he argues that the BIA abused its discretion in refusing to equitably toll the filing deadline. He maintains that the filing deadline may be equitably tolled when a party has exercised due diligence and the circumstances preventing the party from timely filing were beyond his control. The Government responds that the BIA acted well within its discretion as Zheng failed to provide any material evidence in support of equitable tolling and never alleged that he was prevented from filing a timely motion to reopen due to fraud.
Most U.S. Courts of Appeals, including this one, have recognized the availability of equitable tolling in immigration proceedings under certain limited circumstances. See, e.g., Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir.2008) (time period may be extended “in exceptional circumstances”); Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir.2008) (“[D]elay in filing the motion to reopen [must be] due to an exceptional circumstance beyond his control.”) (internal quotations omitted); Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005) (applying the “ ‘old chancery rule’ ” for equitable tolling on the basis of fraud); Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir.2004) (recognizing application of “equitable tolling of deadlines ... during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error”) (internal quotations omitted); Jobe v. INS, 238 F.3d 96, 100 (1st Cir.2001) (“[E]quitable tolling ‘is appropriate only when the circumstances that cause a [party] to miss a filing deadline are out of his hands’ ”) (quoting Salois v. Dime Savings Bank, 128 F.3d 20, 25 (1st Cir.1997)); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.2000) (“In a situation where fraud or concealment of the existence of a claim prevents an individual from timely filing, equitable tolling of a statute of limitations is permitted until the fraud or concealment is, or should have been, discovered by a reasonable person in the situation.”). Even assuming that Zheng acted with the requisite diligence in pursuing his motion to reopen, he still must demonstrate that some external force prevented him from timely filing his motion. Based on the evidence in the record, we cannot conclude that the BIA abused its discretion in concluding that Zheng failed to meet this standard.
The remainder of Zheng’s arguments are directed to the underlying merits of his case. Because we defer to the BIA’s determination that Zheng’s motion to reopen was not timely filed, we have no occasion to reach these arguments at the present time.
Based on the foregoing, we deny the petition for review.
. While it does not make any difference to the outcome in this case, the motion was dated May 10, 2006. It is not clear what transpired in the interim.
. 8 C.F.R. § 1003.2(c)(3)(iii) provides that the 90-day time limit shall not apply to a motion to reopen that is "[a]greed to by all parties and jointly filed.” While petitioner did request that the Government join the motion, the Government declined to do so.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
A federal grand jury indicted Appellant Todor Dragn (hereinafter, “Dragn”) and his co-defendants Georgi Dimirov Koston, Vasil Ivanov Ivanov and Desislava Ivanova Kalaydzhieva with possession with intent to distribute cocaine on the high seas and aiding and abetting in violation of 46 U.S.CApp. § 1903(a) and 18 U.S.C. § 2. A jury convicted Dragn on all counts of the indictment while his co-defendants were *333acquitted. Dragn next filed a motion for judgment of acquittal or in the alternative a new trial. The government opposed, and the District Court denied Dragn’s motion. Dragn was subsequently sentenced to two hundred and ninety two months in prison, five years of supervised release, a thousand dollar fine and a special assessment of one hundred dollars. On appeal, he challenges both this conviction and his sentence.
Dragn has requested that the case be remanded for re-sentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) because the District Court treated the Guidelines as mandatory rather than advisory. Dragn further argues that the ease should be remanded because the District Court failed to properly consider all the 18 U.S.C. § 3553(a) factors. The Government does not oppose a remand for re-sentencing. We agree with Dragn that the District Court erred. At sentencing, Dragn asked the District Court for a downward variance from the Guidelines. The District Court commented that:
the sentencing phase has been very prolonged because of my concern with what I considered to be a very stiff sentence. And my concern suggested that I prolong the sentence to ascertain whether or not there was any meaningful alternative to this harsh sentence. This is probably one of the harshest sentences that I’m faced with, but the fact of the matter is, that my hands seem to be tied. The Congress of the United States has required this type of sentence in this type of offense. Needless to say, the sentence being as harsh as it is reflects the seriousness of the crime, and it certainly will provide a deterrence to others. And it certainly is a protection to the public as a result of the deterrence. I am constrained. I am required to accept the findings of the presentence reports, or the findings as is expressed in the presentence report. I am required and constrained to accept the- offense levels as articulated in the presentence report. I will give you and remand you to the custody of the Bureau of Prisons for the minimum time which the guidelines requires, that being 292 months. You will be placed on supervised release for five years. You will be required to pay a fine of a thousand dollars.
App., 749A-750A. In believing his ‘hands to be tied,’ the District Court clearly believed that the Sentencing Guidelines were mandatory, not advisory. See United States v. Hawes, 523 F.3d 245, 256 (3d Cir.2008) (Weis, J., concurring). The District Court’s statements that it was “required” and “constrained” to hand down the sentence it did were erroneous in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We will vacate Dragn’s sentence and remand for re-sentencing.1
*334Dragn also attacks his conviction, arguing that the Government failed to present sufficient evidence of intent. He specifically argues that the Government failed to prove that he knew there was cocaine hidden on his boat or that he intended to aid and abet his co-defendants. We find his arguments meritless.
When we review a claim that evidence was insufficient to support a conviction, we consider the evidence the light most favorable to the Government and may overturn the jury’s verdict only where the record contains no evidence from which a rational jury could conclude beyond a reasonable doubt that the defendant committed the crimes charged. United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996); see also United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). In challenging the sufficiency of the evidence, Dragn bears a heavy burden. See United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992).
There was ample evidence to convict Dragn. Our review of the record establishes that Dragn owned the vessel used in the cocaine transport. The cocaine itself was found on either end of Dragn’s boat, in compartments traditionally used to store luggage. Upon boarding the vessel, United States Coast Guard personnel noticed that the personal effects of the boat’s occupants were strewn about the cabin instead of being properly stowed in the luggage compartments. The testimony clearly established that Dragn purchased the vessel in question with an eye toward its size and suitability for smuggling. Also, witnesses testified that objects were being thrown overboard as Dragn’s boat was approached by the intercepting Dutch navy ship. It was reasonable, given this testimony, for a jury to conclude that cocaine packages were being thrown overboard.
Additionally, the record bears evidence that Dragn’s boat turned away from the intercepting ship, which supports an inference that Dragn was attempting to evade capture and flee. See e.g. United States v. Garate-Vergara, 942 F.2d 1543, 1548 (11th Cir.1993). Testimony of a United States Coast Guard officer leads to the reasonable conclusion that Dragn’s vessel lacked a legitimate purpose for its voyage. Petty Officer Kousch testified that Dragn’s stated purpose for his voyage — transit to Bulgaria — was nonsensical given the location where Dragn’s vessel was stopped and the type of sailing vessel he was operating. Accordingly, the evidence was clearly sufficient to support his conviction.
As a final challenge, Dragn argues that comments made by the Government in its closing summation were improper and denied him a fair trial. We have considered this argument, and conclude that it lacks sufficient merit to require our addressing it in depth. As to the alleged prosecutorial misconduct, Dragn requested and received a curative instruction from the District Court. Because Dragn did not object to this instruction before the District Court, we review for plain error, and we find that the Government prosecutor’s comments fall well short of an “egregious error or a manifest miscarriage of justice.” United States v. Price, 76 F.3d 526, 530 (3d Cir.1996) (internal quotation marks omitted).
We will affirm Dragn’s conviction. We will, however, vacate his sentence and remand this matter for re-sentencing.
. After the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences for "reasonableness.” See id. at 261-62, 125 S.Ct. 738. Reasonableness review involves our inquiry into "whether the trial court abused its discretion." Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Our review contains both a procedural and a substantive component. Review for procedural reasonableness focuses on whether the District Court committed any error in calculating or explaining the sentence. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Review for substantive reasonableness asks us to "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Here however, since the District Court treated the Sentencing Guidelines as mandatory, it did not undertake a reasonableness analysis. We *334are therefore prevented from conducting our review of whether the sentence was, in fact, reasonable.
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OPINION
PER CURIAM.
Petitioner Mykola Kovalchuk seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We will deny the petition.
I.
Mykola Kovalchuk is a native and citizen of Ukraine. Kovalchuk entered the United States on a non-immigrant visa in 1998. In November 1998, his nonimmigrant visa was converted to F-l student status. However, after his student visa expired, Kovalchuk remained in the country. After removal proceedings commenced, Koval-chuk filed a application for asylum, which he later conceded was untimely.1 He also sought withholding of removal and relief under the CAT on the ground that he had been persecuted in Ukraine because of his religion. He alternatively requested voluntary departure. In his application for withholding of removal, Kovalchuk claimed that he left Ukraine in February 1998 to escape persecution that he experienced after becoming a Baptist the year before.
At his removal hearing, Kovalchuk testified that a friend introduced him to the Baptist faith in 1997. Kovalchuk explained that his friend had been beaten because of his Baptist beliefs and that the beating sparked his own interest in better understanding why some people hate others. Kovalchuk attended a meeting of Baptists in February 1997 and was baptized soon *337after. He claimed that he only told a few acquaintances about his baptism, but that one such individual told him that “bad things” would happen to him as a result of it. Kovalchuk testified that in June 1997, while walking home one day, that same person, along with two others, stopped him and took his briefcase. Upon finding a Bible inside it, they confiscated it and threw Kovalchuk to the ground. He claimed that he suffered injuries including a severe headache and vomiting, but he did not seek medical treatment.
Kovalchuk also testified that he received threatening phone calls, but that the police refused to pursue the case, explaining that an officer told him that he “[didn’t] need any Baptist elements.” Kovalchuk wrote a letter to the city council complaining of his treatment, but they told him that he should go to the police. Upon going to the police station, Kovalchuk claimed that officers beat him up because he was involved in “anti-Ukrainian” activities. The officers also detained him for three days. After he was released, he left his hometown of Ga-lich and went to Kiev, hoping that the authorities there would help him. He was arrested, however, and told to return home. In October 1997, while working in a field, Kovalchuk testified that he was assaulted and that one of the men who attacked him threatened to kill him because of his religion. He believed that if he returned to Ukraine, he might be killed.
Following the hearing, the IJ denied Kovalchuk’s application for withholding of removal and relief under the CAT, but granted him voluntary departure. The IJ determined that Kovalchuk had not presented evidence sufficient to demonstrate that he had been persecuted in the past or that he it was more likely than not that he would be persecuted in the future. The IJ found Kovalchuk’s claim of past persecution unpersuasive because he did not present any witnesses or provide any medical records describing physical or mental problems stemming from his experiences in Ukraine. The IJ also questioned the extent of Kovalchuk’s current commitment to the Baptist faith as he offered no evidence of his involvement in the religion other than a letter from a pastor stating that he had been attending church services. Lastly, the IJ noted that since Kovalchuk left Ukraine, the political landscape had changed. A recent State Department report explained that citizens are allowed greater freedom of association under the current Ukranian President, and thus, Kovalchuk did not have a well-founded fear of future persecution.
Kovalchuk appealed the IJ’s decision to the BIA and, in a November 2008 opinion, the BIA dismissed Kovalchuk’s appeal. The BIA determined the IJ did not err in finding that Kovalchuk did not provide the evidence sufficient to corroborate his claim and that his explanations for not doing so were unpersuasive. The BIA also affirmed the IJ’s ruling that Koval-chuk did not have a well-founded fear of future persecution in Ukraine, disagreeing with Kovalchuk’s assertion that the IJ gave improper weight to State Department Country reports. Lastly, the BIA disagreed with Kovalchuk’s claim that his due process rights were violated when the IJ precluded his proposed expert witness from testifying at the hearing.2 This petition for review followed.
II.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings *338of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
For withholding of removal, an applicant must prove that his “life or freedom would be threatened in that country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3); 8 C.F.R § 208.16(b). A petitioner applying for withholding of removal must establish a clear probability of persecution. 8 U.S.C. § 1231(b)(3). A “clear probability means more likely than not.” INS v. Stevie, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An applicant seeking relief under the CAT must establish that “it is more likely than not” that he would be tortured if removed to the proposed country of removal. Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)).
First, Kovalchuk argues that the BIA erred in upholding the IJ’s determination that he failed to present evidence sufficient to corroborate his claim of past persecution based on his Baptist faith. Specifically, Kovalchuk claims that the IJ and BIA did not give sufficient weight to his explanation that much of evidence supporting his claim was unavailable. Second, Kovalchuk argues that the BIA erred in upholding the IJ’s decision to afford substantial weight to State Department Country reports to the exclusion of other evidence regarding country conditions in Ukraine. Third, Kovalchuk argues that the BIA improperly denied his claim that the IJ violated his due process rights by denying his expert witness an opportunity to testify at the hearing.
The IJ and BIA may expect reasonable corroboration of a claim. Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001). An applicant’s failure to corroborate may undermine his case if: (1) the facts at issue are facts for which corroboration is reasonable to expect; (2) the applicant failed to corroborate those facts; and (3) the applicant has not adequately explained his failure to do so. Id. We find the BIA’s determination that Kovalchuk failed to provide sufficient corroborating evidence is supported by substantial evidence.
Kovalchuk testified that he suffered marks and scars on his lips and nose after he was beaten. (A.R.176-77.) However, he did not provide any documentary evidence either demonstrating that he sought treatment from doctors or verifying that he had previously been injured in Ukraine. Ko-valchuk was also unable to provide any documents showing that he has sought medical treatment in the United States for any of his injuries. (Id. at 167-69.) When questioned about the availability of evidence supporting his claim that he was a practicing Baptist in Ukraine, such as a baptismal birth certificate or statements from his Baptist friends, Kovalchuk claimed the evidence was unavailable. (Id.) As mentioned, Kovalchuk was only able to provide a letter from his current pastor stating that he has attended church services in the United States.
