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https://www.courtlistener.com/api/rest/v3/opinions/8476536/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476451/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Levelt Francois appeals the district court’s order denying his motion for production of documents and his motion to have the district court review the government’s failure to file a Fed.R.Crim.P. 35(b) motion. See Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). We have reviewed the record and find that Francois failed to make a sufficient showing to warrant a Wade review. See id. at 186, 112 S.Ct. 1840; United States v. Wallace, 22 F.3d 84, 87 (4th Cir.1994). Accordingly, we affirm the district court’s denial of Francois’ motions. 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/8476453/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jovito Matas Binoya, II, appeals the district court’s order denying his “Motion to Compel; Motion to Request Specific Performance of the Government to Grant Reduction of Sentence for Substancial [sic] Assistance.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Binoya, No. 1:07-cr-00319-TSE-1 (E.D. Va. filed Aug. 26, 2009; entered Aug. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
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/8476455/
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*384Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Rosario appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rosario v. Wake County Sheriff’s Office, No. 5:07-ct-03171-BO (E.D.N.C. Sept. 1, 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/8476457/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Bonilla appeals the district court’s order denying his motion captioned “Counter Claims by Luis Bonilla Real Party Motion Filed Under All Writ Act of 28 U.S.C. § 1651.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bonilla, No. 1:95-cr-00522-LMB-2 (E.D. Va. filed Aug. 24, 2009; entered Aug. 25, 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/8476461/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clinton Mitchell, III, appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Mitchell, No. 7:97-cr-00057-BR-1, 2009 WL 3348284 (E.D.N.C. filed Oct. 14, 2009 & entered Oct. 15, 2009). We dispense *397with 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/8476463/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Gibson, Sr., seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis.* He also appeals the district court’s text order denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Gibson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Gibson’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously *398discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h). Gibson’s claim does not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
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.
To the extent Gibson challenges the district court's alternative finding that, if the motion were construed as a true Rule 60(b) motion, see Gonzalez v. Crosby, 545 U.S. 524, 530-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), he failed to demonstrate extraordinary circumstances, we find that Gibson failed to meet the standard for obtaining a certificate of appeal-ability.
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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/8476465/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dalaino Turner seeks to appeal the district court’s denial of his motion for appointment of counsel to file a motion for reduction of sentence pursuant to 18 U.S.C. § 3582 (2006). This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Turner seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Miller v. Simmons, 814 F.2d 962 (4th Cir.1987). Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476537/
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476452/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Levelt Francois appeals the district court’s order denying his motion for production of documents and his motion to have the district court review the government’s failure to file a Fed.R.Crim.P. 35(b) motion. See Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). We have reviewed the record and find that Francois failed to make a sufficient showing to warrant a Wade review. See id. at 186, 112 S.Ct. 1840; United States v. Wallace, 22 F.3d 84, 87 (4th Cir.1994). Accordingly, we affirm the district court’s denial of Francois’ motions. 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/8476454/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jovito Matas Binoya, II, appeals the district court’s order denying his “Motion to Compel; Motion to Request Specific Performance of the Government to Grant Reduction of Sentence for Substancial [sic] Assistance.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Binoya, No. 1:07-cr-00319-TSE-1 (E.D. Va. filed Aug. 26, 2009; entered Aug. 27, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
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/8476456/
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*384Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Rosario appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rosario v. Wake County Sheriff’s Office, No. 5:07-ct-03171-BO (E.D.N.C. Sept. 1, 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/8476458/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Bonilla appeals the district court’s order denying his motion captioned “Counter Claims by Luis Bonilla Real Party Motion Filed Under All Writ Act of 28 U.S.C. § 1651.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bonilla, No. 1:95-cr-00522-LMB-2 (E.D. Va. filed Aug. 24, 2009; entered Aug. 25, 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/8476460/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher S. Henry appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) action under 28 U.S.C. § 1915(e)(2)(B) (2006). Henry also appeals the district court’s order denying his subsequent Fed. R.Civ.P. 59(e) motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Henry v. Baskerville, No. 3:08-cv00561-HEH, 2009 WL 3459474 (E.D.Va. Sept. 4, 2009 & 2009 WL 3413633, Oct. 22, 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/8476464/
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard Gibson, Sr., seeks to appeal the district court’s order treating his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis.* He also appeals the district court’s text order denying reconsideration. The orders are not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Gibson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Gibson’s notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously *398discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h). Gibson’s claim does not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
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.
To the extent Gibson challenges the district court's alternative finding that, if the motion were construed as a true Rule 60(b) motion, see Gonzalez v. Crosby, 545 U.S. 524, 530-32, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), he failed to demonstrate extraordinary circumstances, we find that Gibson failed to meet the standard for obtaining a certificate of appeal-ability.
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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/8476590/
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
This is an action brought under 42 U.S.C. § 1983 and state law alleging that the City of Wilmington, Delaware, and Wilmington Police Detective Michael R. Lawson, Jr., (collectively, “Defendants”) violated the Fourth and Fourteenth Amendments, and committed state law false imprisonment and battery, when Lawson and an armed SWAT team of the Wilmington Police Department executed an allegedly invalid search warrant by entering the home of Plaintiffs DeWayne Walker, Sr., his wife, Karen Walker, their teenaged son, DeWayne Walker, Jr., and their two-year-old daughter (collectively, “Plaintiffs”), seizing Plaintiffs, and searching the premises. The warrant authorized the search for and seizure of evidence relating to a recent homicide that the police believed had been committed by Dwayne A. Walker, whose date of birth was 12/10/82. As Defendants now acknowledge, Dwayne A. Walker is unrelated to Plaintiffs and has never been to their home at 118 Dutton Drive, New Castle, Delaware.
The District Court granted summary judgment to the Defendants on all of Plaintiffs’ federal claims and declined to exercise supplemental jurisdiction over their state claims. Because we write only for the parties, we will presume knowledge of the record. We will affirm in part and reverse in part.
I.
On September 13, 2005, a man named DeWayne Freeman was stabbed to death during a drug-related dispute in Wilmington. Based on statements from witnesses *307at the scene, the police suspected that Dwayne A. Walker was the killer, and on that day, Lawson applied for an arrest warrant for Dwayne A. Walker.
Lawson was the chief investigator of the Freeman homicide, and as such, he retrieved Dwayne A. Walker’s criminal record from the Delaware Criminal Justice Information System (“DELJIS”). This record showed an address of 703 West Fifth Street in Wilmington, but when a police officer went to that address, the occupant stated that Dwayne A. Walker did not live there.
On September 14, 2005, a confidential informant who had observed the murder contacted Detective Jeff Silvers, one of Lawson’s colleagues. This informant had assisted Silvers with more than twenty criminal investigations over the preceding five-year period and had proved reliable. The informant told Silvers that Dwayne A. Walker was staying with the informant’s sister-in-law,1 and later that day, the informant brought Silvers to the sister-in-law’s house to show him where it was. When the police returned to arrest Dwayne A. Walker, he could not be found.
The informant contacted Silvers again later the same day to advise him that Dwayne A. Walker’s “mother lived in Wilton, and if he wasn’t at [the] sister-in-law’s house, that’s probably [the] most likely place he could be found,” because “the first thing [Dwayne A. Walker] would do was run to his mom, which he always done whenever he got in trouble.” App. at A277-78, A292. The informant did not purport to have been in contact with Dwayne A. Walker. He did not know if Dwayne A. Walker had any kind of plan at the time, and he did not know if Dwayne A. Walker in fact went to his mother’s house. The informant did not know the address of the mother’s house, aside from the fact that it was in the Wilton area of New Castle and that she had moved there recently,2 but he informed Silvers that her boyfriend and daughter (Dwayne A. Walker’s sister) might be living with her. Silvers immediately told Lawson what the informant had told him. Lawson remembers that the informant told “Silvers that he wasn’t sure of the mom’s name or the mom’s name may have been different from” Dwayne A. Walker’s last name. Id, at A216.
Regarding what kind of car Dwayne A. Walker’s mother drove at the time, the informant gave the following testimony at his deposition:
Q. What kind [of automobile did the mother have]?
A. At that time she had a Maxima.
Q. A Maxima?
A. Yes. Nissan Maxima, maroon.
Id. at A281. A short while later, the questioning regarding the car continued:
Q. So did you tell Detective Silvers that Dwayne Walker’s mother drove a Lexus?
A. Did I tell him she drove a Lexus?
Q. Yeah.
A. No.
Q. And she didn’t did she?
A. No. She drove a Maxima at that time.
Q. Was there a Lexus? Did you provide him with information that you thought there might be a Lexus at that house?
A. No. Not that I know of.
*308Q. Did Detective Silvers ask you whether you knew what kind of cars may have been in the driveway or parked on the street next to this house?
A. I believe he did, but I couldn’t provide that because — Dwayne’s family, like I said, they had a couple dollars, so they could have been driving just about anything.
And then he had friends — I mean, personally. He growed up around and in my house. I knew he sold a lot of drugs. So it’s possible that they could have not only been driving a Lexus; they could have been driving a Jaguar.
Q. But you earlier testified that his mother drove a Maxima.
A. I seen her driving a Nissan Maxi-ma, yes, I did.
Q. Did you tell Detective Silvers that?
A. Yes, I did, but then he asked me were there any other vehicles. I told them it could have been anything because, like I said, they had a little bit of money at the time.
Id. at A290-91.
Based on the information from the confidential informant, Silvers entered the name “Dwayne Walker” into DELJIS to determine if anyone with that name was residing in the Wilton area of New Castle. This search yielded a report of a larceny having occurred on September 6, 2003, on Appleby Road in the Wilton Park area of New Castle. The larceny report listed as the victim Karen Alicia Walker, an African-American woman born November 10, 1962, and residing at 118 Dutton Court in New Castle, and as a witness Dwayne Walker, Jr., with no middle name or date of birth but also residing at 118 Dutton Court. In fact, the larceny report concerned the 2003 theft of plaintiff DeWayne Walker, Jr.’s, bicycle, the report having been filed by plaintiff Karen Walker, De-Wayne Walker, Jr.’s, mother.
Silvers was not assigned to the Freeman homicide, so he gave all of this information to Lawson for his investigation, and Lawson followed up by placing a telephone call to Connectiv Power Company of Delaware, whose records indicated that a “DeWayne Walker” was billed at 118 Dutton Drive3 in New Castle. While there is a difference in the spellings of the first names of Dwayne A. Walker and plaintiff DeWayne Walker, Sr., because Lawson spoke with Connectiv on the telephone, he did not pick up on the discrepancy. Lawson determined that 118 Dutton Drive is in New Castle, Delaware, behind an area known as Wilton.
Lawson then put 118 Dutton Drive under surveillance for several hours. The undercover officers conducting the surveillance reported that a dark-colored Lexus automobile was parked outside the house, and the license plate on the car was registered to Karen Walker. In addition, the surveillance revealed that a female and teenage male were seen exiting the house, and there “was also a possibility that there was a small child in the residence.” Id. at A136.
On September 14, 2005, Lawson applied for a warrant to search 118 Dutton Drive for evidence concerning the Freeman homicide. The final three paragraphs of Lawson’s Affidavit of Probable Cause state as follows:
8. Your affiant can truly state that on 9-14-05, a past proven rehable informant contacted Detective Jeff Silvers of the Wilmington Police Drug Unit with information as to the whereabouts of the *309suspect, Dwayne Walker. The informant stated Walker is currently hiding at his mother’s house in New Castle and is making plans to flee Delaware.
9. Your affiant can truly state that according to DELJIS records, a Dwayne Walker DOB 12-10-82 with a previous reported incident at 118 Dutton Drive in New Castle.
10. Your affiant can truly state current records with Connectiv Power Company of Delaware show 118 Dutton Drive, New Castle registered to Dwayne Walker. A check on DELJIS currently shows Dwayne Walker Sr. with a current address of 118 Dutton Drive in New Castle.
Id. at A115-16. On that day, a magistrate issued a search warrant, which authorized only a daytime search of the residence.
A police SWAT Team and a K-9 Unit entered Plaintiffs’ home4 with weapons drawn, rounded up all four Plaintiffs, gathered the family together in the living room, and swept through the remainder of the house. Plaintiffs testified that the SWAT team caused physical damage to the home, including stained carpets and broken doors, furniture, and railings.
Once the SWAT team confined the family in the living room, Lawson realized that a mistake had been made, and that he was in the wrong house. Lawson apologized and gave his business card to DeWayne Walker, Sr., in case Plaintiffs wanted to contact the police about any damage to the home. The encounter lasted approximately twenty to thirty minutes.
II.
Following discovery, Defendants moved for summary judgment. In the course of granting the motion with respect to Plaintiffs’ federal claims, the District Court concluded that: (1) “the search warrant was supported by probable cause and not procured in violation of plaintiffs’ Fourth Amendment rights;” (2) “defendants’ use of force was not unreasonable in violation of the Fourth Amendment;” and (3) “[njo reasonable jury could conclude on this record that defendants purposefully discriminated against plaintiffs on the basis of race.” Walker v. City of Wilmington, 579 F.Supp.2d 563, 573, 574, 577 (D.Del.2008).
On appeal, Plaintiffs make three principal arguments. First, they contend that the search warrant that authorized the raid on Plaintiffs’ home was defective because Lawson made false assertions in, and omitted pertinent facts from, his affidavit of probable cause submitted to the magistrate. Plaintiffs insist that “[w]hen the false statements are removed and the omissions added, there is no probable cause” for the search. Appellants’ Br. at 23. Second, Plaintiffs contend that Defendants used excessive force in executing the warrant. Plaintiffs argue that Defendants violated the “knock and announce” rule, the rule against unnecessary nighttime home searches, and a state law limiting the jurisdiction of the Wilmington Police Department. These violations are said to demonstrate the unreasonableness of Defendants’ conduct. Finally, Plaintiffs contend that Defendants violated their Equal Protection rights under the Fourteenth Amendment, because the police targeted Plaintiffs’ home for the raid because Plaintiffs are African-Americans.
III.
For reasons that will become apparent hereafter, we first address Plain*310tiffs’ Equal Protection claim. It is based upon a brief portion of the Defendants’ answer to the amended complaint and a brief portion of Lawson’s deposition. Defendants gave the following responses to the following allegations of that complaint:
Complaint (App. at A352)
49. Plaintiffs Walker, Sr., Plaintiff K. Walker, Plaintiff Walker, Jr. and Plaintiff T. Walker have no common identification with the individual being sought by the Defendants other than being African-American with the household surname of Walker.
50. The actions of Defendants traveling out of their jurisdiction were taken because of Plaintiffs’ race.
Answer (App. at A361)
49. Denied. By way of further explanation, the suspect sought was named Dwayne Walker, which is almost identical to the name of Plaintiff DeWayne Walker. Also by way of further explanation, the Dwayne Walker sought was previously transported by someone named Alicia Walker, and Plaintiff Karen Walker’s middle name is Alicia. Also by way of further explanation, Dwayne Walker was the same race as Plaintiff DeWayne Walker, and Alicia Walker was the same race as Plaintiff Karen Alicia Walker.
50. Denied.
Lawson gave the following deposition testimony regarding this segment of the Defendants’ answer:
THE WITNESS: But as far as race, race has nothing to do with this. I mean, the only consistency is that my suspect, he was arrested for homicide, was black, and Mr. Walker and his family are black. And that’s the only thing. But that has nothing to do with oranges or apples. It’s just what it is.
BY MR. BARTOSHESKY:
Q. Are you saying that when you did the DELJIS report on Karen Walker, if that had shown up as a Caucasian woman, would anything have been different in this case?
A. Probably.
Q. And why would that be?
A. Because that would throw up a flag to me that maybe it’s a different Walker from what I was being told.
App. at A232.
Plaintiffs characterize this answer and testimony as admissions by Lawson that “race was a deciding factor in his determination that 118 Dutton should be invaded” and that “if the records did not show that Karen was black, the invasion would not have happened.” Appellants’ Br. at 36. However, this answer and testimony are more properly characterized as showing simply that the police considered Plaintiffs’ race insofar as it made it more probable that there was a familial relationship between Plaintiffs and Dwayne A. Walker. The police were searching for an African-American suspect, so it was reasonable for them, when looking for the suspect’s mother, to seek out an African-American woman. No reasonable jury could conclude from this evidence or from any other evidence in this record that racial animus motivated the search of Plaintiffs’ home.