We agree that Kovalchuk’s inability to produce any information corroborating his Baptist affiliation in Ukraine — e.g., a baptismal birth certificate or an affidavit from his former pastor — coupled with his inability to provide any medical records, undermined his ability to establish his claim. Abdulai, 239 F.3d at 554. Furthermore, *339Kovalchuk showed no visible physical signs of past torture at his hearing and he did not provide any historical data supporting his claim that Baptists suffered routine persecution in Ukraine in 1997 and 1998.
We also find that substantial evidence supports the IJ’s and BIA’s conclusion that Kovalchuk would not be harmed upon his return to Ukraine. Although Ko-valchuk argues that the IJ and BIA improperly relied upon State Department Country reports to reach their conclusion, this Court has recognized that reliance on State Department reports is justifiable and that such reports may constitute “substantial evidence” for the purposes of reviewing immigration decisions. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir.2004). Kovalchuk argues that the IJ ignored articles that he submitted in support of his application discussing the treatment of Orthodox Christians in Ukraine. However, a review of the articles shows that they do not contradict the information observed in the State Department Reports in any meaningful way.
Lastly, Kovalchuk argues that the BIA improperly concluded that his due process rights were not violated when the IJ refused to allow his expert witness to testify at the hearing. Although there is no constitutional right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir.1990). In this context, the Due Process Clause entitles an alien to “a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir.2006). To prevail on a due process claim, an alien must show substantial prejudice. Id.
The IJ, after considering the expert’s affidavit and curriculum vitae, determined that he had no specialized knowledge regarding the treatment of Baptists in Ukraine. (A.R.52.) Kovalchuk’s attorney admitted at the hearing that the expert had no specialized knowledge about the treatment of Christians in Ukraine. (Id. at 174.) In his brief, Kovalchuk does not address what particular conclusions drawn by the IJ based upon the State Department Reports the expert would have refuted. Accordingly, he has not presented any specific information on appeal showing that he was prejudiced by the IJ’s refusal to allow the expert to testify, particularly where the IJ considered the expert’s curriculum vitae and affidavit prior to rendering his decision. See Romanishyn, 455 F.3d at 185-86.
Finally, the BIA did not err when it concluded that Kovalchuk had not established a basis for relief under the CAT, as he did not demonstrate that it is more likely than not that he would be tortured if returned to Ukraine. Accordingly, we will deny the petition for review.
. Kovalchuk filed his application for asylum only after he was served with a Notice to Appear on June 23, 2003. His attorney conceded at the hearing that Kovalchuk had failed to apply for asylum within one year of entering the country, and there were no changed or extraordinary circumstances to excuse his failure to do so. See 8 U.S.C. § 1158(a)(2)(B).
. The IJ considered the expert’s curriculum vitae and affidavit and determined that he had no expertise on the treatment of Baptists in Ukraine.
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OPINION OF THE COURT
PER CURIAM.
Fang Zheng, a native and citizen of the People’s Republic of China, petitions for review of a decision entered by the Board of Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings. We will deny the petition for review.
Zheng entered the United States without inspection in 2004 and reunited with her husband, a Chinese national who remained in this country despite having been ordered removed in 2002. Zheng herself was placed in removal proceedings, at which time she conceded removability as an alien present without being admitted or paroled, and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Zheng claimed that she and her husband had a daughter in 1999 who allegedly remains in China in the care of in-laws. Zheng states that she evaded the authorities for a short time after becoming pregnant again, but was ultimately found at her mother’s home *341and forced to have an abortion, along with an IUD inserted, in May 2000. After coming to the United States in 2004, Zheng allegedly had the IUD removed, and she and her husband had another daughter, a United States citizen, in 2006. Zheng states that she fears persecution in China on account of now having had a second child, purportedly in violation of that country’s family planning policies.
After a hearing, the Immigration Judge (“IJ”) rejected the credibility of Zheng’s testimony and denied relief. Among other things, the IJ noted that a written certificate introduced by the husband at his removal proceeding to establish Zheng’s forced abortion and IUD insertion was expressly rejected by the IJ in that proceeding as fraudulent. Zheng was unable to authenticate the certificate at her own proceeding, and the IJ found her testimony as to how she had obtained the certificate, and how it had wound up in her husband’s possession for use in connection with his asylum claim, to be inconsistent and lacking in credibility. On September 15, 2008, the BIA dismissed Zheng’s appeal, agreeing with the IJ that Zheng lacked credibility, and further finding that she did not establish a well-found fear of persecution based on having had a second child while in the United States.
Zheng timely filed a motion to reopen with the BIA, submitting what she claimed was previously unavailable evidence to support her alleged fear of persecution, including a letter from her mother-in-law and a certificate from a local village committee in Fujian Province purporting to order that Zheng be sterilized in light of having had two children.
On June 12, 2009, the BIA denied the motion to reopen, holding that Zheng’s submissions were insufficient to justify reopening the proceedings. With respect to the purported notice irom the local village committee and letters from family members, the BIA found this evidence insufficient to meet Zheng’s burden of proof on a motion to reopen, particularly in light of the IJ’s adverse credibility finding. The BIA noted that the purported certificate was not authenticated “in any manner,” and that “it is well-known that Fujian Province, the province from which the respondent comes, has a major problem with false documents.” Zheng timely filed a petition for review in this Court from the order denying her motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Zheng’s motion to reopen. This Court reviews the denial of a motion to reopen for abuse of discretion, affording “broad deference” to the agency’s decision. Ezeagwuna v. Ashcroft, 825 F.3d 396, 409 (3d Cir.2003). We will not disturb the BIA’s decision unless Zheng shows that it was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).
Zheng argues that the BIA abused its discretion because local officials have ordered her sterilization. Zheng notes that she submitted materials indicating that her child born in the United States will be considered a Chinese citizen in China, and that she will be held in violation of family planning policy. She argues that the BIA erred in failing to accept the authenticity of her sterilization certificate, which she claims is supported by a letter from her mother-in-law, and failed to consider the import of her background materials on Chinese law. Appellant’s Br. at 2-3.
After a review of the record, we cannot conclude that the BIA abused its discretion in denying the motion to reopen. Given the IJ’s determination that Zheng’s testimony lacked credibility, and given that Zheng and her husband had sought to introduce a fraudulent document regarding *342her alleged abortion and IUD in her husband’s removal proceeding, the BIA did not act unreasonably in expecting Zheng to authenticate the purported sterilization certificate submitted in support of the motion to reopen. As the BIA noted, however, the certificate was not authenticated “in any manner,” despite the fact that Zheng claims that her mother-in-law recently obtained the certificate directly from the local village committee. Zheng presumably could have obtained consular authentication pursuant to 8 C.F.R. § 287.6, or authentication in some other form. While we have held that failure to authenticate under § 287.6 does not warrant “per se exclusion of documentary evidence, and a petitioner is permitted to prove authenticity in another manner,” Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004), Zheng, as noted, did not authenticate in any manner. The unsworn letter from her mother-in-law regarding the certificate was insufficient. Particularly in view of the fraudulent document previously submitted, and the concern generally with fraudulent documents from Fujian Province, the BIA did not err in rejecting the unauthenticated “certificate” that formed the core of Zheng’s motion to reopen.
As to Zheng’s additional eviden-tiary submissions regarding China’s family planning policies, none of Zheng’s materials post-dates the BIA’s final removal order, and indeed there appears to be no reason why Zheng could not have submitted the materials at the time of her hearing before the IJ. The BIA thus did not err in finding this evidence insufficient to support a motion to reopen. Finally, Zheng had represented in the hearing before the IJ that, upon her removal, she planned to leave her United States child in the care of her mother, who resides here as a lawful permanent resident. The BIA reasonably declined to revisit Zheng’s claimed fear of future persecution insofar as Zheng sought to base the claim on a new, wholly contradictory assertion that she now intends to return to China with her second child.
For the foregoing reasons, we will deny the petition for review.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Martin sustained severe injuries to his left hand while operating a saw at his place of employment. The saw was at least fifty years old and had been sold by the original buyer to the previous owner of the company. that employed Martin. The saw did not have a safety guard on the blade. Martin claims that the condition of the saw caused his injuries, making Powermatic Corporation strictly liable, negligent for failure to warn, or in breach of an express warranty or implied warranty of merchantability.
Generally, the sale or transfer of assets from one company to another is not a legal basis for asserting successor liability against the purchaser for the torts of the transferor. Polius v. Clark Equipment Co., 802 F.2d 75, 77 (3d Cir.1986). The District Court correctly concluded that ownership of the assets of the Powermatic Division was transferred to JET Equipment and Tools, Inc. through an asset purchase agreement with DeVlieg-Bullard, Inc., during the time that DeVlieg-Bullard was in the midst of reorganization under Chapter 11 of the Bankruptcy Code. Moreover, we agree that there is no record evidence that Powermatic fell within any of the exceptions to the general rule of successor nonliability that we describe in Po-lius. The asset purchase agreement expressly disclaimed all product liability claims against the Powermatic Division of DeVlieg-Bullard, Inc., for products sold before the closing date of the agreement. We also agree that the evidence does not support a defacto merger finding.
With respect to the implied warranty claims, Martin essentially challenges JET’s argument before the District Court that an implied warranty claim cannot be raised *347where strict liability is not actionable. However, the District Court’s decision was not based upon this legal argument. Instead, the District Court dismissed this claim on the basis that implied warranties were expressly and conspicuously excluded in the operating instructions manual of the machine in question. Martin’s appeal does not dispute this. For this reason, we must conclude that the District Court properly dismissed this claim.
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Elizabeth Dempsey filed this lawsuit under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., (“Title VII”) against her employer, Delaware Department of Public Safety (DPS), alleging that DPS discriminated against her on the basis of gender.1 Dempsey asserted that *348DPS disciplined her more harshly for misconduct than it did male employees that she alleged engaged in similar misconduct. The District Court granted summary judgment in favor of DPS. Dempsey appeals, and this Court will affirm the District Court’s judgment.
I.
The District Court granted DPS’s motion for summary judgment, holding that Dempsey failed to establish a prima facie case of gender discrimination. The District Court further held that even if Dempsey could make out a prima facie case, DPS articulated a legitimate nondiscriminatory reason for her discipline. Since Dempsey did not argue in her responsive brief that the proffered reason was a pretext for discrimination, the District Court held that DPS was entitled to summary judgment.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). We will view the evidence in the light most favorable to Dempsey and draw all justifiable, reasonable inferences in her favor. Id. We will affirm if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that [DPS] is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56.
III.
In the absence of direct evidence of discrimination (as in the present case), a plaintiff may prove discrimination according to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, Dempsey bears the initial burden of establishing a prima facie case of gender discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If Dempsey succeeds, the burden shifts to DPS to set forth a “legitimate, nondiseriminatory reason” for its actions. Id. at 803, 93 S.Ct. 1817. If DPS meets its burden, Dempsey must then show that the proffered reason is a pretext for discrimination. Id. at 804, 93 S.Ct. 1817. Despite the burden-shifting, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
For purposes of this appeal, we will assume that Dempsey established a prima facie case. Dempsey does not dispute that DPS articulated a legitimate, nondiscriminatory reason for her discipline. This case turns on Dempsey’s failure to meet her burden at the pretext stage.
DPS argued in the District Court that there was no evidence in the record to support a finding of pretext. Despite DPS advancing this argument in support of its motion for summary judgment, Dempsey did not dispute this argument in opposing the motion. The District Court noted this and determined that Dempsey “[did] not *349even addi’ess pretext in her responsive brief.” Appendix 14.
We have recognized that in order for an issue to be preserved for purposes of appeal, a litigant “must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits.” Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir.1999). Consequently, “[i]t is well established that arguments not raised before the District Court are waived on appeal.” DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 n. 1 (3d Cir.2007). See also Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.1995) (“If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.” (quoting Vaughner v. Pulito, 804 F.2d 873, 877 n. 2 (5th Cir.1986))); Liberies v. Cook County, 709 F.2d 1122, 1126 (7th Cir.1983) (“It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.”). Dempsey failed to argue before the District Court that DPS’s articulated legitimate, nondiscriminatory reason for her discipline was a pretext for discrimination and has therefore waived that argument on appeal. See generally Adair v. Charter County of Wayne, 452 F.3d 482, 491 (6th Cir.2006) (“Because Plaintiffs provide no argument on their challenge of pretext, it is waived.”). Because Dempsey has not established pretext, her Title VII claim must fail.
For the foregoing reasons, we will affirm the District Court’s judgment.
. Dempsey also alleged that DPS breached the covenant of good faith and fair dealing. *348Dempsey explicitly abandoned that claim in the District Court.
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OPINION OF THE COURT
FISHER, Circuit Judge.
The Estate of Charles L. Grimes appeals an order of the District Court affirming a 9019 motion granted by the Bankruptcy Court approving modifications to a settlement agreement of a derivative suit filed on behalf of Riverstone Networks, Inc. (“RNI”) against its former officers and directors. On appeal, the Estate contends that the Bankruptcy Court lacked subject matter jurisdiction to approve the amendment to the settlement agreement and incorrectly allowed the settlement to be amended without the Estate’s consent. For the reasons set forth herein, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
This case began with the filing of a derivative action on behalf of RNI in the United States District Court for the Northern District of California against the corporation’s former officers and directors. The derivative action was settled and the court gave its preliminary approval of the Settlement Agreement subject to the requirements of Fed.R.Civ.P. 23.1. Charles Grimes, a large shareholder of RNI, objected to final approval of the settlement because of the $1.75 million in fees to be paid to plaintiffs counsel and because of the “unitary” nature of the settlement agreement.1 The District Court approved the settlement and Grimes appealed to the United States Court of Appeals for the Ninth Circuit on August 11, 2005.