IV.
The same answer must be given to Plaintiffs’ primary argument in support of their Fourth Amendment unreasonable search claim. They insist that a reasonable jury could conclude from this record that Lawson knew that Karen Walker was not Dwayne A. Walker’s mother before he applied for the search warrant, ie., that his case for probable cause was a wholly fraudulent construct. There is no direct evidence and virtually no circumstantial evidence tending to contradict Lawson’s *311testimony that he did not know this fact at that time. In the absence of some reason why Lawson would mobilize a SWAT team and K-9 Unit to search the home of a family whom he did not know and whom he knew had no connection with Dwayne A. Walker, a reasonable jury could clearly not find that Lawson had the claimed knowledge. The only reason tendered by Plaintiffs is that Plaintiffs are African-Americans. However, as we previously indicated, the record will not support a finding that racial animus was responsible for the search of Plaintiffs’ home.
On the contrary, the evidence dictates a conclusion that the raid on 118 Dutton Drive was the result of an unfortunate mistaken belief that Karen Walker was the mother of Dwayne A. Walker. Moreover, while a more careful and thorough investigation may have avoided this mistake, given the similarity of the names involved, the misspelling of Plaintiff DeWayne Walker, Jr.’s, name on the DELJIS report of the 2003 larceny, and the odds against two families with such similar names living in the vicinity of Wilton, our study of the record convinces us that the allegations of Lawson’s affidavit regarding 118 Dutton Drive being the home of the suspect’s mother could not be found to be knowingly false or made “in reckless disregard of the truth.” Wilson v. Russo, 212 F.3d 781, 787 (3d Cir.2000).
However, this conclusion cannot end our analysis under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because other allegations were included in Lawson’s affidavit, most importantly that Dwayne A. Walker would indeed be at his mother’s home. Based on the testimony of Lawson and Silvers, a jury could find that Lawson had the same knowledge of the information conveyed by the informant as Silvers had. A jury could, accordingly, further find that the informant, while reliable, (1) did not purport to have had any contact with the suspect, (2) did not purport to know or even to have been told by anyone where the suspect was hiding, and (3) did no more than speculate that the suspect “most likely” went to his mother’s house because that would be characteristic behavior for him. Moreover, viewing the evidence in the light most favorable to Plaintiffs, a jury could find that Lawson knew the informant’s information would not be sufficient to secure a search warrant in the absence of corroboration and, accordingly, directed that surveillance of Plaintiffs’ home be conducted. It could further find that the surveillance produced no evidence of the suspect’s presence there.
It is in this context that a jury could find that Lawson made his representation to the magistrate: “a past proven reliable informant ... stated [that] Walker is currently hiding at his mother’s house in New Castle and is making plans to flee Delaware.” App. at A115. We conclude that this representation regarding the whereabouts of Dwayne A. Walker was not only inaccurate but could be found by a jury to be knowingly false or made in reckless disregard of the truth.
If a jury so concluded, there is no question that the misrepresentation was material for purposes of a Franks analysis. The informant’s “statement” was the only information in the affidavit that provided any reason to believe the suspect was at 118 Dutton Drive. Moreover, while an inconclusive effort at corroboration is normally not material in a search warrant application, where the only pertinent information is as speculative as it was here, we believe that the results of the surveillance could be found to be material.
Thus, when we correct Lawson’s affidavit as instructed by Franks, the only statement supporting probable cause to believe *312the suspect was hiding at 118 Dutton Drive is as follows:
8. A past proven reliable informant first informed Detective Jeff Silvers that Dwayne A. Walker could be found at his sister-in-law’s. When advised that Dwayne A. Walker was not there, the informant indicated that if he wasn’t at the sister-in-law’s house, he would most likely be found at his mother’s because he always runs to her when he’s in trouble. While the informant did not know the mother’s address, he stated that she lived in Wilton. When my investigation provided reason to believe that a Dwayne Walker, Sr., and Karen Walker live at 118 Dutton Drive, I caused that residence to be surveilled for several hours and that surveillance provided no affirmative reason to believe Dwayne A. Walker was present there.
“Probable cause exists to support the issuance of a search warrant if, based on a totality of the circumstances, ‘there is a fair probability that ... evidence of a crime will be found in a particular place.’ ” Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). While the reconstructed affidavit supports the proposition that evidence of Dwayne A. Walker’s guilt might conceivably be found at 118 Dutton Drive, a jury could find that it falls short of demonstrating a probability that such would be the case. See Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir.1995) (reversing summary judgment for defendant officer because jury could find that he lacked probable cause).
We thus conclude that the District Court erred in granting summary judgment on the Fourth Amendment search claims on the ground that the search warrant was supported by probable cause, and we will remand for further proceedings on those claims. With respect to those claims, the District Court did not reach Lawson’s qualified official immunity defense or the issues raised by the City under Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Accordingly, we express no opinion with respect to them.
V.
If a jury determines that the search warrant was invalid, there will be no occasion to address whether the search and seizure were otherwise unreasonable under the Fourth Amendment. Plaintiffs, however, assert a number of additional, affirmative, and independent grounds for reaching that same conclusion and providing a basis for a remedy.
A.
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations and quotations omitted). Thus, the proper application of the test of reasonableness “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation,” and this determination must be made “from the perspective of a reasonable officer on the scene, rather *313than with the 20/20 vision of hindsight.” Id. at 396-97, 109 S.Ct. 1865 (citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
In this case, the police, in addition to seeking evidence of a crime, were attempting to arrest a murder suspect. Murder is, of course, a very serious crime that makes it objectively reasonable for the police to deem the suspect potentially dangerous. Thus, it appears that the District Court’s conclusion that having a large, armed SWAT team and a K-9 Unit present was not unreasonable is correct. Additionally, the SWAT team gathered and confined Plaintiffs in the living room, and as soon as the police realized that they were in the wrong place, they explained the situation and left the premises. Under the circumstances at the time, this conduct was not objectively unreasonable and provides no independent basis for holding the search and seizure to be constitutionally unreasonable.
B.
Justice of the Peace Courts in Delaware may issue warrants statewide. Stroik v. State, 671 A.2d 1335, 1338 (Del.1996). We agree with the District Court and with the Court of Appeals for the Tenth Circuit that, when officers have a valid search warrant from a magistrate of the relevant jurisdiction, the requirements of the Fourth Amendment are met even if the executing officers “are acting outside their jurisdiction as defined by state law.” United States v. Green, 178 F.3d 1099, 1106 (10th Cir.1999).
C.
“[T]he method of an officer’s entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search and seizure.” Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Under the “knock and announce” rule, “police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry.” Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). However, not “every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Wilson, 514 U.S. at 934, 115 S.Ct. 1914.
Thus, a “no-knock” entry “is justified when, ‘the police [] have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.’ ” Kornegay v. Cottingham, 120 F.3d 392, 397 (3d Cir.1997) (quoting Richards, 520 U.S. at 394, 117 S.Ct. 1416). “Courts have upheld dispensing with the knock-and-announce requirement in four situations: (1) the individual inside was aware of the officers’ identity and thus announcement would have been a useless gesture; (2) announcement might lead to the sought individual’s escape; (3) announcement might place the officers in physical peril; and (4) announcement might lead to the destruction of evidence.” Id. (citing Richards, 520 U.S. at 394, 117 S.Ct. 1416; Wilson, 514 U.S. at 935-37, 115 S.Ct. 1914; Bodine v. Warwick, 72 F.3d 393, 397 (3d Cir.1995); United States v. Stiver, 9 F.3d 298, 302 (3d Cir.1993); United States v. Kane, 637 F.2d 974, 978 (3d Cir.1981)).
The District Court concluded that “although the police had conducted surveillance of the house and had officers and dogs positioned outside ..., the record [did] not show that the police knew and had covered all avenues of escape from 118 *314Dutton Drive.” Walker, 579 F.Supp.2d at 575. Accordingly, it held that “it was reasonable for the officers to suspect that knocking and announcing might lead to suspect Walker’s escape.” Id.