On February 7, 2006, RNI filed for protection under Chapter 11 of the Bankruptcy Code.2 The Ninth Circuit denied a motion filed by both RNI and the plaintiffs in the derivative action to dismiss Grimes’ appeal as moot on March 17, 2006. Soon thereafter, acting pursuant to the automatic stay provision of the bankruptcy code, the Ninth Circuit issued a stay of Grimes’ appeal on March 29, 2006, and that stay remains in effect.
Plaintiffs in the derivative suit and RNI then sought to change the terms of the Settlement Agreement by requiring plaintiffs’ attorneys to refund $950,000 of their fees to RNI’s Bankruptcy Estate. On June 8, 2006, the RNI filed a motion pursuant to Bankruptcy Rule 9019 seeking approval of the amendment to the settlement agreement.
Grimes objected before the Bankruptcy Court asserting that the Court lacked jurisdiction to vacate or modify the California District Court’s First Settlement order; that as the only appellant in the Ninth Circuit appeal, Grimes’ consent was needed to settle that suit; and that Debtors did not show that the proposed settlement was reasonable. The Bankruptcy *354Court granted the 9019 motion approving the amended settlement on August 23, 2006. Grimes appealed to the District Court.
On September 12, 2006, the Bankruptcy Court entered a Confirmation Order confirming the Debtors’ plan of reorganization and liquidation. The Confirmation Order enjoins all ongoing and future actions against the Estate. Accordingly, RNI moved to dismiss the District Court appeal as violative of the Confirmation Order. The District Court denied the motion to dismiss without prejudice on September 22, 2008, and entered an order affirming the Bankruptcy Court’s 9019 ruling on March 26, 2009. This timely appeal followed.3
II.
The subject matter jurisdiction of the Bankruptcy Court is contested by the Estate. We find that the bankruptcy court had subject matter jurisdiction pursuant to 28 U.S.C. § 1334 which provides the Bankruptcy Court with jurisdiction over all property of the debtor’s estate. The District Court had jurisdiction over the appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(1) and Fed. R. Bank. P. 8001. We have jurisdiction under 28 U.S.C. § 158(d)(1) and 28 U.S.C. § 1291.
We exercise plenary review over whether the Confirmation Order bars the Estate from pursuing this appeal, In re Exide Techs., 544 F.3d 196, 205 (3d Cir.2008), whether the Bankruptcy Court had subject matter jurisdiction, Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921, 924 (3d Cir.1990), and whether the Bankruptcy Court correctly granted the 9019 Motion, In re Exide Techs., 544 F.3d at 205.
III.
RNI claims that the Confirmation Order entered by the Bankruptcy Court approving its plan of reorganization and liquidation bars the Grimes Estate from bringing this appeal. Because a finding that the appeal is barred would moot all other issues in this appeal, we will consider this issue first.
Paragraph 49 of the Confirmation Order provides in pertinent part:
“On and after the Confirmation Date, except as provided in the Plan or this Confirmation Order, all Persons that have held, currently hold or may hold a Claim, Equity Interest, or other debt or liability that is addressed in the Plan are permanently enjoined from taking any of the following actions on account of any such Claims, Equity Interests, or other debts or liabilities, other than actions brought to enforce any rights or obligations under the Plan: (i) commencing or continuing in any manner any action or other proceedings against the Debtors or the Reorganized Debtors or their respective properties that was or could have been commenced prior to the Effective Date[.]”
(Supp.App.84-85.)
There is no question that Grimes held an equity interest in RNI and that he maintained an action or proceeding at the time the Bankruptcy Court entered its confirmation order. Additionally, the appeal clearly addresses a debt of the bankruptcy estate to the extent it challenges the attorneys’ fee disbursement in the Settlement Agreement. “Pursuant to 11 *355U.S.C. § 1141(a), all parties are bound by the terms of a confirmed plan of reorganization.” First Union Comm. Corp. v. Nelson, Mullins, Riley, & Scarborough, 81 F.3d 1310, 1315 (4th Cir.1996) (citing In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 463 (6th Cir.1991)). Therefore, under the plain language of the Confirmation Order, Grimes is enjoined from bringing this appeal.
Grimes argues that the Bankruptcy Court did not intend for the Confirmation Order to bar appellate review of its approval of the 9019 Motion. Grimes’ argument runs counter to the plain language of the Confirmation Order, which enjoins both pending and future actions. The Bankruptcy Court’s approach is consistent with our jurisprudence respecting the finality of bankruptcy confirmation orders. We have emphasized that:
“[T]he purpose of bankruptcy law and the provisions for reorganization could not be realized if the discharge of debtors were not complete and absolute; that if courts should relax provisions of the law and facilitate the assertion of old claims against discharged and reorganized debtors, the policy of the law would be defeated; that creditors would not participate in reorganizations if they could not feel that the plan was final; and that it would be unjust and unfair to those who had accepted and acted upon a reorganization plan if the court were thereafter to reopen the plan and change the conditions which constituted the basis of its earlier acceptance.”
In re Penn Central Transp. Co., 771 F.2d 762, 767 (3d Cir.1985).
Penn Central ensures that a reorganization plan that was the result of a delicate balance between parties of divergent interests either succeeds or fails in full, rather than being dismantled by piecemeal litigation, leaving parties bound by some portions of the Confirmation Order and not others. In light of Penn Central, it is perfectly logical that the Bankruptcy Court would intend to enjoin future appellate proceedings regarding the 9019 Order; a reversal of its ruling on an essential term of the Debtors’ Plan of Reorganization would undermine the finality of its Confirmation Order.
In a number of cases decided after Penn Central, we have held that a Confirmation Order precluded a party from attacking the validity of individual components of the reorganization plan. See In re PWS Holding Corp., 303 F.3d 308, 315 (3d Cir.2002); In re Szostek, 886 F.2d 1405, 1413 (3d Cir.1989). As in those cases, the Confirmation Order here by its plain terms bars the Grimes Estate from proceeding with this appeal.
We also disagree with Grimes’ position that the Bankruptcy Court lacked the authority to enjoin an appeal of its own order. The Confirmation Order enjoins only collateral appeals. It does not, and cannot, preclude direct appeal of the Confirmation Order as expressly provided for by statute. 28 U.S.C. § 158(a)(1); Fed. R. Bank. P. 8001. Grimes had an avenue of appeal open to him: he could have objected to the Confirmation Order and appealed that Order to the District Court. His failure to do disposes of this appeal.
Because we agree with RNI that the Confirmation Order bars the Estate from proceeding with this action, we need not consider the merits of the appeal.
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
. In a unitary settlement, the fee agreement is included as a term of the settlement, and the reviewing Court can only approve or disapprove the entire settlement.
. RNI officially changed its name to RNI Wind Down Corporation on May 24, 2006.
. On March 6, 2007, the Estate of Charles L. Grimes filed a Suggestion of Death on Record in the District Court noting the death of plaintiff Charles L. Grimes during the pendency of the action and the substitution, pursuant to Federal Rule of Civil Procedure 25(a)(1), of the Estate as the party in interest.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
On January 23, 2008, a federal grand jury in the Eastern District of Pennsylvania returned a superseding indictment charging Sherman Kemp and ten others with, inter alia, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Kemp filed a motion to dismiss the indictment on double jeopardy grounds. The United States District Court for the Eastern District of Pennsylvania issued an order on July 20, 2009 denying the motion without conducting an evidentiary hearing. *357Kemp appeals the District Court’s order. We will affirm.
I.
The issue presented involves two federal indictments. The first indictment (the “Maryland indictment”), returned in the District of Maryland on June 28, 2007, contained four counts: Count One charged Kemp and one co-defendant, Isaac Gomez, with conspiracy to distribute cocaine and possession with intent to distribute, in violation of 21 U.S.C. § 846; Count Two charged Kemp with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); Count Three charged Kemp with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and Count Four charged Kemp with possession of 500 grams or more of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Kemp pled guilty to all four counts on July 17, 2008, and was sentenced to fifteen years imprisonment.
The factual basis of Counts One and Four are relevant to this appeal. Count One charged Kemp and Gomez with conspiring to distribute cocaine “in the District of Maryland and elsewhere” from March 2007 through about June 2007. According to the plea agreement, Kemp would travel to New York City to purchase kilograms of cocaine from Gomez, which Kemp then sold to lower-level dealers in Baltimore. Count Four charged Kemp with only the substantive crime of possession with intent to distribute on or about September 11, 2002. The plea agreement stated that Kemp was attempting to deliver cocaine in Baltimore on this date. After Kemp parked his car at 3832 Kenyon Avenue, a location in the city where he stored cocaine, law enforcement officers attempted to arrest him. Kemp eluded arrest and eventually escaped. The police subsequently executed a search warrant at this address and recovered over 3000 grams of cocaine and a scale used for weighing cocaine. As noted, Kemp pled guilty to all counts, including Counts One and Four.
The second indictment (the “Pennsylvania indictment”) was issued by a grand jury in the Eastern District of Pennsylvania on January 23, 2008. Count One — the only count of the fifteen-count indictment with which Kemp was charged — alleged that Kemp and ten co-defendants conspired to distribute cocaine from about 1998 through about 2007. According to the indictment, the co-defendants were part of a multi-million dollar cocaine distribution organization based throughout the Philadelphia metropolitan area, New Jersey, and Maryland. The organization, called the Phillips Cocaine Organization (the “PCO”), was founded and led by Maurice Phillips. The indictment alleged that Kemp joined the conspiracy in 1999 and became a leader of the PCO, eventually reporting directly to Phillips. Kemp’s aforementioned cocaine possession on September 11, 2002, which was the basis of Count Four in the Maryland indictment, was among more than one hundred overt acts listed in the Pennsylvania indictment and allegedly committed in furtherance of the conspiracy.
Kemp filed a motion to dismiss the Pennsylvania indictment on double jeopardy grounds, contending that the conspiracy charged was in law and in fact the same offense as the conspiracy charged in Count One of the Maryland indictment. On July 15, 2009, the District Court denied Kemp’s motion without conducting an evidentiary hearing. In a footnote to its order, the court cited United States v. Liotard, 817 F.2d 1074 (3d Cir.1987). Kemp filed a *358timely Notice of Appeal.1
II.
The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Double jeopardy attaches when it is “shown that the two offenses charged are in law and in fact the same offense.” United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985) (citing United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). A defendant is entitled to a pre-trial evidentiary hearing if he makes a non-frivolous showing of double jeopardy. Liotard, 817 F.2d at 1077. Once a defendant makes this showing, “the burden of persuasion shifts to the government to prove by a preponderance of the evidence that the two indictments charge the defendant with legally separate crimes.” Id. (citing Felton, 753 F.2d at 278).
To ensure a defendant’s constitutional right against double jeopardy is adequately protected in the context of successive conspiracy prosecutions, we apply a “totality of the circumstances” test in which we consider (1) the “locus eriminis” (location) of the two alleged conspiracies; (2) the degree of temporal overlap between the conspiracies; (3) the overlap of personnel between the conspiracies, including unin-dicted co-conspirators; and (4) the similarity in the overt acts charged and the role played by the defendant in each indictment. United States v. Smith, 82 F.3d 1261, 1267 (3d Cir.1996) (citing Liotard, 817 F.2d at 1078). We have not applied these factors rigidly, id., focusing instead on the overarching inquiry of “whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to the same set of objectives in a single conspiracy.” Id. at 1271.
Kemp argues he has made a non-frivolous showing with respect to each factor of the Liotard test. Specifically, he contends that both indictments accused him of conspiring to distribute cocaine in Maryland in 2007, which meets the first and second factors, and they both averred he possessed cocaine and eluded police on September 11, 2002, which meets the fourth factor. With respect to the third factor, Kemp argues he was precluded from demonstrating an overlap of personnel between the two conspiracies because the court did not conduct an evidentiary hearing. In contrast, the government claims the two conspiracies charged were vastly different — besides the slight temporal overlap and the fact that the two indictments referred to Kemp’s cocaine possession on September 11, 2002, the conspiracies were unrelated. We agree.
First, although Kemp’s alleged involvement in both conspiracies was centered in Baltimore, the scope of the conspiracies differed significantly. The Pennsylvania indictment alleged that the conspiracy involved multiple locations throughout the East Coast, while the Maryland conspiracy involved only New York City and Baltimore.
Similarly, the slight temporal overlap between the conspiracies does not provide *359much support under the second Liotard factor. The Pennsylvania conspiracy allegedly spanned from 1998 through 2007, with Kemp’s involvement beginning in 1999. The Maryland conspiracy, however, ran only from March 2007 through about June 2007.
Third, Kemp’s argument that he was unable to show an overlap of personnel between the conspiracies because the District Court did not conduct an evidentiary hearing is unavailing. The factual basis of Kemp’s guilty plea to the Maryland charges demonstrates that he purchased cocaine from Gomez in New York and supplied it to dealers in Baltimore. Although there were unindicted co-conspirators, Kemp’s plea agreement shows that they were limited to lower-level dealers in the Baltimore area. In contrast, the Pennsylvania indictment charged Kemp and ten co-defendants with conspiring with each other and numerous unindicted co-conspirators. Gomez was not charged in the Pennsylvania indictment, and there is no evidence that he was involved in any of the more than one hundred alleged overt acts. Because Kemp has not pointed to anything in the record showing an overlap of membership between the conspiracies, he is not entitled to an evidentiary hearing simply by claiming he would present the evidence at that time.
Finally, Kemp has failed to present evidence that the overt acts and the alleged role he • played in each conspiracy were similar. Although both conspiracies were based on the distribution of cocaine, there were no overlapping overt acts in the indictments. Kemp’s reference to the September 11, 2002 incident is inapposite. The Maryland indictment charged Kemp with the substantive crime of possession with intent to distribute based on this incident, while the Pennsylvania indictment simply used Kemp’s admitted conduct on this date as one of many overt acts in furtherance of the alleged conspiracy. Moreover, the Pennsylvania indictment alleged that Kemp was a leader of the PCO and managed drug trafficking in the Baltimore area, while the factual basis of Kemp’s guilty plea in the Maryland case stated that he served only as a middleman between Gomez, a New York supplier, and lower-level dealers in Baltimore.
III.
For the foregoing reasons, Kemp has failed to make a non-frivolous showing of double jeopardy. Accordingly, we will affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. A pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is within the "collateral order” exception to the final order requirement. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Smith, 82 F.3d 1261, 1265 (3d Cir.1996). Accordingly, we have jurisdiction under 28 U.S.C. § 1291. Our review of double jeopardy challenges is plenary. Smith, 82 F.3d at 1265 (citing United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir.1988)).
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sergey Shishkin, a federal prisoner, appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Shishkin v. Dwyer, No. 5:08-hc-02152-H (E.D.N.C. Mar. 18, 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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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angus Whitney appeals the district court’s order granting the Government’s motion to dismiss for lack of jurisdiction. *363We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Whitney v. United States Navy, No. 2:09-cv00201-RAJ-TEM (E.D.Va. July 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Opinion
WEIS, Circuit Judge.
Defendant pled guilty to illegally re-entering the country five years after being deported for his commission of criminal sexual contact. See 8 U.S.C. § 1326. The District Court sentenced him to 46 months imprisonment, the bottom of the Guideline range. Defendant now contends that the Court erred in “focus[ing] almost exclusively on” his conviction for the sex crime, for which he had already served time in prison, as the main factor in calculating the sentence. We will affirm the sentence imposed.
In computing the Guideline range, the Court included a sixteen-level enhancement to the base offense level because of the defendant’s previous conviction for a felonious crime of violence. See U.S.S.G. § 2L1.2(b)(l)(A). That addition, combined with a three-level decrease for the acceptance of responsibility, resulted in an adjusted Guideline offense level of 21, which, when applied to the defendant’s criminal history category of III, culminated in a range of 46-57 months imprisonment. In computing the criminal history, the Court included a state conviction for failing to register as a sex offender. That violation occurred after defendant re-entered this country.
The District Court reviewed the defendant’s mitigation claims in detail and thoroughly explored the reasons for the Guideline calculations. The Court also gave “meaningful consideration” to the factors in 18 U.S.C. § 3553. United States v. Starnes, 583 F.3d 196, 215 (3d Cir.2009) (a procedurally reasonable sentence “re-flectes] a district court’s meaningful consideration of the factors set forth at ... § 3553(a)” (quoting United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007))). In addition, the Court noted that defendant already had served six months in a state jail for failing to register as a sex offender and, but for that, the sentence would have been higher than the 46 months imposed.
We are convinced that the District Court “committed no significant procedural error in arriving at its [sentencing] decision,” nor did it impose a substantively unreasonable term of imprisonment. Id. The Court painstakingly analyzed the case and the arguments ably raised by defense counsel. We find no reversible error in the defendant’s sentence.
We note further that defendant has raised a claim that the District Court accepted his conviction under 8 U.S.C. § 1326(b)(2) by a preponderance of the evidence in spite of the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant candidly admits that he raises this point to preserve the issue should the Supreme Court modify its holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We acknowledge the defendant’s preservation of the issue.
Accordingly, the judgment of the District Court will be affirmed.
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OPINION
AMBRO, Circuit Judge.
Raymond Frantz appeals the judgment of the District Court against him and in favor of the defendants, Philadelphia Police Officers William G. Gress and John Hanejko.1 As we discern no error in the findings of fact and conclusions of law entered by the District Court, we affirm.
I.
Frantz filed a complaint in July 2006 against Gress and Hanejko, alleging violations of his First and Fourth Amendment *302rights, malicious prosecution, and the unconstitutionality under the Equal Protection Clause of §§ 10-723 and 723.1 of the Philadelphia Code. Frantz has been distributing religious tracts since 1984 with an outreach campaign for Jews for Jesus and Jewish Outreach Partnership for the Philadelphia Area, and he bases his complaint on two specific incidents that occurred while he was attempting to distribute his leaflets at the corner of Fourth and South Streets in Philadelphia.
The first incident occurred on April 9, 2005. According to Frantz, he was standing close to the curb, not blocking pedestrian passage, when Officer Gress told Frantz that he could not pass out handbills and that he was creating a litter problem. Gress, in contrast, testified that Frantz was standing in the middle of the sidewalk, causing pedestrians either to walk into the street or get “shoved up against” the wall. Gress informed Frantz he could not hand out leaflets. When Gress realized Frantz was distributing religious leaflets, for which a license is not required, Gress instead asked Frantz to move nearer to the curb to avoid obstructing the pathway. Frantz refused to comply after two orders.
Frantz was arrested and taken to the police station. Gress issued a citation for improper distribution of handbills, in violation of Philadelphia Code § 10-723.2 The District Attorney later amended the charges to include “Obstructing the Highway” under 18 Pa. Cons.Stat. § 5507.3 Frantz was found guilty in Municipal Court of violating § 10-723, but Frantz testified that the charges against him were dismissed at the Common Pleas level.
On June 18, 2006, Frantz testified that he was standing near the curb at the same location when Officer Hanejko told Frantz he could not hand out literature and threatened to arrest him if he did not leave. Officer Hanejko testified that Frantz was not near the curb but was standing in the middle of the sidewalk, causing pedestrians either to veer into the street or run into the wall to pass him. Hanejko further testified that he did not tell Frantz he could not hand out literature, but instead informed him that he could be arrested for obstruction of the highway if he did not move to the side so as not to obstruct pedestrian traffic. Frantz grew angry and left.
After the District Court denied Frantz’s motion for summary judgment, the case proceeded to a two-day bench trial. In June 2008, the District Court issued Findings of Fact and Conclusions of Law and entered judgment on all claims for Officers Gress and Hanejko. Frantz timely appealed.*3034
II.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331, and we have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
This case comes to us after a non-jury trial. We review a District Court’s findings of fact for clear error and its conclusions of law de novo. Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 208 (3d Cir.2001). “We review credibility determinations, like other factual findings, under a clearly erroneous standard.” Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 137 (3d Cir.2009).
III.
Frantz challenged his 2005 arrest on Fourth Amendment grounds, contending that it was not supported by probable cause. However, Gress had probable cause to arrest Frantz when he refused Gress’s repeated requests to move from the middle of the sidewalk where he was obstructing the flow of pedestrian traffic.5 Therefore, the District Court properly found that Frantz’s claim fails.6 Frantz’s Fourth Amendment claim based on the 2006 encounter with Hanejko also fails, as we agree with the District Court that Frantz was not seized and therefore cannot show a violation of the Fourth Amendment.
Frantz also challenged the two incidents on First Amendment grounds. While “spreading one’s religious beliefs or preaching the Gospel through distribution of religious literature ... is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types,” Murdock v. Pennsylvania, 319 U.S. 105, 110, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), the Government may impose reasonable restrictions on the time, place, and manner of speech. See McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009). The District Court found that Gress and Hanejko merely ordered Frantz to move from the middle of the sidewalk, nearer to the curb, so that pedestrians would not be forced to walk into the street or the wall. They did not order Frantz to leave or stop leafleting.
Where speech in a traditional public forum is limited without reference to the subject matter or viewpoint of the speech, as in this case, the challenged restriction is subject to intermediate scrutiny, and must be narrowly tailored to serve a significant governmental interest and leave open options for communication of information. Id. The District Court properly concluded *304this restriction survived intermediate scrutiny. Even under heightened scrutiny, which imposes a more stringent “narrowing” requirement than intermediate scrutiny, the officers’ orders that Frantz move closer to the curb burdened his speech no more than was necessary. See id. at 655 (applying heightened scrutiny to a police directive issued by officers in the field).
Frantz sought to challenge on equal protection grounds the validity of §§ 10-723 and 723.1(1) of the Philadelphia Code, which require handbillers to clear discarded handbills at the end of daily distribution, because the statute does not require commercial vendors to clear litter they generate. However, commercial vendors are not similarly situated to handbillers (and indeed are covered by different sections of the code). The sections challenged by Frantz apply to commercial and non-commercial handbillers. See Phila. Code § 10-723.1 (requiring “[e]very distributor, distribution business, or person who distributes or causes to be distributed commercial or non-commercial handbills upon any public place within the City” to dispose of them at the end of the day). Accordingly, Frantz’s equal protection claim fails.
Frantz also claims that Hanejko “admitted” Frantz’s version of critical events in his answer to the Amended Complaint and his interrogatory responses. Specifically, Frantz asserts that Hanejko improperly failed to deny certain facts in the complaint and should have been barred from testifying to any facts not contained in his interrogatory responses. Because Frantz did not seek to exclude Hanejko’s testimony at trial, we do not consider this belated argument.7 In any event, such a sanction likely would not have been appropriate. See Quinn v. Consol. Freightways Corp. of Delaware, 283 F.3d 572, 576 (3d Cir.2002) (“The exclusion of critical evidence is an extreme sanction, not normally to be imposed absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.”) (quotation marks, citation, and alteration omitted).
Frantz also claims that the allegations in his Second Amended Complaint should be deemed “admitted” due to the officers’ “failure” to file an Answer to that pleading. This argument is frivolous. Frantz filed his Second Amended Complaint after the bench trial to add the first name of Officer Hanejko and clarify that each defendant was sued in his individual capacity. ‡ ‡ ‡
We thus affirm the judgment of the District Court.
. Frantz's initial complaint named as a defendant "Officer Anenko,” but the District Court granted Frantz's unopposed motion for leave to file an amended complaint replacing "Officer Anenko,” who does not exist, with the proper officer, Officer Hanejko.
. This section concerns distribution of commercial and non-commercial handbills on sidewalks, streets, and private property. Section 10-723.1 of the Code states:
Every distributor, distribution business, or person who distributes or causes to be distributed commercial or non-commercial handbills upon any public place within the City, shall, at the end of the daily distribution, clear or cause to be cleared any discarded handbills within a one hundred foot radius of the location where the handbills were distributed.
. The crime of obstructing highways and other public passages in Pennsylvania is defined as follows:
A person, who, having no legal privilege to do so, intentionally or recklessly obstructs any highway, railroad track or public utility right-of-way, sidewalk, navigable waters, other public passage, whether alone or with others, commits a summary offense, or, in case he persists after warning by a law officer, a misdemeanor of the third degree.
18 Pa. Cons.Stat. § 5507(a). The term obstructs “means renders impassable without unreasonable inconvenience or hazard.” Id. § 5507(c).
. Frantz does not appear to challenge the District Court’s finding in favor of the defendants on his malicious prosecution claim. In any event, we find no error in the District Court's ruling on this claim, as probable cause existed for Frantz’s arrest.
. We accept the District Court’s findings of fact on this issue, as they are not clearly erroneous and are supported by the officers' testimony. Frantz spends much of his brief arguing that he could not have interrupted pedestrian traffic given the width of the sidewalk. Whatever the sidewalk’s precise measurements, the District Court credited the officers’ testimony that pedestrians were forced against the wall or into the road because of Frantz’s location on the sidewalk, and we will not disturb this determination. See Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.”).
.While Gress initially issued a citation for a violation of the Philadelphia leafleting ordinance, with the obstructing violation added later by the District Attorney, “[p]robable cause need only exist as to any offense that could be charged under the circumstances.” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994).
. Before trial, Frantz moved to compel an additional response to the interrogatory requesting details from Hanejko on the 2006 incident. The District Court denied this request, and Frantz did not seek to revisit this ruling at trial or preclude Hanejko from testifying.
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OPINION
McKEE, Circuit Judge.
Benjamin Rodriguez challenges the district court’s ruling that he was not eligible for an additional two-point reduction in his base offense level because of his classification as a career offender. For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties, we need not set forth the factual or procedural history in detail. After entering into a plea agreement, Rodriguez argued that he was entitled to a two-point minor role reduction pursuant to U.S.S.G. § 3B1.1 because he had not been an “active player,” and because he “didn’t make any money [from the drug transaction].” App. 14, 17. The government opposed the request because the applicable Guidelines sentencing range was driven by his career offender status under § 4B1.1 of the Guidelines. The district court acknowledged Rodriguez’s minor role in the instant offense, but agreed that § 4B1.1 precluded the two-point reduction Rodriguez was requesting.
The district court accepted the revised PSR, with its recommended three-point *312reduction for acceptance of responsibility. The court also granted the government’s § 5K1.1 motion which reduced Rodriguez’s base offense level by an additional two levels, from 34 to 32. When combined with a criminal history category of VI, this resulted in an advisory sentencing range of 210 to 262 months. The court imposed a sentence of 210 months because of Rodriguez’s relatively minor role, and the government’s recommendation. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). Our review of the district court’s interpretation and application of the Guidelines is plenary. See United States v. DeJesus, 347 F.3d 500, 505 (3d Cir.2003).
III.
As noted at the outset, Rodriguez argues that the district court erred in concluding that his career offender status made him ineligible for an additional two-level reduction in base offense level under § 3B1.1 of the Guidelines. The argument is foreclosed by our decision in United States v. Johnson, 155 F.3d 682 (3d Cir.1998). There, we held that “minor role downward adjustments do not apply to career offenders.” Id. at 685. Johnson remains controlling precedent in this circuit, and cannot be overruled by an appellate panel. See 3d Cir. IOP 9.1 (“Court en banc consideration is required to [overrule precedential opinions].”).