The District Court held in the alternative that there was no evidence (1) that Lawson was present at the time of the entry or was otherwise responsible for the manner in which it was effected, or (2) that the “no-knock entry was the result of the City’s policy or failure to train.” Walker, 579 F.Supp.2d at 575 n. 20 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). We will affirm the District Court on this claim based on these alternative holdings.
Lawson testified that he was not on site when the entry was made, and there is no evidence to the contrary. Based on the record as a whole, a jury could not find that Lawson was responsible for the manner in which the SWAT team entered the Plaintiffs’ home. Similarly, there is no record evidence from which a jury could find that the City was responsible under Monell for the manner of entry.
D.
Lawson applied for, and was granted, only authorization to search 118 Dutton Drive in the daytime. This is understandable. Section 2308 of Title 11 of the Delaware Code, by which both Lawson and the magistrate were bound, provided as follows:
A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant. For purposes of this section the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m.
As a result, Lawson’s affidavit and the magistrate’s authorization do not address whether a search conducted between 10:00 p.m. and 6:00 a.m. would be reasonable and the authorization was thus limited to a “daytime” search, ie., a search between 6:00 a.m. and 10:00 p.m.
We were confronted with a similar situation in United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir.1968). We ruled as follows:
The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is “unreasonable.” At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches. Even the odious “writs of assistance” which outraged colonial America permitted search of dwellings only in the daytime. The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court’s reminder that the search and seizure clause is properly “construed in the light of what was deemed an unreasonable search and seizure when it was adopted.” Carroll v. United States, 1925, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543.
During the early years of the republic this common-law tradition was embodied in two statutes passed by our first Congress that authorized only daytime searches. Thereafter, the reluctance to authorize nighttime searches except under exceptional circumstances continued as an integral part of our jurisprudence. * * *
Here it is claimed that the search, though made late at night, was reasonable because authorized by a warrant issued by a magistrate ... However, the issue whether the search was in fact authorized by the warrant is determin*315able by a reading of the warrant’s simple and unambiguous language. To find that a warrant which is explictly limited to daytime searches legalizes search at any hour of the day or night would be to disregard the magistrate’s actual determination and thus to nullify the requirement of a prior impartial determination that a particular search will be reasonable. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman, or Government enforcement agent.” Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436.
The record does not show, in possible justification for this action, any reason for apprehension that the evidence within the house would be removed, hidden or destroyed before morning. Accordingly, we hold the search constitutionally invalid.
Boyance, 398 F.2d at 897-99 (authorities, acts, statutes, and citations omitted except when quoting).
The District Court correctly understood the teaching of Boyance:
Unless the police had “reason for apprehension that the evidence within the house would be removed, hidden or destroyed before morning[,]” executing the daytime search warrant earlier than 6:00 a.m. would render the search “constitutionally invalid.” United States ex rel. Boyance v. Myers, 398 F.2d 896, 899 (3d Cir.1968). Conversely, executing the daytime search warrant at 6:00 a.m. or later would not.
Walker, 579 F.Supp.2d at 576. The District Court held, however, that the Plaintiffs were bound by an allegation in their amended complaint that the SWAT team entered the residence at “approximately 6:05 a.m.” and, accordingly, that the officers conducted a “daytime” search.
The Court held Plaintiffs to be so bound based on “the sham affidavit doctrine.” Id. It explained that under “the sham affidavit doctrine, ‘a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.’ ” Id. We conclude that the District Court’s application of this well established doctrine in this case results from a misunderstanding of the record and the rationale of the doctrine.
As we explained in Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.2007):
[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit eviden-tiary weight and that summary judgment is appropriate.
The main practical reason supporting the sham affidavit doctrine is that prior depositions are more reliable than affidavits. The Second Circuit noted in Perma Research [& Development Co. v. Singer Co.] that “[t]he deposition of a witness will usually be more reliable than his affidavit, since the deponent was either cross-examined by opposing counsel, or at least available to opposing counsel for cross-examination.” 410 F.2d [572] at 578 [2d Cir.1969] ... Affidavits, on the other hand, are usually drafted by counsel, whose familiarity with summary judgment procedure may render an affidavit less credible.
Here, the conflict identified by the Court arose when the Plaintiffs sought to rely upon the deposition testimonies of Karen Walker and DeWayne Walker, Jr., that were inconsistent with an allegation in their unverified amended complaint. As the Court noted, the allegation was that the SWAT team burst through the door at *316“approximately 6:05 a.m.” When asked about this segment of the complaint during her subsequent deposition, Karen Walker testified:
Q. Where were you in the house when the police came through the front door?
A. I was actually in the laundry room/ coat closet, and I was about to put on my daughter’s coat when they came in. And looking at this, I see it says approximately 6:05, but it had to be before 6:00 o’clock because I leave out at 6:00. And my son’s alarm clock goes off at 6:00 for him to wake up.
Q. So the statement in there is wrong?
A. By probably about ten minutes, the time.
Q. Okay. When did you realize that the statement was wrong?
A. When I read it.
Q. Where did the statement come from?
A. It came from my husband.
Q. Okay. He was wrong?
A. He wasn’t as accurate. I wouldn’t say, “Wrong.” He just wasn’t to the minute.
App. at A385.
DeWayne Walker, Jr., testified that he was asleep in his room when he was awakened by a “bang at the door.” When asked when the SWAT team left, he testified:
Q. Did they eventually leave?
A. Yes.
Q. About what time did they leave?
A. I know it was before 6:00, because my alarm hadn’t gone off yet.
Q. They left before 6:00?
A. Yes.
Id. at A299. There is thus testimony from which a jury, if permitted, could conclude that the twenty to thirty minute episode was concluded before 6:00 a.m.
The record reveals that neither Plaintiffs’ original complaint nor their amended one was verified by any Plaintiff. Moreover, in context, it is clear that the deposition testimony they sought to rely upon was not created in the face of a motion for summary judgment. Accordingly, we conclude that the “sham affidavit doctrine” is inapposite here.
This does not mean that the allegation that still remains in Plaintiffs’ amended complaint is of no consequence. Pleadings frame the issues to be litigated in each case, and the parties are circumscribed by the positions they take there unless and until an amendment is effected. Plaintiffs could have moved under Fed.R.Civ.P. 15 to amend their amended complaint to conform to their deposition testimony, and they did not. They were not, however, confronted with a contention grounded in the rules of pleading. If that had been Defendants’ position in support of their motion for summary judgment, it is reasonable to expect that a motion to amend would have been filed.
The District Court is in a better position than are we to determine whether an amendment to conform to Plaintiffs’ deposition testimony should be permitted at this stage of the proceedings or whether the averment in the complaint that the intrusion occurred at 6:05 should remain a binding judicial admission. See, e.g., Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir.2008). We express no view on that matter. We conclude, however, that Plaintiffs, on remand, should be permitted to file such a motion.
VI.
The District Court’s judgment in favor of Defendants on Plaintiffs’ equal protection claim, excessive force in execution of the warrant claim, and failure to “knock and announce” claim will be affirmed. The judgment with respect to all other claims will be vacated, and this matter will be *317remanded to the District Court for further proceedings consistent with this opinion.
. The informant's sister-in-law is the mother of two of Dwayne A. Walker's children.
. According to the testimony of Plaintiff Karen Walker, Wilton is a housing development in New Castle, Delaware. Plaintiffs' home is not in the Wilton development but is instead about one half-mile from the development.
. Apparently, Dutton Drive and Dutton Court are the same street in New Castle, Delaware. See App. at A204. Plaintiffs do not appear to dispute this point.