Although Rodriguez acknowledges the holding in Johnson, he argues that Johnson should be reconsidered in light of the Supreme Court’s holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Court invalidated 18 U.S.C. § 3553(b)(1), which made mandatory the imposition of a sentence within the calculated Guidelines range. See 543 U.S. at 259, 125 S.Ct. 738. Rodriguez asserts that since the Guidelines are now advisory, the district court should now also have the discretion to apply the additional two-point reduction for minor participation regardless of Rodriguez’s career offender status. Rodriguez’s reliance on Booker is misplaced.
Following Booker, we held that district courts are to follow a three-step procedure in calculating the appropriate sentence for a defendant. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). The steps are:
(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must “formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation and take[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.”
(3) Finally, they are required to “exercise[ ] [their] discretion by considering the relevant [§ 3553(a) ] factors” in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.
Id. (internal citations omitted) (alterations in original). Rodriguez objects to the district court’s interpretation of the Guidelines in step two. Our case law makes clear that Booker does not apply to the second step of the Guidelines calculation. See United States v. Grier, 585 F.3d 138, 142 (3d Cir.2009) (holding that Booker only gave judges discretion at step three under *313§ 3553(a)). The rule of Booker is not violated by the district court’s ruling here because even though the court correctly concluded that Rodriguez was not eligible for the reduction he sought, the court retained the discretion to impose a sentence below the Guideline range that resulted from the court’s Guideline calculation. The district court was also correct in “tak[ing] into account [this circuit’s] pre-Booker case law,” Gunter, 462 F.3d at 247, in ruling that the minor role adjustment did not apply to career offenders, see Johnson, 155 F.3d at 685. Thus, we conclude that the district court did not err in imposing this sentence and denying the additional two-point downward adjustment in calculating his Guidelines base offense level.
IV.
For the foregoing reasons, we will affirm the decision of the district court.
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OPINION
PER CURIAM.
Shan Mei Zhang petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision to deny her applications for relief from removal. We will deny the petition for review.
Zhang, a native and citizen of China, entered the United States in 2002. Shortly after her arrival, the Immigration and Naturalization Service issued a Notice to Appear charging that Zhang was subject to removal because she was present in the United States without having been admitted or paroled. Through counsel, Zhang conceded that she was removable as charged. She applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
Zhang testified that she left China because she was persecuted on account of her practice of Yi Gan Dao, a religion banned by the Chinese government. Zhang explained that she worked at a government-owned factory. In September 1999, a factory leader required Zhang to report to his office almost every day for a week. The leader wanted Zhang to admit that she practiced Yi Gan Dao. Zhang testified that she was dragged or carried to the office and that she was questioned for two hours each time. Zhang did not admit that she practiced Yi Gan Dao, and, as a result, her wages were withheld for two months. Zhang also stated that she was given only menial tasks at work and that she was laid off in December 1999.
Zhang further testified that, after she lost her job, public security officials, local police officers, or people from the neighborhood went to her home almost every day. She was threatened that she would be arrested if she was not at home. Zhang also stated that she had to report to a neighborhood committee office almost every day until she left the area in December 2001. Zhang stated that her husband’s wages were also withheld. Zhang sold her house in November 2000 and lived with her parents. She paid a snakehead to help her leave China. Zhang lived in Canada for four months before arriving in the United States in April 2002. She fears that she will be arrested if she returns to China because she sought asylum abroad.
The IJ found Zhang not credible. The IJ explained that there were material discrepancies between Zhang’s written asylum application and testimony that were fatal to her reliability as a witness. The IJ stated that Zhang had omitted from her asylum application the facts to which she testified, including that she was required to report to a factory leader to admit her Yi Gan Dao practice, that the leader threatened to dock her pay, that she was carried or dragged to these meetings, that a public security officer went to her home almost every day for two years, that she had to report to the neighborhood committee office for two years, and that her husband’s pay was docked. The IJ noted that Zhang only stated in her written application that she was fired because she was a member of Yi Gan Dao, that she had to stay at home after she lost her job, and that it was difficult for her to find a job. The IJ stated that none of the events that she testified about were inferred in her application.
The IJ also found that Zhang presented inconsistent accounts of why she went to Canada. Although her application suggested that she chose to go to Canada and thereafter found it difficult to live there, her testimony suggested that she intended to stay there briefly before reuniting with *324her husband in the United States. The IJ also noted that Zhang omitted from her asylum application testimony that she was approached in Canada and warned not to apply for asylum. In addition, the IJ stated that Zhang did not present her husband, who was reasonably available, as a corroborating witness. Based on the adverse credibility finding, the IJ concluded that Zhang failed to meet her burden of proof to show that she suffered past persecution in China or has a well-founded fear of persecution should she return to China. The IJ also decided that Zhang had not been tortured in China and that she did not show that it was more likely than not that she would be tortured if removed.
The BIA affirmed the IJ’s denial of asylum, withholding of removal, and CAT relief. The BIA found no clear error in the IJ’s conclusions that Zhang’s testimony contained some inconsistencies, that her asylum application contained material omissions, and that Zhang failed to provide sufficient corroborating evidence. The BIA rejected Zhang’s arguments that her omissions were minor and that her proceedings were conducted in an unfair manner. This petition for review followed.
Zhang does not challenge the adverse credibility determination in her case or the denial of asylum and withholding of removal. Rather, she argues in her brief that the BIA and the IJ applied the wrong legal standard to her CAT claim. Zhang contends that the legal standard applied in the administrative proceedings is contrary to our decision in Silva-Rengifo v. Attorney General, 473 F.3d 58 (3d Cir.2007). We disagree. In Silva-Rengifo, we recognized that an applicant for CAT relief bears the burden of showing that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. Id. at 64. We noted that an applicant must show a likelihood of being subjected to torturous acts inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Id. The meaning of “acquiescence” was at issue in Silva-Rengifo, and we held that acquiescence requires only that government officials remain willfully blind to torturous conduct and breach their legal responsibility to prevent it. Id. at 70.
Zhang appears to contend that the BIA and IJ required that she show that the government had actual knowledge of torturous conduct, the standard we rejected in Silva-Rengifo. However, whether the Chinese government acquiesced to torture was not an issue in this case. In rejecting Zhang’s CAT claim, the IJ stated that none of the treatment Zhang had described rose to the level of torture, and that Zhang did not establish that it was more likely than not that she would be tortured by the Chinese government or someone acting on behalf of the government if removed. The IJ did not find it reasonable to believe that Zhang would be treated worse than she had been treated in the past because of her Yi Gan Dao membership. The IJ also found no evidence supporting Zhang’s claim that she would be arrested and jailed because she had applied for asylum. The BIA agreed with the IJ’s finding that Zhang’s experiences in China did not amount to torture by the government or on its behalf.
There was no need for the IJ and BIA to address whether government officials acquiesced or would acquiesce to torturous acts in this case because Zhang’s claim was that she was persecuted by a government worker, public security officials, and local police. Zhang has not explained how the evidence supports a claim that officials acquiesced or would acquiesce to torturous conduct. Zhang also does not argue that substantial evidence does not support the *325IJ’s conclusions that her prior treatment did not rise to the level of torture and that she did not show that it was more likely than not that she would be tortured if removed.
Accordingly, we will deny the petition for review.
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OPINION
PER CURIAM.
Wen Zheng Zheng petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen. For the reasons that follow, we will deny his petition for review.
I.
Zheng, a native and citizen of China, entered the United States in the early 1990’s. He was placed into removal proceedings, and thereafter sought asylum, withholding of removal, and relief under the Convention Against Torture, all of which were denied by the immigration judge (“IJ”) on January 26, 2005. The Board of Immigration Appeals issued a final order of removal on December 13, 2005. It does not appear that petitioner filed a petition for review at that time.
On December 27, 2005, petitioner’s ex-wife, Ms. Lu, from whom he was divorced in 1999, was granted asylum. Petitioner alleges that he became aware of the grant of asylum to his ex-wife in late February 2006. He then visited his former attorney on March 9, 2006, at which time he was informed that he could file a motion to reopen within 90 days of the BIA’s final order of removal; in his case, on or before March 13, 2006. On Monday, March 13, petitioner met with his ex-wife’s attorney, who reportedly informed him that his ex-wife’s asylum claim had nothing to do with his case and that, in any event, it was too late to prepare and file a motion to reopen. On March 15, 2006, petitioner retained present counsel, who prepared and filed a motion to reopen on his behalf. The motion was filed on June 13, 2006,1 and requested that the BIA reopen petitioner’s removal proceedings pursuant to 8 C.F.R. § 1003.2(c)(3)(iii).2 Petitioner further claimed that the 90-day limitation period should be equitably tolled, as the failure to meet the deadline was due to circumstances out of his control and he exercised due diligence to promptly file the motion.
On December 19, 2006, the BIA issued an order holding that the motion to reopen was untimely, see 8 C.F.R. § 1003.2(c)(2), that petitioner failed to demonstrate that a regulatory exception to the time bar applied, see 8 C.F.R. § 1003.2(c)(3), and that he failed to make a case for the application of equitable tolling, citing Iavorski v. INS, 232 F.3d 124, 129-35 (2d Cir.2000). “J.A. 70.” Furthermore, the BIA declined to consider his motion to reopen sua sponte. See 8 C.F.R. § 1003.2(a). Accordingly, the BIA denied petitioner’s motion to reopen. Through counsel, Zheng timely filed a petition for review.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. *331We review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir.2009). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002) (internal quotations omitted).
III.
Zheng’s motion to reopen was clearly untimely. See 8 C.F.R. § 1003.2(c)(2). While he appears to concede this, he argues that the BIA abused its discretion in refusing to equitably toll the filing deadline. He maintains that the filing deadline may be equitably tolled when a party has exercised due diligence and the circumstances preventing the party from timely filing were beyond his control. The Government responds that the BIA acted well within its discretion as Zheng failed to provide any material evidence in support of equitable tolling and never alleged that he was prevented from filing a timely motion to reopen due to fraud.
Most U.S. Courts of Appeals, including this one, have recognized the availability of equitable tolling in immigration proceedings under certain limited circumstances. See, e.g., Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir.2008) (time period may be extended “in exceptional circumstances”); Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir.2008) (“[D]elay in filing the motion to reopen [must be] due to an exceptional circumstance beyond his control.”) (internal quotations omitted); Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005) (applying the “ ‘old chancery rule’ ” for equitable tolling on the basis of fraud); Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir.2004) (recognizing application of “equitable tolling of deadlines ... during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error”) (internal quotations omitted); Jobe v. INS, 238 F.3d 96, 100 (1st Cir.2001) (“[E]quitable tolling ‘is appropriate only when the circumstances that cause a [party] to miss a filing deadline are out of his hands’ ”) (quoting Salois v. Dime Savings Bank, 128 F.3d 20, 25 (1st Cir.1997)); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.2000) (“In a situation where fraud or concealment of the existence of a claim prevents an individual from timely filing, equitable tolling of a statute of limitations is permitted until the fraud or concealment is, or should have been, discovered by a reasonable person in the situation.”). Even assuming that Zheng acted with the requisite diligence in pursuing his motion to reopen, he still must demonstrate that some external force prevented him from timely filing his motion. Based on the evidence in the record, we cannot conclude that the BIA abused its discretion in concluding that Zheng failed to meet this standard.
The remainder of Zheng’s arguments are directed to the underlying merits of his case. Because we defer to the BIA’s determination that Zheng’s motion to reopen was not timely filed, we have no occasion to reach these arguments at the present time.
Based on the foregoing, we deny the petition for review.
. While it does not make any difference to the outcome in this case, the motion was dated May 10, 2006. It is not clear what transpired in the interim.
. 8 C.F.R. § 1003.2(c)(3)(iii) provides that the 90-day time limit shall not apply to a motion to reopen that is "[a]greed to by all parties and jointly filed.” While petitioner did request that the Government join the motion, the Government declined to do so.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
A federal grand jury indicted Appellant Todor Dragn (hereinafter, “Dragn”) and his co-defendants Georgi Dimirov Koston, Vasil Ivanov Ivanov and Desislava Ivanova Kalaydzhieva with possession with intent to distribute cocaine on the high seas and aiding and abetting in violation of 46 U.S.CApp. § 1903(a) and 18 U.S.C. § 2. A jury convicted Dragn on all counts of the indictment while his co-defendants were *333acquitted. Dragn next filed a motion for judgment of acquittal or in the alternative a new trial. The government opposed, and the District Court denied Dragn’s motion. Dragn was subsequently sentenced to two hundred and ninety two months in prison, five years of supervised release, a thousand dollar fine and a special assessment of one hundred dollars. On appeal, he challenges both this conviction and his sentence.
Dragn has requested that the case be remanded for re-sentencing pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) because the District Court treated the Guidelines as mandatory rather than advisory. Dragn further argues that the ease should be remanded because the District Court failed to properly consider all the 18 U.S.C. § 3553(a) factors. The Government does not oppose a remand for re-sentencing. We agree with Dragn that the District Court erred. At sentencing, Dragn asked the District Court for a downward variance from the Guidelines. The District Court commented that:
the sentencing phase has been very prolonged because of my concern with what I considered to be a very stiff sentence. And my concern suggested that I prolong the sentence to ascertain whether or not there was any meaningful alternative to this harsh sentence. This is probably one of the harshest sentences that I’m faced with, but the fact of the matter is, that my hands seem to be tied. The Congress of the United States has required this type of sentence in this type of offense. Needless to say, the sentence being as harsh as it is reflects the seriousness of the crime, and it certainly will provide a deterrence to others. And it certainly is a protection to the public as a result of the deterrence. I am constrained. I am required to accept the findings of the presentence reports, or the findings as is expressed in the presentence report. I am required and constrained to accept the- offense levels as articulated in the presentence report. I will give you and remand you to the custody of the Bureau of Prisons for the minimum time which the guidelines requires, that being 292 months. You will be placed on supervised release for five years. You will be required to pay a fine of a thousand dollars.
App., 749A-750A. In believing his ‘hands to be tied,’ the District Court clearly believed that the Sentencing Guidelines were mandatory, not advisory. See United States v. Hawes, 523 F.3d 245, 256 (3d Cir.2008) (Weis, J., concurring). The District Court’s statements that it was “required” and “constrained” to hand down the sentence it did were erroneous in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We will vacate Dragn’s sentence and remand for re-sentencing.1
*334Dragn also attacks his conviction, arguing that the Government failed to present sufficient evidence of intent. He specifically argues that the Government failed to prove that he knew there was cocaine hidden on his boat or that he intended to aid and abet his co-defendants. We find his arguments meritless.
When we review a claim that evidence was insufficient to support a conviction, we consider the evidence the light most favorable to the Government and may overturn the jury’s verdict only where the record contains no evidence from which a rational jury could conclude beyond a reasonable doubt that the defendant committed the crimes charged. United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996); see also United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). In challenging the sufficiency of the evidence, Dragn bears a heavy burden. See United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992).
There was ample evidence to convict Dragn. Our review of the record establishes that Dragn owned the vessel used in the cocaine transport. The cocaine itself was found on either end of Dragn’s boat, in compartments traditionally used to store luggage. Upon boarding the vessel, United States Coast Guard personnel noticed that the personal effects of the boat’s occupants were strewn about the cabin instead of being properly stowed in the luggage compartments. The testimony clearly established that Dragn purchased the vessel in question with an eye toward its size and suitability for smuggling. Also, witnesses testified that objects were being thrown overboard as Dragn’s boat was approached by the intercepting Dutch navy ship. It was reasonable, given this testimony, for a jury to conclude that cocaine packages were being thrown overboard.
Additionally, the record bears evidence that Dragn’s boat turned away from the intercepting ship, which supports an inference that Dragn was attempting to evade capture and flee. See e.g. United States v. Garate-Vergara, 942 F.2d 1543, 1548 (11th Cir.1993). Testimony of a United States Coast Guard officer leads to the reasonable conclusion that Dragn’s vessel lacked a legitimate purpose for its voyage. Petty Officer Kousch testified that Dragn’s stated purpose for his voyage — transit to Bulgaria — was nonsensical given the location where Dragn’s vessel was stopped and the type of sailing vessel he was operating. Accordingly, the evidence was clearly sufficient to support his conviction.
As a final challenge, Dragn argues that comments made by the Government in its closing summation were improper and denied him a fair trial. We have considered this argument, and conclude that it lacks sufficient merit to require our addressing it in depth. As to the alleged prosecutorial misconduct, Dragn requested and received a curative instruction from the District Court. Because Dragn did not object to this instruction before the District Court, we review for plain error, and we find that the Government prosecutor’s comments fall well short of an “egregious error or a manifest miscarriage of justice.” United States v. Price, 76 F.3d 526, 530 (3d Cir.1996) (internal quotation marks omitted).
We will affirm Dragn’s conviction. We will, however, vacate his sentence and remand this matter for re-sentencing.
. After the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences for "reasonableness.” See id. at 261-62, 125 S.Ct. 738. Reasonableness review involves our inquiry into "whether the trial court abused its discretion." Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Our review contains both a procedural and a substantive component. Review for procedural reasonableness focuses on whether the District Court committed any error in calculating or explaining the sentence. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Review for substantive reasonableness asks us to "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Here however, since the District Court treated the Sentencing Guidelines as mandatory, it did not undertake a reasonableness analysis. We *334are therefore prevented from conducting our review of whether the sentence was, in fact, reasonable.
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OPINION OF THE COURT
PER CURIAM.
Fang Zheng, a native and citizen of the People’s Republic of China, petitions for review of a decision entered by the Board of Immigration Appeals (“BIA”) denying her motion to reopen removal proceedings. We will deny the petition for review.
Zheng entered the United States without inspection in 2004 and reunited with her husband, a Chinese national who remained in this country despite having been ordered removed in 2002. Zheng herself was placed in removal proceedings, at which time she conceded removability as an alien present without being admitted or paroled, and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Zheng claimed that she and her husband had a daughter in 1999 who allegedly remains in China in the care of in-laws. Zheng states that she evaded the authorities for a short time after becoming pregnant again, but was ultimately found at her mother’s home *341and forced to have an abortion, along with an IUD inserted, in May 2000. After coming to the United States in 2004, Zheng allegedly had the IUD removed, and she and her husband had another daughter, a United States citizen, in 2006. Zheng states that she fears persecution in China on account of now having had a second child, purportedly in violation of that country’s family planning policies.
After a hearing, the Immigration Judge (“IJ”) rejected the credibility of Zheng’s testimony and denied relief. Among other things, the IJ noted that a written certificate introduced by the husband at his removal proceeding to establish Zheng’s forced abortion and IUD insertion was expressly rejected by the IJ in that proceeding as fraudulent. Zheng was unable to authenticate the certificate at her own proceeding, and the IJ found her testimony as to how she had obtained the certificate, and how it had wound up in her husband’s possession for use in connection with his asylum claim, to be inconsistent and lacking in credibility. On September 15, 2008, the BIA dismissed Zheng’s appeal, agreeing with the IJ that Zheng lacked credibility, and further finding that she did not establish a well-found fear of persecution based on having had a second child while in the United States.
Zheng timely filed a motion to reopen with the BIA, submitting what she claimed was previously unavailable evidence to support her alleged fear of persecution, including a letter from her mother-in-law and a certificate from a local village committee in Fujian Province purporting to order that Zheng be sterilized in light of having had two children.
On June 12, 2009, the BIA denied the motion to reopen, holding that Zheng’s submissions were insufficient to justify reopening the proceedings. With respect to the purported notice irom the local village committee and letters from family members, the BIA found this evidence insufficient to meet Zheng’s burden of proof on a motion to reopen, particularly in light of the IJ’s adverse credibility finding. The BIA noted that the purported certificate was not authenticated “in any manner,” and that “it is well-known that Fujian Province, the province from which the respondent comes, has a major problem with false documents.” Zheng timely filed a petition for review in this Court from the order denying her motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of Zheng’s motion to reopen. This Court reviews the denial of a motion to reopen for abuse of discretion, affording “broad deference” to the agency’s decision. Ezeagwuna v. Ashcroft, 825 F.3d 396, 409 (3d Cir.2003). We will not disturb the BIA’s decision unless Zheng shows that it was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).
Zheng argues that the BIA abused its discretion because local officials have ordered her sterilization. Zheng notes that she submitted materials indicating that her child born in the United States will be considered a Chinese citizen in China, and that she will be held in violation of family planning policy. She argues that the BIA erred in failing to accept the authenticity of her sterilization certificate, which she claims is supported by a letter from her mother-in-law, and failed to consider the import of her background materials on Chinese law. Appellant’s Br. at 2-3.
After a review of the record, we cannot conclude that the BIA abused its discretion in denying the motion to reopen. Given the IJ’s determination that Zheng’s testimony lacked credibility, and given that Zheng and her husband had sought to introduce a fraudulent document regarding *342her alleged abortion and IUD in her husband’s removal proceeding, the BIA did not act unreasonably in expecting Zheng to authenticate the purported sterilization certificate submitted in support of the motion to reopen. As the BIA noted, however, the certificate was not authenticated “in any manner,” despite the fact that Zheng claims that her mother-in-law recently obtained the certificate directly from the local village committee. Zheng presumably could have obtained consular authentication pursuant to 8 C.F.R. § 287.6, or authentication in some other form. While we have held that failure to authenticate under § 287.6 does not warrant “per se exclusion of documentary evidence, and a petitioner is permitted to prove authenticity in another manner,” Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.2004), Zheng, as noted, did not authenticate in any manner. The unsworn letter from her mother-in-law regarding the certificate was insufficient. Particularly in view of the fraudulent document previously submitted, and the concern generally with fraudulent documents from Fujian Province, the BIA did not err in rejecting the unauthenticated “certificate” that formed the core of Zheng’s motion to reopen.
As to Zheng’s additional eviden-tiary submissions regarding China’s family planning policies, none of Zheng’s materials post-dates the BIA’s final removal order, and indeed there appears to be no reason why Zheng could not have submitted the materials at the time of her hearing before the IJ. The BIA thus did not err in finding this evidence insufficient to support a motion to reopen. Finally, Zheng had represented in the hearing before the IJ that, upon her removal, she planned to leave her United States child in the care of her mother, who resides here as a lawful permanent resident. The BIA reasonably declined to revisit Zheng’s claimed fear of future persecution insofar as Zheng sought to base the claim on a new, wholly contradictory assertion that she now intends to return to China with her second child.
For the foregoing reasons, we will deny the petition for review.
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OPINION OF THE COURT
PER CURIAM.
Mei Xing Ren petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her petition.
I.
Ren, a native and citizen of China, entered the United States in 2005 without being admitted or paroled. The Government later charged her as removable on that basis. See 8 U.S.C. § 1182(a)(6)(A)(i). Ren concedes removability, but seeks asylum, statutory withholding of removal, and withholding of removal under the Convention Against Torture (“CAT”) on the grounds that she suffered past persecution and faces future mistreatment on account of her imputed political opinion.
According to Ren, whose testimony the Immigration Judge (“IJ”) found credible in all respects, a private development company seized land without compensation in her family’s village, including land owned by her family that it used for its subsistence as well as land owned by other villagers. The Chinese government “sided” with the developer and warned the townspeople not to interfere with the development. Ren’s father, along with other villagers, sent a letter of protest to their Village Committee on July 7, 2002. Her father, again along with other villagers, also participated in a demonstration against the development in December 2002. Ren testified that she was not involved in any of these activities. Soon thereafter, her father learned that Chinese authorities had begun arresting those who took part in the protest, and he went into hiding.
*344Chinese authorities ultimately located and arrested Ren’s father on March 20, 2005. On that day, and on the advice of “others,” Ren went to the prison where her father was being held with money and gifts for a prison official in an effort to secure her father’s release. The prison official, in what Ren refers to as “sexual harassment,” closed the door behind her, pushed her against a table, and tried to remove her clothes. Ren testified that she grabbed an ashtray from the table and hit the official in the face, which caused him to scream and begin bleeding, then fled. When she returned home, she told her mother what had happened and her mother urged her to seek asylum in the United States. Ren contacted a smuggler and left China six days later.
Ren’s father was later tried before a jury and convicted of various crimes against the development company (including charges of breaking and entering, destroying equipment, and blocking construction), charges that Ren insists were fabricated. Ren’s father was sentenced to ten months of imprisonment, which he served, and has since been released. Ren also testified that Chinese authorities continue searching for her at her house, claiming that they want to see her because she attempted to bribe and attacked a public official. Ren claims that these events show that the Chinese government has imputed to her her father’s political opinion, which she characterizes as opposition to the government’s role in the seizure of their land.
The IJ denied relief. The IJ explained that neither the attempted sexual assault nor any deprivation Ren suffered as a result of her family’s loss of land rose to the level of past persecution. The IJ further concluded that there was no evidence that the Chinese government imputed any particular political opinion to her, and that she thus did not face persecution on account of a statutorily-protected ground. Finally, the IJ concluded that Ren had presented no evidence that she would be tortured if returned to China. The BIA essentially agreed with and supplemented these conclusions. In particular, the BIA concluded that, even if the attempted sexual assault had risen to the level of persecution, there was no evidence that it was on account of Ren’s imputed political opinion. The BIA also concluded that her father had been prosecuted for having committed crimes, not persecuted for his political opinion. Ren petitions for review.1
II.
On review, Ren primarily challenges the IJ’s and BIA’s determinations that neither the attempted sexual assault nor any punishment she might face in the future would be on account of any statutorily protected ground — in this case, on account of any political opinion that the Chinese government imputes to her. See Jian Zhau Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.2008); 8 U.S.C. §§ 1101(a)(42), 1158(b) & 1231(b)(3). Ren, however, cites no evidence of record that she contends the IJ *345or BIA overlooked, and cites no evidence that compels a conclusion contrary to the one they reached. Instead, she argues that the Chinese government has imputed a political opinion to her from the mere fact that she tried to help her father “get out of the government’s persecution” and “fought” with the prison official. (Petr.’s Br. at 15.) She relies for that proposition on Chavarria v. Gonzalez, 446 F.3d 508 (3d Cir.2006), but that case is inapposite.
In Chavarria, we held that a political opinion had been imputed to an otherwise apolitical individual because: (1) he came to the aid of women whom members of a paramilitary group had attacked and who turned out to be members of a political organization opposed to the government, see id. at 513, 518; (2) the same attackers later surveilled him at his home, see id. at 518-19; and (3) he was attacked and threatened with death, with the comment “[w]e are going to leave you alone today, but if we ever catch you again you won’t live to talk about it,” id. at 519. Thus, there was no indication that the petitioner in Chavarria was surveilled and attacked for any reason other than the assistance he rendered to people who turned out to be political dissidents.
In this case, by contrast, there is no evidence that Ren was assaulted or that authorities are seeking her because the Chinese government imputes her father’s political opinion to her. Ren testified that, unlike her father, she never took part in the villagers’ protest against the developer’s actions. (A.144-45.) She did not testify that she expressed any political opinion during her visit to the police station or to anything else suggesting that the attempted assault was politically motivated. (A.145-46.) To the contrary, she testified that, when the prison official closed the door behind her, she asked him what he was doing and “he said a man and a woman inside a room. What, what do you think.” (A.146.) Moreover, she testified that, when authorities sought her at her home, they told her mother that they did so “because I had intention to bribe official, and, also, attack official.” (A.147.) This testimony constitutes substantial evidence in support of the IJ’s and BIA’s conclusions that Ren neither suffered nor faces mistreatment on account of any political opinion the Chinese government imputes to her, and our review of the record confirms that Ren presented no evidence that compels a contrary conclusion. For that reason, we may not disturb the denial of her applications for asylum or statutory withholding of removal.