. Plaintiffs allege that the front door was locked, and that the police broke down the door in order to enter the premises, forcing it open so violently that it crashed into a table in the foyer area. App. at A385, A398. Defendants contend that the front door was unlocked, and the police simply entered the house. Id. at A136, A185.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Herbert L. Schoenbohm appeals the District Court’s denial of a motion for co-ram nobis relief.1 For the following rea*318sons, we will affirm the judgment of the District Court.2
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. In 1992, a jury convicted Schoenbohm on all three counts of an indictment for crimes involving the theft of long-distance telephone service, in violation of 18 U.S.C. § 1029(a). After considering Schoenbohm’s post-trial motions, the District Court dismissed two of these counts, leaving in place a conviction under 18 U.S.C. § 1029(a)(1) for fraudulent use of a counterfeit access device. The District Court found there was ample evidence to support the verdict on this count. Schoenbohm’s sentence included a term of house arrest, followed by probation, and a $5,000 fíne. Schoenbohm subsequently appealed his conviction to this Court. In an unpublished opinion, we affirmed Schoen-bohm’s conviction for use of a counterfeit access device. (App. at 64 [United States v. Schoenbohm, No. 93-7516, 1994 WL 412914 (3d Cir. Jul. 22,1994) ].)
While his appeal was pending, Schoen-bohm filed a pro se motion in the District Court seeking “relief from judgment” pursuant to Fed.R.Civ.P. 60(b)(3). Rule 60(b)(3) allows a court to relieve a party from a final judgment, order, or proceeding when there is fraud, misrepresentation, or misconduct by an opposing party. The District Court treated the motion as an application for habeas relief under 28 U.S.C. § 2255 and denied the petition. Schoenbohm appealed the denial of his habeas petition to this Court. In an unpublished opinion, we affirmed the District Court’s denial of habeas relief, again finding ample evidence to support Schoen-bohm’s conviction. (App. at 74 [United States v. Schoenbohm, No. 95-7241 (3d Cir. May 9,1996) ].)
Schoenbohm’s third appearance before this Court in this matter finds its genesis in a decision of the Federal Communications Commission (“FCC”). On February 2, 1994, while his direct appeal was pending, Schoenbohm applied to the FCC to renew his ham radio operator’s license. The FCC held a hearing to determine whether his criminal conviction disqualified Schoenbohm from renewing his license. Schoenbohm filed exceptions to an initial adverse decision. The proceeding was then remanded for the taking of additional evidence. On remand, the Administrative Law Judge (“ALJ”) upheld the denial of Schoenbohm’s application. However, in reaching this conclusion, the ALJ found that taped conversations Schoenbohm had with other radio operators did not show that he had used his amateur radio facilities to teach others how to obtain illegal access codes. These same conversations were among the evidence presented against Schoenbohm in this case.
In February 2006, the government sought a writ of garnishment to collect Schoenbohm’s $5,000 fine, with interest. Upon issuance of the writ, Schoenbohm requested a hearing. Relying on the FCC opinion, he moved pro se to vacate his conviction, dismiss the garnishment, and expunge his criminal record via a writ of coram nobis. The District Court denied Schoenbohm’s motions. Schoenbohm now appeals the denial of coram nobis relief to this Court.
II.
The writ of coram nobis is available “to attack allegedly invalid convictions which *319have continuing consequences, when the petitioner has served his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir.1989). Coram nobis is an extraordinary remedy and is appropriate only to correct a “fundamental error” for which “there was no remedy available at the time of trial and where ‘sound reasons’ exist for failing to seek relief earlier.” Id. at 106.3 Recently, the Supreme Court reemphasized that “courts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases.” United States v. Denedo, — U.S. -, -, 129 S.Ct. 2213, 2223, 173 L.Ed.2d 1235 (2009).
Schoenbohm argues that coram nobis is available to him because he has completed his sentence but suffers continuing consequences. These include the government’s effort to collect the fine levied against him and disenfranchisement due to his felony conviction. The government concedes that Schoenbohm is no longer in custody and arguably may suffer continuing consequences due to his conviction.
In support of his request for coram nobis relief, Schoenbohm argues that the government knowingly used false evidence to convict him and that this evidence affected his subsequent appeal and habeas petition. At trial, a taped radio conversation involving Schoenbohm was presented in support of the government’s contention that Schoenbohm instructed listeners on how to obtain illegal access codes. As noted, the FCC, in ruling on his license renewal, found that this conversation had nothing to do with illicit access codes. Instead, the ALJ concluded that Schoen-bohm discussed and demonstrated a third-party’s illegal method of making phone calls using ordinary, publicly-available numbers.
Even if this Court accepted the ALJ’s interpretation of the taped conversation, Schoenbohm’s case does not merit the extraordinary relief requested because the record still contains sufficient evidence to support Schoenbohm’s conviction. On direct appeal, this Court stated that “[18 U.S.C.] § 1029(a)(1) was violated if Seho-enbohm made a single call using a counterfeit access device.” (App. at 56.) At trial, the government presented to the jury substantial additional evidence showing that calls were made using such a device. This evidence included: testimony from multiple witnesses showing that Schoenbohm made calls using illicit codes; his possession of an automatic dialing machine, which could have been used to break into long-distance telephone lines; and a Secret Service agent’s testimony that Schoen-bohm not only admitted to possessing access codes, but also suggested that they “cut a deal.” (Id, at 56-57.) Given this evidence, the jury could have reasonably found that Schoenbohm made at least one long-distance call using a counterfeit access device. Because we find no “fundamental error” in this case, we decline to grant coram nobis relief.
For the foregoing reasons, we will affirm the District Court.
. Coram nobis, which is available only to individuals no longer in custody, refers to “[a] writ of error directed to a court for review of its own judgment and predicated on alleged *318errors of fact” Black's Law Dictionary 388 (9th ed.2009).
. The District Court had jurisdiction under 48 U.S.C. § 1612. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The government also argues that coram no-bis is inappropriate because Schoenbohm has no valid reason for not seeking relief earlier. The Court declines to reach this issue, as it finds no "fundamental error” and,, therefore, the request for coram nobis is without merit.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
The United States appeals from the District Court’s order granting the defendants’ motion to suppress evidence seized during a traffic stop. For the reasons that follow, we will affirm the District Court’s order.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of the issues raised on appeal. On May 22, 2008 at around 9:15 p.m., the Virgin Islands Police Department received an anonymous telephone call from a woman who reported seeing a small boat dropping off what appeared to be illegal immigrants at Robin Bay, St. Croix. The anonymous caller provided no description of the suspects. The dispatcher advised all patrol units of the tip.
Shortly thereafter, Police Officer Heral-do Charles was driving along the shore *321toward Robin Bay when he observed a red pickup truck traveling in the opposite direction with four passengers in the truck bed. The passengers were shirtless and some had towels draped over their shoulders. Based upon the tip, the fact that the men in the truck were shirtless and had towels on them, and his (apparently erroneous) belief that a recent incident relating to the transportation of illegal immigrants had involved a red pickup truck, Officer Charles pulled the truck over and radioed for assistance.
Officer Charles approached the pickup truck, asked the driver to get out of the vehicle, and questioned him. As Officer Charles was questioning the driver, Lieutenant Benjamin Rios arrived at the scene. As Lieutenant Rios approached Officer Charles and the driver, Charles told Rios that “it was okay” because “the individuals were just fishing.” (App.122.) Officer Charles then departed the scene to continue searching for the illegal immigrants while Lieutenant Rios remained with the truck. Rios made no further inquiries as to the occupants’ immigration status, and instead asked them what they had caught while fishing. The defendants pointed to a mesh bag in the truck bed, in which Lieutenant Rios observed undersized baby lobsters; Rios took the bag and emptied its contents on the ground. Rios asked if they had caught anything else, and the defendants showed him an adult-sized lobster. Lieutenant Rios then observed that one of the individuals in the truck bed appeared to be nervous and was attempting to conceal something covered with shirts with his legs. Rios asked what the man was attempting to conceal, no one answered, and Rios removed the shirts, revealing a dead sea turtle.
Defendants were arrested and charged with violating the Endangered Species Act and a Virgin Islands statute criminalizing the possession of undersized lobsters. They moved to suppress the fruits of the search, and, following a two-day evidentia-ry hearing, the District Court granted their motion. The District Court first concluded that Officer Charles had reasonable suspicion to stop the truck to determine whether its occupants were illegal immigrants, although it deemed that conclusion a “very close call.” (App.13.) It found, however, that the suspicion justifying the initial stop was dispelled by Officer Charles’s conversation with the truck’s driver — as evidenced by Charles’s statement to Rios that “it was ok” and that the occupants were local fisherman — and that Rios had no basis to detain and question the occupants any longer after Charles’s statements. The Government filed this timely appeal.