Finally, Ren challenges the IJ’s and BIA’s conclusion that she failed to show it more likely than not that she would be tortured on return to China. See Gomez-Zuluaga, 527 F.3d at 349. Once again, however, Ren cites no evidence of record that compels a contrary conclusion, and our review of the record confirms that there is none. Accordingly, we will deny her petition for review.
. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). “Because the BIA adopted some of the findings of the IJ and made additional findings, we will review the decisions of both the BIA and IJ.” Gomez-Ziluaga v. Att’y Gen., 527 F.3d 330, 339 (3d Cir.2008). "We defer to the BIA's findings if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Sioe Tjen Wong v. Att'y Gen., 539 F.3d 225, 230 (3d Cir.2008) (citations and internal quotation marks omitted). “Under the deferential substantial evidence standard, the BIA’s findings 'must be upheld unless the evidence not only supports a contrary conclusion, but compels it.' ” Id. (citations omitted). We have plenary review over its conclusions of law, subject to established principles of deference on agency review. See id. at 231.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Martin sustained severe injuries to his left hand while operating a saw at his place of employment. The saw was at least fifty years old and had been sold by the original buyer to the previous owner of the company. that employed Martin. The saw did not have a safety guard on the blade. Martin claims that the condition of the saw caused his injuries, making Powermatic Corporation strictly liable, negligent for failure to warn, or in breach of an express warranty or implied warranty of merchantability.
Generally, the sale or transfer of assets from one company to another is not a legal basis for asserting successor liability against the purchaser for the torts of the transferor. Polius v. Clark Equipment Co., 802 F.2d 75, 77 (3d Cir.1986). The District Court correctly concluded that ownership of the assets of the Powermatic Division was transferred to JET Equipment and Tools, Inc. through an asset purchase agreement with DeVlieg-Bullard, Inc., during the time that DeVlieg-Bullard was in the midst of reorganization under Chapter 11 of the Bankruptcy Code. Moreover, we agree that there is no record evidence that Powermatic fell within any of the exceptions to the general rule of successor nonliability that we describe in Po-lius. The asset purchase agreement expressly disclaimed all product liability claims against the Powermatic Division of DeVlieg-Bullard, Inc., for products sold before the closing date of the agreement. We also agree that the evidence does not support a defacto merger finding.
With respect to the implied warranty claims, Martin essentially challenges JET’s argument before the District Court that an implied warranty claim cannot be raised *347where strict liability is not actionable. However, the District Court’s decision was not based upon this legal argument. Instead, the District Court dismissed this claim on the basis that implied warranties were expressly and conspicuously excluded in the operating instructions manual of the machine in question. Martin’s appeal does not dispute this. For this reason, we must conclude that the District Court properly dismissed this claim.
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OPINION
WEIS, Circuit Judge.
Plaintiff Deborah Willett, Administratrix of the Estate of David P. Willett, her son, appeals an order granting summary judgment to the defendant, Allstate Insurance Company, which had denied the plaintiffs claim for underinsured motorist benefits. Finding no error, we will affirm.
David Willett, age 18 and a resident of Pennsylvania, died as a result of an auto accident on June 29, 2006, in Waldo, Maine. He was a passenger in the car operated by Maine resident Thomas Piers-iak, whose negligence was the sole cause of the crash. Plaintiff settled the claim with Piersiak’s auto insurance carriers for $454,249. That settlement was approved by the Court of Common Pleas of Chester County, Pennsylvania, the decedent’s domicile, after a hearing on July 9, 2007.1
Plaintiff then filed this suit, seeking to recover $100,000 in underinsured motorist benefits under Mrs. Willett’s auto insurance policy with Allstate. Contending that the estate had already received all damages to which the decedent was entitled under the policy and, therefore, Piersiak was not an “underinsured motorist,” Allstate denied the claim. Both parties moved for summary judgment, which was entered in favor of Allstate. Plaintiff timely appealed.2
The parties stipulated that, although Piersiak had over $795,000 in additional liability coverage, the settlement of $454,249 represented the maximum recoverable damages under Maine law.3 Allstate also conceded that the decedent was an insured under Mrs. Willett’s policy.
That policy’s underinsurance provision satisfies the requirements of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1701 et seq. Specifically, the policy provides, “we will pay damages ... for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured auto.” An underinsured auto is defined in the policy as “[a] motor vehicle which has bodily injury liability protection ... but its limit for bodily injury liability is less than the damages the insured person is legally entitled to recov*351er.” This language essentially mirrors the MVFRL.4
The Allstate policy was issued in Pennsylvania to a Pennsylvania resident. The interpretation of its contractual provisions is a matter of Pennsylvania law. See, e.g., McMillan v. State Mut. Life Assur. Co. of Am., 922 F.2d 1073, 1074-75 (3d Cir.1990) (“[W]e look to the law of Pennsylvania, the state where the policy of insurance was contracted and delivered, for guidance in construing [the] policy.”).
The issue in this case is, therefore, the meaning of the policy language limiting recovery to damages that decedent was “legally entitled” to recover from Piersiak. This phrase clearly and unambiguously states that coverage depends upon the decedent’s legal right to damages from Piers-iak. If decedent has no right to recover damages from Piersiak, then Allstate has no responsibility under its policy. If decedent has a right to recover only partial damages from Piersiak, then Allstate is required to pay only that amount. In short, Allstate’s contractual liability, as established by the provisions of its policy, is derivative of Piersiak’s tort liability.
Piersiak’s tort liability is determined by Maine law. See Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970) (Delaware law would determine amount of tort damages where Pennsylvania resident was injured in Delaware by negligence of Delaware driver while riding in car registered in Delaware). The fact that decedent was domiciled in Pennsylvania neither permits plaintiff to invoke Pennsylvania law to resolve Piersiak’s liability in tort, nor defeats damage limitations imposed by Maine law. And, nothing in Allstate’s policy provides for the determination of Piersiak’s tort liability based on Pennsylvania contractual law.
No conflict of laws issue bears on this question because Piersiak was not a party to any suit filed by the decedent in Pennsylvania. Accordingly, Maine tort law controls the “legally entitled” limitation in Allstate’s policy.
The plaintiffs reliance on Kmonk-Sullivan v. State Farm Mutual Automobile Insurance Co., 567 Pa. 514, 788 A.2d 955 (2001), is misplaced. In that case, the Pennsylvania Supreme Court held that the MVFRL overrode a Pennsylvania statutory limit on damages recoverable from an accident caused by a government-owned vehicle. Consequently, in Pennsylvania, a government bus was “underinsured” because the amount of damages recoverable by plaintiffs was restricted by Pennsylvania statute.
However wide-ranging its discussion, Kmonk-Sullivan’s holding is limited to the effects of statutory damages caps imposed by Pennsylvania law for injuries incurred in Pennsylvania due to the negligence of a Pennsylvania agent. It did not purport to affect, nor could it affect, the tort law of any other state. See id. at 962 (summarizing its holding that “the insurance policies, which purported to apply a more restrictive definition of underinsured motor vehicles, are inconsistent with the [MVFRL], Consequently, the government vehicle exclusion [in the policy] cannot stand.”). Kmonk-Sullivan is irrelevant to the issues in the case before us.
As plaintiff concedes, the estate has already recovered the maximum amount of damages available from the tortfeasor, Piersiak. That the estate might have been *352“legally entitled” to additional non-economic damages had the accident happened elsewhere than Maine does not, under the MVFRL or the terms of the Místate policy, entitle plaintiff to underinsurance motorist benefits here. Accordingly, the District Court was correct in holding that plaintiff was not “legally entitled” to un-derinsurance motorist benefits.
The order granting summary judgment to Místate will be affirmed.
. Under Pennsylvania law, court approval is required for settlement of death claims. Pa. R.C.P. 2206(a).
. See Nazay v. Miller, 949 F.2d 1323, 1328 (3d Cir.1991) (denial of summary judgment ap-pealable when “raised in tandem with an appeal of an order granting a cross-motion for summary judgment”). The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction under 28 U.S.C. § 1291.
.See Me.Rev.Stat. Ann. tit. 18-A § 2-804(b) (2000) (in action for wrongful death, “jury may give damages not exceeding $400,000 for the loss of comfort, society and companionship of the deceased”).
. See 75 Pa.C.S.A. § 1731(c) ("[u]nderinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles”).
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OPINION OF THE COURT
FISHER, Circuit Judge.
The Estate of Charles L. Grimes appeals an order of the District Court affirming a 9019 motion granted by the Bankruptcy Court approving modifications to a settlement agreement of a derivative suit filed on behalf of Riverstone Networks, Inc. (“RNI”) against its former officers and directors. On appeal, the Estate contends that the Bankruptcy Court lacked subject matter jurisdiction to approve the amendment to the settlement agreement and incorrectly allowed the settlement to be amended without the Estate’s consent. For the reasons set forth herein, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
This case began with the filing of a derivative action on behalf of RNI in the United States District Court for the Northern District of California against the corporation’s former officers and directors. The derivative action was settled and the court gave its preliminary approval of the Settlement Agreement subject to the requirements of Fed.R.Civ.P. 23.1. Charles Grimes, a large shareholder of RNI, objected to final approval of the settlement because of the $1.75 million in fees to be paid to plaintiffs counsel and because of the “unitary” nature of the settlement agreement.1 The District Court approved the settlement and Grimes appealed to the United States Court of Appeals for the Ninth Circuit on August 11, 2005.
On February 7, 2006, RNI filed for protection under Chapter 11 of the Bankruptcy Code.2 The Ninth Circuit denied a motion filed by both RNI and the plaintiffs in the derivative action to dismiss Grimes’ appeal as moot on March 17, 2006. Soon thereafter, acting pursuant to the automatic stay provision of the bankruptcy code, the Ninth Circuit issued a stay of Grimes’ appeal on March 29, 2006, and that stay remains in effect.
Plaintiffs in the derivative suit and RNI then sought to change the terms of the Settlement Agreement by requiring plaintiffs’ attorneys to refund $950,000 of their fees to RNI’s Bankruptcy Estate. On June 8, 2006, the RNI filed a motion pursuant to Bankruptcy Rule 9019 seeking approval of the amendment to the settlement agreement.
Grimes objected before the Bankruptcy Court asserting that the Court lacked jurisdiction to vacate or modify the California District Court’s First Settlement order; that as the only appellant in the Ninth Circuit appeal, Grimes’ consent was needed to settle that suit; and that Debtors did not show that the proposed settlement was reasonable. The Bankruptcy *354Court granted the 9019 motion approving the amended settlement on August 23, 2006. Grimes appealed to the District Court.
On September 12, 2006, the Bankruptcy Court entered a Confirmation Order confirming the Debtors’ plan of reorganization and liquidation. The Confirmation Order enjoins all ongoing and future actions against the Estate. Accordingly, RNI moved to dismiss the District Court appeal as violative of the Confirmation Order. The District Court denied the motion to dismiss without prejudice on September 22, 2008, and entered an order affirming the Bankruptcy Court’s 9019 ruling on March 26, 2009. This timely appeal followed.3
II.
The subject matter jurisdiction of the Bankruptcy Court is contested by the Estate. We find that the bankruptcy court had subject matter jurisdiction pursuant to 28 U.S.C. § 1334 which provides the Bankruptcy Court with jurisdiction over all property of the debtor’s estate. The District Court had jurisdiction over the appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(1) and Fed. R. Bank. P. 8001. We have jurisdiction under 28 U.S.C. § 158(d)(1) and 28 U.S.C. § 1291.
We exercise plenary review over whether the Confirmation Order bars the Estate from pursuing this appeal, In re Exide Techs., 544 F.3d 196, 205 (3d Cir.2008), whether the Bankruptcy Court had subject matter jurisdiction, Quattrone Accountants, Inc. v. I.R.S., 895 F.2d 921, 924 (3d Cir.1990), and whether the Bankruptcy Court correctly granted the 9019 Motion, In re Exide Techs., 544 F.3d at 205.
III.
RNI claims that the Confirmation Order entered by the Bankruptcy Court approving its plan of reorganization and liquidation bars the Grimes Estate from bringing this appeal. Because a finding that the appeal is barred would moot all other issues in this appeal, we will consider this issue first.
Paragraph 49 of the Confirmation Order provides in pertinent part:
“On and after the Confirmation Date, except as provided in the Plan or this Confirmation Order, all Persons that have held, currently hold or may hold a Claim, Equity Interest, or other debt or liability that is addressed in the Plan are permanently enjoined from taking any of the following actions on account of any such Claims, Equity Interests, or other debts or liabilities, other than actions brought to enforce any rights or obligations under the Plan: (i) commencing or continuing in any manner any action or other proceedings against the Debtors or the Reorganized Debtors or their respective properties that was or could have been commenced prior to the Effective Date[.]”
(Supp.App.84-85.)
There is no question that Grimes held an equity interest in RNI and that he maintained an action or proceeding at the time the Bankruptcy Court entered its confirmation order. Additionally, the appeal clearly addresses a debt of the bankruptcy estate to the extent it challenges the attorneys’ fee disbursement in the Settlement Agreement. “Pursuant to 11 *355U.S.C. § 1141(a), all parties are bound by the terms of a confirmed plan of reorganization.” First Union Comm. Corp. v. Nelson, Mullins, Riley, & Scarborough, 81 F.3d 1310, 1315 (4th Cir.1996) (citing In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 463 (6th Cir.1991)). Therefore, under the plain language of the Confirmation Order, Grimes is enjoined from bringing this appeal.