II.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review the District Court’s factual findings for clear error and exercise plenary review over its legal determinations. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996).
As we now explain, we conclude that the officers lacked reasonable suspicion to stop the pickup truck, and we will therefore affirm the District Court’s suppression order.1 “Generally, for a seizure to *322be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause.” United States v. Torres, 534 F.3d 207, 210 (3d Cir.2008) (citation omitted). “However, under the exception to the warrant requirement established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court has held that police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” United States v. Mathurin, 561 F.3d 170, 173-74 (3d Cir.2009) (quotations and citations omitted). The Terry exception to the warrant requirement likewise permits a police officer to conduct an investigative stop of an automobile if the officer “has reasonable suspicion that its passengers are engaged in criminal activity.” Id. at 174 (citations omitted). As we recently explained:
Under the reasonable suspicion standard, ... officers are required to have a particularized and objective basis to suspect illegal activity in order to conduct a search. The officers must be able to articulate reasons that led to the search ... that are indicative of behavior in which most innocent people do not engage. We consider the totality of the circumstances in determining whether reasonable suspicion existed at the time of the search. Accordingly, although each individual factor alone may be consistent with innocent behavior, it is sufficient if together they serve to eliminate a substantial portion of innocent travelers.
United States v. Whitted, 541 F.3d 480, 489 (3d Cir.2008) (internal quotations and citations omitted).
We agree with the defendants that Officer Charles did not have reasonable suspicion to stop the pickup truck. As an initial matter, the anonymous telephone call bore almost none of the indicia of reliability to which courts look when considering whether an anonymous tip provides a basis for a justifiable Terry stop. We have explained that the following factors demonstrate the reliability of an anonymous tip:
(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.
(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.
(3) The content of the tip is not information that would be available to any observer. ...
(4) The person providing the information has recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility[.]
Torres, 534 F.3d at 211 (citation omitted). Just one of these five factors — the fact that the activity in question had been “recently witnessed,” id. — is suggestive of the tip’s reliability. The fact that the tip was not communicated in a face-to-face interaction, the inability to hold the tipster responsible for fabricated information, the fact that the tip information would be available to any observer, and the non-predictive quality of the tip all weigh firmly against its reliability. Id.
More fundamentally, the anonymous call, which contained no description of the suspects and did not mention an automobile, certainly did not provide a basis of reasonable suspicion to stop this -particular pickup truck. Nor do we find that the remainder of the circumstances surrounding the Terry stop, together with the minimally reliable tip, were sufficient to show *323the “particularized and objective basis to suspect illegal activity” that was required in order to justify the stop. Whitted, 541 F.3d at 489 (quotations and citations omitted). In arguing that probable cause existed, the Government focuses most strenuously upon three related facts: (1) Robin Bay is an area where immigrants are known to enter St. Croix by water, (2) Officer Charles, a police veteran, was aware of the water-based nature of Robin Bay entries, and (3) the passengers in the pickup truck were shirtless and had towels draped across their shoulders, suggesting the possibility of recent contact with water. We cannot agree with the Government that merely being shirtless and wearing a towel while driving along the shore of a Caribbean island is even remotely “indicative of behavior in which most innocent people do not engage.” Id. (citing Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir.1995)). To the contrary, the behavior is much more consistent with innocent activities, such as swimming, sunbathing, and fishing, than it is with criminal conduct. The facts upon which Charles relied in attempting to justify the stop simply do not “serve to eliminate a substantial portion of innocent travelers” such that a reasonable suspicion of criminal activity can be said to have existed. Id.; see also Karnes, 62 F.3d at 493.
The Government attempts to bolster the basis for Charles’s suspicion by arguing that “prior to stopping the red pick-up truck, Officer Charles recalled that a red pick-up truck was previously stopped for suspicion of transporting illegal aliens.” (Reply Br. 5.) The record makes plain, however, that the while a red pickup had indeed previously been stopped, the officers “made a check of the vehicle for any suspected illegal aliens[,] ... cleared the vehicle, and the vehicle traveled on.” (App.113.) That is, the prior stop of a red pickup truck, which the Government suggests justified Charles’s suspicion in this case, showed that the pickup was engaged in innocent, not criminal, activity. We certainly cannot conclude that the prior incident involving a red pickup truck provided a reasonable basis to suspect that defendants were engaged in illegal conduct.
In sum, considering the totality of the circumstances, we conclude that Officer Charles lacked reasonable suspicion to justify the traffic stop in this case. We therefore conclude that the evidence seized following the stop was properly suppressed.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. We thus affirm the decision on different grounds than the District Court relied upon, see Morse v. Lower Merion School Dist., 132 F.3d 902, 904 n. 1 (3d Cir.1997) (‘‘[w]e may affirm the lower court's ruling on different grounds, provided the issue which forms the basis of our decision was before the lower court”) (citations omitted), and we do not address the issue of whether Lieutenant Rios’s question about the suspects’ fishing was an independent Fourth Amendment event requiring reasonable suspicion.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Fitzgerald Lightner appeals the district court’s orders denying relief on his 18 U.S.C. § 3582(c)(2) (2006) motion and his subsequent motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Lightner, No. 3:93-cr-00133-FDW-2 (W.D.N.C. Aug. 28, 2009; Oct. 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Lafon Murphy appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 8582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Murphy, No. 5:04-cr-00241-FL-1 (E.D.N.C. Sept. 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
The attorney appointed to represent Joseph W. Gardiner has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gardiner has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Carlos Garcia has moved for leave to with*530draw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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COOK, Circuit Judge.
A jury found defendant Jermaine Martin, a previously-convicted felon, guilty of possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court sentenced him to 235 months in prison. Martin appeals, arguing that his sentence was both proeedurally and substantively unreasonable, despite falling within the prescribed sentencing guidelines, and that the minor nature of his crime warrants a downward departure. We disagree, and accordingly affirm the district court’s sentencing determination.
I.
While attempting to apprehend Martin for other reasons, Lexington police arrested him for possessing a firearm as a convicted felon. Following a jury conviction, the Presentence Report assigned Martin an adjusted offense level of 33 as an armed career criminal and a criminal history category of VI, resulting in a Guidelines range from 235 to 293 months. The district court sentenced him to 235 months in prison and ordered that his sentence run concurrently with his undischarged state sentences. Martin voiced no objections during the sentencing hearing. On appeal, however, he questions the reasonableness of his within-Guidelines sentence and argues that his circumstances merit a downward departure to the mandatory statutory minimum sentence of 180 months.
II.
As a preliminary matter, Martin incorrectly characterizes his claim as involving a request for a downward departure. In United States v. Grams, we explained that although both departure and vai'iance claims request outside-Guidelines sentencing, a departure results from the district court’s application of a particular Guidelines provision, while a variance results from the district court’s weighing of 18 U.S.C. § 3553(a) factors. United States v. Grams, 566 F.3d 683, 686-87 (6th Cir.2009). Because Martin’s argument focuses exclusively on § 3553(a) factors, he presents a downward variance claim for our review, and therefore we review his sentence for procedural and substantive reasonableness. See, e.g., United States v. Presley, 547 F.3d 625 (6th Cir.2008) (reviewing grant of a downward variance for reasonableness); United States v. Deveaux, 198 Fed.Appx. 480, 483 n. 1, 484 (6th Cir.2006) (distinguishing failure to vary downward from failure to depart and reviewing variance claim for reasonableness).
Martin criticizes the district court’s failure to consider “significant factors” when declining to vary downward from the guidelines range, suggesting that he challenges the procedural reasonableness of his sentence. But because Martin did not object to his sentence when imposed, we review the district court’s sentencing procedure for plain error affecting substantial rights. United States v. Vonner, 516 F.3d 382, 391-92 (6th Cir.) (en banc), cert. denied, — U.S. -, 129 S.Ct. 68, 172 L.Ed.2d 26 (2008). In the § 3553(a) analysis context, the district court commits plain error only if it fails to consider a factor and its failure stems from “complete ignorance of that factor.” United States v. Houston, 529 F.3d 743, 751-52 (6th Cir.2008) (quoting United States v. Simmons, 501 F.3d 620, 625 (6th Cir.2007)). Martin’s sentencing transcript reflects that the district court considered all § 3553(a) factors; indeed Martin does not argue to the contrary. Instead he claims only that the sentencing court accorded greater weight to some factors than to others, a practice well within the court’s broad discretion. See United States v. Morris, 448 F.3d 929, 932-34 (6th Cir.2006). Thus, finding no plain error, we reject Martin’s procedural reasonableness challenge.