Grimes argues that the Bankruptcy Court did not intend for the Confirmation Order to bar appellate review of its approval of the 9019 Motion. Grimes’ argument runs counter to the plain language of the Confirmation Order, which enjoins both pending and future actions. The Bankruptcy Court’s approach is consistent with our jurisprudence respecting the finality of bankruptcy confirmation orders. We have emphasized that:
“[T]he purpose of bankruptcy law and the provisions for reorganization could not be realized if the discharge of debtors were not complete and absolute; that if courts should relax provisions of the law and facilitate the assertion of old claims against discharged and reorganized debtors, the policy of the law would be defeated; that creditors would not participate in reorganizations if they could not feel that the plan was final; and that it would be unjust and unfair to those who had accepted and acted upon a reorganization plan if the court were thereafter to reopen the plan and change the conditions which constituted the basis of its earlier acceptance.”
In re Penn Central Transp. Co., 771 F.2d 762, 767 (3d Cir.1985).
Penn Central ensures that a reorganization plan that was the result of a delicate balance between parties of divergent interests either succeeds or fails in full, rather than being dismantled by piecemeal litigation, leaving parties bound by some portions of the Confirmation Order and not others. In light of Penn Central, it is perfectly logical that the Bankruptcy Court would intend to enjoin future appellate proceedings regarding the 9019 Order; a reversal of its ruling on an essential term of the Debtors’ Plan of Reorganization would undermine the finality of its Confirmation Order.
In a number of cases decided after Penn Central, we have held that a Confirmation Order precluded a party from attacking the validity of individual components of the reorganization plan. See In re PWS Holding Corp., 303 F.3d 308, 315 (3d Cir.2002); In re Szostek, 886 F.2d 1405, 1413 (3d Cir.1989). As in those cases, the Confirmation Order here by its plain terms bars the Grimes Estate from proceeding with this appeal.
We also disagree with Grimes’ position that the Bankruptcy Court lacked the authority to enjoin an appeal of its own order. The Confirmation Order enjoins only collateral appeals. It does not, and cannot, preclude direct appeal of the Confirmation Order as expressly provided for by statute. 28 U.S.C. § 158(a)(1); Fed. R. Bank. P. 8001. Grimes had an avenue of appeal open to him: he could have objected to the Confirmation Order and appealed that Order to the District Court. His failure to do disposes of this appeal.
Because we agree with RNI that the Confirmation Order bars the Estate from proceeding with this action, we need not consider the merits of the appeal.
IV.
For the foregoing reasons, the judgment of the District Court will be affirmed.
. In a unitary settlement, the fee agreement is included as a term of the settlement, and the reviewing Court can only approve or disapprove the entire settlement.
. RNI officially changed its name to RNI Wind Down Corporation on May 24, 2006.
. On March 6, 2007, the Estate of Charles L. Grimes filed a Suggestion of Death on Record in the District Court noting the death of plaintiff Charles L. Grimes during the pendency of the action and the substitution, pursuant to Federal Rule of Civil Procedure 25(a)(1), of the Estate as the party in interest.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
On January 23, 2008, a federal grand jury in the Eastern District of Pennsylvania returned a superseding indictment charging Sherman Kemp and ten others with, inter alia, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Kemp filed a motion to dismiss the indictment on double jeopardy grounds. The United States District Court for the Eastern District of Pennsylvania issued an order on July 20, 2009 denying the motion without conducting an evidentiary hearing. *357Kemp appeals the District Court’s order. We will affirm.
I.
The issue presented involves two federal indictments. The first indictment (the “Maryland indictment”), returned in the District of Maryland on June 28, 2007, contained four counts: Count One charged Kemp and one co-defendant, Isaac Gomez, with conspiracy to distribute cocaine and possession with intent to distribute, in violation of 21 U.S.C. § 846; Count Two charged Kemp with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); Count Three charged Kemp with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and Count Four charged Kemp with possession of 500 grams or more of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Kemp pled guilty to all four counts on July 17, 2008, and was sentenced to fifteen years imprisonment.
The factual basis of Counts One and Four are relevant to this appeal. Count One charged Kemp and Gomez with conspiring to distribute cocaine “in the District of Maryland and elsewhere” from March 2007 through about June 2007. According to the plea agreement, Kemp would travel to New York City to purchase kilograms of cocaine from Gomez, which Kemp then sold to lower-level dealers in Baltimore. Count Four charged Kemp with only the substantive crime of possession with intent to distribute on or about September 11, 2002. The plea agreement stated that Kemp was attempting to deliver cocaine in Baltimore on this date. After Kemp parked his car at 3832 Kenyon Avenue, a location in the city where he stored cocaine, law enforcement officers attempted to arrest him. Kemp eluded arrest and eventually escaped. The police subsequently executed a search warrant at this address and recovered over 3000 grams of cocaine and a scale used for weighing cocaine. As noted, Kemp pled guilty to all counts, including Counts One and Four.
The second indictment (the “Pennsylvania indictment”) was issued by a grand jury in the Eastern District of Pennsylvania on January 23, 2008. Count One — the only count of the fifteen-count indictment with which Kemp was charged — alleged that Kemp and ten co-defendants conspired to distribute cocaine from about 1998 through about 2007. According to the indictment, the co-defendants were part of a multi-million dollar cocaine distribution organization based throughout the Philadelphia metropolitan area, New Jersey, and Maryland. The organization, called the Phillips Cocaine Organization (the “PCO”), was founded and led by Maurice Phillips. The indictment alleged that Kemp joined the conspiracy in 1999 and became a leader of the PCO, eventually reporting directly to Phillips. Kemp’s aforementioned cocaine possession on September 11, 2002, which was the basis of Count Four in the Maryland indictment, was among more than one hundred overt acts listed in the Pennsylvania indictment and allegedly committed in furtherance of the conspiracy.
Kemp filed a motion to dismiss the Pennsylvania indictment on double jeopardy grounds, contending that the conspiracy charged was in law and in fact the same offense as the conspiracy charged in Count One of the Maryland indictment. On July 15, 2009, the District Court denied Kemp’s motion without conducting an evidentiary hearing. In a footnote to its order, the court cited United States v. Liotard, 817 F.2d 1074 (3d Cir.1987). Kemp filed a *358timely Notice of Appeal.1
II.
The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Double jeopardy attaches when it is “shown that the two offenses charged are in law and in fact the same offense.” United States v. Felton, 753 F.2d 276, 278 (3d Cir.1985) (citing United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). A defendant is entitled to a pre-trial evidentiary hearing if he makes a non-frivolous showing of double jeopardy. Liotard, 817 F.2d at 1077. Once a defendant makes this showing, “the burden of persuasion shifts to the government to prove by a preponderance of the evidence that the two indictments charge the defendant with legally separate crimes.” Id. (citing Felton, 753 F.2d at 278).
To ensure a defendant’s constitutional right against double jeopardy is adequately protected in the context of successive conspiracy prosecutions, we apply a “totality of the circumstances” test in which we consider (1) the “locus eriminis” (location) of the two alleged conspiracies; (2) the degree of temporal overlap between the conspiracies; (3) the overlap of personnel between the conspiracies, including unin-dicted co-conspirators; and (4) the similarity in the overt acts charged and the role played by the defendant in each indictment. United States v. Smith, 82 F.3d 1261, 1267 (3d Cir.1996) (citing Liotard, 817 F.2d at 1078). We have not applied these factors rigidly, id., focusing instead on the overarching inquiry of “whether two groups of conspirators alleged by the government to have entered separate agreements are actually all committed to the same set of objectives in a single conspiracy.” Id. at 1271.
Kemp argues he has made a non-frivolous showing with respect to each factor of the Liotard test. Specifically, he contends that both indictments accused him of conspiring to distribute cocaine in Maryland in 2007, which meets the first and second factors, and they both averred he possessed cocaine and eluded police on September 11, 2002, which meets the fourth factor. With respect to the third factor, Kemp argues he was precluded from demonstrating an overlap of personnel between the two conspiracies because the court did not conduct an evidentiary hearing. In contrast, the government claims the two conspiracies charged were vastly different — besides the slight temporal overlap and the fact that the two indictments referred to Kemp’s cocaine possession on September 11, 2002, the conspiracies were unrelated. We agree.
First, although Kemp’s alleged involvement in both conspiracies was centered in Baltimore, the scope of the conspiracies differed significantly. The Pennsylvania indictment alleged that the conspiracy involved multiple locations throughout the East Coast, while the Maryland conspiracy involved only New York City and Baltimore.
Similarly, the slight temporal overlap between the conspiracies does not provide *359much support under the second Liotard factor. The Pennsylvania conspiracy allegedly spanned from 1998 through 2007, with Kemp’s involvement beginning in 1999. The Maryland conspiracy, however, ran only from March 2007 through about June 2007.
Third, Kemp’s argument that he was unable to show an overlap of personnel between the conspiracies because the District Court did not conduct an evidentiary hearing is unavailing. The factual basis of Kemp’s guilty plea to the Maryland charges demonstrates that he purchased cocaine from Gomez in New York and supplied it to dealers in Baltimore. Although there were unindicted co-conspirators, Kemp’s plea agreement shows that they were limited to lower-level dealers in the Baltimore area. In contrast, the Pennsylvania indictment charged Kemp and ten co-defendants with conspiring with each other and numerous unindicted co-conspirators. Gomez was not charged in the Pennsylvania indictment, and there is no evidence that he was involved in any of the more than one hundred alleged overt acts. Because Kemp has not pointed to anything in the record showing an overlap of membership between the conspiracies, he is not entitled to an evidentiary hearing simply by claiming he would present the evidence at that time.
Finally, Kemp has failed to present evidence that the overt acts and the alleged role he • played in each conspiracy were similar. Although both conspiracies were based on the distribution of cocaine, there were no overlapping overt acts in the indictments. Kemp’s reference to the September 11, 2002 incident is inapposite. The Maryland indictment charged Kemp with the substantive crime of possession with intent to distribute based on this incident, while the Pennsylvania indictment simply used Kemp’s admitted conduct on this date as one of many overt acts in furtherance of the alleged conspiracy. Moreover, the Pennsylvania indictment alleged that Kemp was a leader of the PCO and managed drug trafficking in the Baltimore area, while the factual basis of Kemp’s guilty plea in the Maryland case stated that he served only as a middleman between Gomez, a New York supplier, and lower-level dealers in Baltimore.
III.
For the foregoing reasons, Kemp has failed to make a non-frivolous showing of double jeopardy. Accordingly, we will affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. A pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is within the "collateral order” exception to the final order requirement. Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Smith, 82 F.3d 1261, 1265 (3d Cir.1996). Accordingly, we have jurisdiction under 28 U.S.C. § 1291. Our review of double jeopardy challenges is plenary. Smith, 82 F.3d at 1265 (citing United States v. Ciancaglini, 858 F.2d 923, 926 (3d Cir.1988)).
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angus Whitney appeals the district court’s order granting the Government’s motion to dismiss for lack of jurisdiction. *363We have reviewed the record and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss the appeal for the reasons stated by the district court. Whitney v. United States Navy, No. 2:09-cv00201-RAJ-TEM (E.D.Va. July 28, 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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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raheem Muhammad seeks to appeal the district court’s order 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, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Muhammad 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 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:
Martin Delgado, a federal prisoner, appeals from the district court’s order denying his second 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction of sentence based on the reduced offense levels for crack cocaine offenses. Because Delgado has not shown that the district court’s previous disposition of this motion is clearly erroneous or would work a manifest injustice, the court’s prior holding is the law of the case, and Delgado may not relitigate that issue in a duplicative motion. See United States v. Aramony, 166 F.3d 655, 661 (4th Cir.1999). Accordingly, we affirm the district court’s order on that basis. 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:
James E. Downing 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. Downing, No. 4:05-cr-00052-H-2 (E.D.N.C. Aug. 4, 2009). We dispense *379with 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:
Harold Steven Jackson appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Jackson, No. 8:06-er-00306-PJM-1 (D.Md. Aug. 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:
Javen Kiernan appeals the district court’s order dismissing with prejudice 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. See Kiernan v. McKinley, No. 1:09-cv-00387-LMB-TCB, 2009 WL 2175639 (E.D.Va. July 20, 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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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martin Delgado, a federal prisoner, appeals from the district court’s order denying his second 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction of sentence based on the reduced offense levels for crack cocaine offenses. Because Delgado has not shown that the district court’s previous disposition of this motion is clearly erroneous or would work a manifest injustice, the court’s prior holding is the law of the case, and Delgado may not relitigate that issue in a duplicative motion. See United States v. Aramony, 166 F.3d 655, 661 (4th Cir.1999). Accordingly, we affirm the district court’s order on that basis. 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:
James E. Downing 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. Downing, No. 4:05-cr-00052-H-2 (E.D.N.C. Aug. 4, 2009). We dispense *379with 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:
Anthony Allen Quinn appeals the district court’s order denying his motion for an evidentiary hearing to adjudicate the validity of his guilty plea. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Quinn, No. 1:01-cr-00089-LMB-1 (E.D. Va. filed July 30, 2009; 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/8476446/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Georgia Green appeals the district court’s order denying relief on her 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. See Green v. Fasenbaker, No. 8:08-cv-00654-PJM (D.Md. July 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
|
11-05-2022
|
https://www.courtlistener.com/api/rest/v3/opinions/8476448/
|
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Steven Jackson appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Jackson, No. 8:06-er-00306-PJM-1 (D.Md. Aug. 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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01-04-2023
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11-05-2022
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