*585Martin alternatively challenges his sentence’s substantive reasonableness, a claim we review for abuse of discretion, regardless of whether the petitioner raised it below. Vonner, 516 F.3d at 389. Sentences, like Martin’s, that fall within the Guidelines range enjoy a rebuttable presumption of substantive reasonableness. Id.
Martin argues that the district court abused its discretion by failing to give adequate weight to his positive attributes, making his sentence substantively unreasonable. We cannot agree because the court referenced all § 3553(a) factors, focusing its attention on both mitigating and aggravating factors that it found most relevant. See United States v. Duane, 533 F.3d 441, 452 (6th Cir.2008). Specifically, the court found that Martin’s history of recidivism and the court’s charge to protect the public warranted a within-Guidelines sentence. In selecting the appropriate sentence, Martin’s positive attributes figured prominently — Martin’s drug-free lifestyle and compliance with authorities during apprehension moved the court to sentence at the low end of the range. Before this court, Martin “merely rehashes these factors and asserts that the court should have balanced them differently,” and thus fails to demonstrate an abuse of discretion, see United States v. Clay, 320 Fed.Appx. 384, 392 (6th Cir.2009), particularly in view of the district court’s nuanced application of § 3553(a) factors. Moreover, though Martin contends that the application of 18 U.S.C. § 924(e)(1) and the Sentencing Guidelines yielded an unreasonable sentence, he offers no evidence to distinguish his case from the “mine run of cases” in which an armed career criminal convicted of firearm possession receives a within-Guidelines sentence. United States v. Mayberry, 540 F.3d 506, 519 (6th Cir.2008) (citing Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). As a result, he fails to overcome the presumption of reasonableness afforded his sentence, and we hold that the district court did not abuse its discretion.
III.
For these reasons, we affirm.
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ORDER
Mary Stephens contracted a potentially fatal skin condition after taking a prescription drug. She brought this negligent failure-to-warn action in Illinois state court against the manufacturer of the drug and *649the pharmacy that filled the prescription. The defendants removed the case to the district court, which ultimately granted the defendants’ motion for summary judgment, concluding that Stephens did not raise a genuine fact issue regarding a breach of duty. We affirm.
As the district court explained, Stephens failed to comply with Northern District of Illinois Local Rule 56.1(b)(3) by failing to oppose summary judgment with a response identifying any dispute with the defendants’ statement of material facts. Because Stephens did not do so, the court enforced Local Rule 56.1(e) by accepting the defendants’ statement of facts as true. According to the defendants, Stephens had developed a urinary tract infection for which Dr. Hy Young Song prescribed the antibiotic Bactrim. Dr. Song phoned in the prescription to a CVS pharmacy owned by defendant Hook-SupeRx. CVS filled the prescription with Bactrim’s generic equivalent, Sulfatrim, which is manufactured by defendant Mutual Pharmaceutical. Stephens took Sulfatrim for more than a week, and then developed skin rashes and swelling in and around her mouth. She sought treatment at a hospital, where, after her condition turned critical, she was diagnosed with Stevens-Johnson Syndrome (“SJS”), a severe skin disease typically caused by an adverse reaction to drugs.
Since it began manufacturing Sulfatrim in the 1980s, Mutual has packaged the drug with an insert listing SJS as a rare but possible side effect. Dr. Song, who has since retired, testified that she regularly prescribed antibiotics like Bactrim and Sulfatrim to treat urinary tract infections. She said that before prescribing the drugs, she made a practice of reading about possible side effects in sources such as the Physicians Desk Reference, and she acknowledged that she knew SJS was a rare but possible side effect when she prescribed Sulfatrim for Stephens.
Stephens filed a two-count negligence complaint. The first count alleged that CVS failed to warn her of the risks of Sulfatrim before filling Dr. Song’s prescription. The second count claimed that Mutual’s labeling of the drug was inadequate to inform her and Dr. Song of the drug’s dangerous propensities.
In granting summary judgment for the defendants, the district court analyzed Stephens’s claim under the learned intermediary doctrine. According to that doctrine, drug manufacturers have a duty to warn prescribing physicians about the risks of prescription drugs. If they satisfy that duty, they can then rely on doctors to pass along the warnings to consumers. See Kirk v. Michael Reese Hosp. and Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987). Accordingly, a manufacturer can protect itself from a failure-to-warn claim by showing that it adequately informed physicians of the risk associated with a prescription drug. Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35, 42 (2002). The same showing will shield a pharmacist from liability. See Kennedy v. Medtronic, Inc., 366 Ill.App.3d 298, 303 Ill.Dec. 591, 851 N.E.2d 778, 784 (Ill.App.Ct.2006) (holding that a pharmacy’s duty to warn is ordinarily coextensive with that of a prescription drug manufacturer); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993). The district eourt concluded that there was no genuine dispute that Dr. Song understood the relationship between Sulfatrim and SJS. Dr. Song, the court found, had become familiar with the product over three decades of practice. In addition to reading the drug’s label, she regularly consulted the Physician’s Desk Reference and relevant medical journals, *650and she testified that she weighed the risks of SJS and other side effects when she called in the prescription for Stephens. Accordingly, the court concluded that the defendants had satisfied their duty to warn under the learned intermediary doctrine.
On appeal Stephens argues that the district court erred by focusing its review on a single side-effect, SJS, while disregarding her claims that she also suffered from “nerve damage/neuropathy.” Stephens argues that the court should not have relied exclusively on the defendants’ version of the facts, and that it erred by refusing to consider additional facts showing that the defendants failed to warn of the risks of nerve damage. However, a district court does not abuse its discretion when, as here, it penalizes a litigant for noncompliance with Local Rule 56.1 and disregards additional facts that a litigant has proposed. See Cichon v. Exelon Generation, 401 F.3d 803, 809-810 (7th Cir.2005); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir.1995).
Stephens also contends that the district court erred by resolving the case on summary judgment because, she insists, a genuine fact issue remains for the jury— whether Mutual’s labeling of Sulfatrim adequately warned about the risks of nerve damage. But Stephens forfeited any claim about nerve damage when she failed to respond to the defendants’ statements of material fact. See Cichon, 401 F.3d at 809-10. And Stephens concedes that there is no genuine dispute that Dr. Song knew SJS was a potential side effect of Sulfatrim when she prescribed the drug.
Stephens’s remaining arguments are meritless. She renews assertions, first raised in her memorandum opposing summary judgment, that CVS negligently prescribed Sulfatrim knowing that she was allergic to one of the drug’s active ingredients. But she made no such allegation in her complaint, so the claim was understandably not addressed. Stephens also argues that the district court erred by failing to grant her leave to amend her complaint. But Stephens never sought leave at any point in the proceedings to amend her complaint. A party may not request leave to amend a complaint after a final judgment unless the judgment has been vacated. Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir.2000).
Accordingly, we AffiRM the district court’s judgment.
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ORDER
Steven Brown confessed to stealing two rifles from a gun shop. He pleaded guilty to possessing a firearm after a felony conviction, and although he qualified as an armed career criminal, see 18 U.S.C. §§ 922(g)(1), 924(e), the prosecutor moved for a sentence below the 15-year statutory minimum because of his cooperation, see id. § 3553(e); U.S.S.G. § 5K1.1. The district court sentenced Brown to 10 years.
Brown filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Brown opposes counsel’s motion. See Cir. R. 51(b). We confíne our review to the potential issues identified in counsel’s facially adequate brief and in Brown’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002); Cir. R. 51(b).
Counsel first points out, rightly, that we would not review the adverse rul*660ing on Brown’s motion to suppress his confession because he waived any objection to that decision by entering an unconditional guilty plea. See Fed.R.Crim.P. 11(a)(2); United States v. Kingcade, 562 F.3d 794, 797 (7th Cir.2009).
Counsel also explains that his Anders brief omits discussion about the voluntariness of Brown’s guilty plea or the adequacy of the plea colloquy because Brown has told counsel that he filed this appeal to win a lower sentence but does not want his guilty plea set aside. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). Brown hedges, though, in his Rule 51(b) response and suggests that we let him withdraw his guilty plea if we do not order resentencing. We do not interpret his equivocation to mean that he really wants to proceed to trial and risk losing the five-year reduction he received. See id. at 670-72.
As a possible ground of error, counsel evaluates whether Brown could argue that he should have been given funds under the Criminal Justice Act to hire a “mitigation specialist” to search his background for favorable sentencing information. See 18 U.S.C. § 3006A(e)(l). We give deference to rulings on CJA requests for investigative or expert assistance, and we will not conclude that a district court abused its discretion by declining to authorize government money to be spent on a “fishing expedition.” United States v. Knox, 540 F.3d 708, 716-17 (7th Cir.2008); United States v. Smith, 502 F.3d 680, 686 (7th Cir.2007). Brown never explained what he hoped to achieve by hiring a “specialist,” and instead he represented to the district court that private background investigations frequently uncover “valuable and highly relevant information” omitted from the presentence investigation report. We agree with counsel that any argument about the denial of this generic request would be frivolous.
Counsel and Brown next assess whether Brown could challenge the length of his 10-year sentence or the manner in which it was imposed. But counsel identified no possible error in the calculation of the guidelines imprisonment range, and he concedes that the term imposed is reasonable. And, as counsel recognizes, we would not review an argument that the district court should have exercised its discretion more favorably to Brown and gone further below the minimum mandatory to reward his assistance to the government. See United States v. McGee, 508 F.3d 442, 444-45 (7th Cir.2007) (explaining that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not undermine cases interpreting 18 U.S.C. § 3742(a) to preclude review of discretionary decisions about how much to reduce a sentence for substantial assistance); United States v. Newman, 148 F.3d 871, 875 n. 2 (7th Cir.1998); United States v. Senn, 102 F.3d 327, 331 (7th Cir.1996).
Brown would argue that the government breached the plea agreement and acted in bad faith by moving for a sentence below the minimum mandatory but then urging the district court to go no lower than 10 years because of his extensive criminal history. Plea agreements are governed by ordinary contract principles and confer no greater benefit than what the parties negotiated. United States v. Monroe, 580 F.3d 552, 556 (7th Cir.2009). In this instance the government promised to inform the sentencing court about the “nature and extent” of Brown’s cooperation and, if it was substantial, to consider recommending a sentence that might be below the minimum mandatory. But, like Brown, the government reserved the right to give the court “any and all information which might be pertinent to the sentencing process, including ... any and all matters which might constitute aggravating or mit*661igating sentencing factors.” The prosecutor did no more than what the plea agreement expressly authorized.
Still, says Brown, the district court should not have weighed his criminal history in deciding whether to impose a sentence even lower than the 10 years recommended by the government; in his view, once the court decided to grant the government’s motion and impose a sentence below the statutory minimum, see 18 U.S.C. § 3553(e), the court should have considered only factors related to the timing and quality of his assistance, see U.S.S.G. § 5K1.1. This contention is frivolous. Once a district court has decided that a sentence below the statutory floor is justified by the defendant’s cooperation, the court may not rely upon other mitigating factors in § 3553(a) to further reduce the sentence. United States v. Johnson, 580 F.3d 666, 672-74 (7th Cir.2009). But the court may weigh aggravating factors— such as an extensive criminal history— against the defendant’s cooperation in settling upon an appropriate sentence. “In other words, the court may increase a sentence on the basis of the § 3553(a) factors, but not reduce the sentence further.” United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir.2009); see also United States v. Williams, 551 F.3d 182, 186-87 (2d Cir.2009); United States v. Richardson, 521 F.3d 149, 159 (2d Cir.2008); United States v. Martin, 455 F.3d 1227, 1236 (11th Cir.2006).
Brown also proposes to argue that U.S.S.G. § 5G1.3(b) compelled the district court to shorten his federal sentence to account for his state incarceration. After Brown stole the two guns in July 2007, authorities in Wisconsin revoked his probation for convictions in 2004 for fleeing from a police officer and bail jumping. Brown contends that his time served for these crimes should have reduced the length of his federal sentence (he also insists that his federal sentence should have run concurrently, but that contention is academic because the state terms expired two days after the federal sentence was imposed). Section 5G1.3, like all guidelines, is now advisory, United States v. Bangsengthong, 550 F.3d 681, 682 (7th Cir.2008), though Brown’s argument would have been frivolous even if it were mandatory. Subsection (b) directs the district court to adjust a federal sentence only when the defendant is already serving a term of imprisonment for “relevant conduct” that increased the offense level under Chapter 2 or Chapter 3. U.S.S.G. § 5G1.3(b) & cmt. n. 2; United States v. Broadnax, 536 F.3d 695, 701-02 (7th Cir.2008). Brown’s state convictions did not meet those conditions.
Finally, Brown wants to argue that the district court should not have ordered him to pay the gun dealer for the stolen rifles without making a finding that he had the ability to pay. But in his plea agreement Brown committed to paying restitution, and by statute a district court is authorized to impose restitution as agreed by the parties. 18 U.S.C. § 3663(a)(3); see United States v. Allen, 201 F.3d 163, 167-68 (2d Cir.2000) (explaining that sentencing court is not required to independently evaluate defendant’s ability to pay when the parties have agreed to restitution as part of plea agreement); see also United States v. Pappas, 409 F.3d 828, 830 (7th Cir.2005) (explaining that defendant’s promise to pay restitution as part of plea agreement is binding).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Michael Reilly pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), and was sentenced to a total of 151 months’ imprisonment, the low end of the applicable guidelines range. Reilly argues that his sentence is unreasonable because the district court failed to adequately consider the sentencing factors in 18 U.S.C. § 3553(a). We affirm the judgment.
In November 2006 Reilly robbed a branch of TCF Bank in Chicago, Illinois, by holding his hand in his pocket and claiming to have a gun. He pleaded guilty to bank robbery despite asserting that he committed the offense during an alcohol-induced blackout. The district court calculated Reilly’s imprisonment range using a total offense level of 29. See U.S.S.G. §§ 4B1.1, 3E1.1. That offense level, coupled with Reilly’s criminal history category of VI, yielded a guidelines imprisonment range of 151 to 188 months.
At sentencing Reilly had no objections to the calculation of the guidelines imprisonment range. He argued, however, that the district court should minimize the effect of his career-offender status on his *663sentence because his chronic alcoholism was the “driving force” behind his current offense and prior convictions. Reilly has 50 prior convictions for misdemeanors (mostly theft) and 6 prior convictions for felonies, including 3 robberies. Reilly explained that he had no control over his alcohol addiction and that stealing was his way of coping. Reilly contended that his criminal history did not exhibit the premeditation and violence typical of career offenders.
Reilly also argued that the district court should impose a sentence below the career-offender guidelines range because, although he needed treatment for his alcohol addiction, he was not guaranteed a spot in the Bureau of Prisons’ substance-abuse treatment program. To support this point, Reilly submitted the psychological evaluation of Dr. Michael Fields who opined that Reilly needs long-term individual therapy, long-term substance-abuse treatment, and psychiatric evaluation to determine whether medication can alleviate some of his emotional and social problems. Although Reilly maintained that a shorter prison sentence would allow him to receive his needed treatment sooner, the presentence investigation report explained the Reilly’s past treatment for alcoholism outside of prison had been ineffective. Also, in her sentencing memorandum, Reilly’s counsel acknowledged that Reilly had been released from federal custody just weeks before the bank robbery in this case and that, after brief stays in a homeless shelter and in jail, he went on a drinking binge before robbing the same TCF Bank branch that he had robbed six years earlier.
At the conclusion of the sentencing hearing, after considering Reilly’s arguments for a below-guidelines sentence, the district court recognized the influence that alcoholism has had on Reilly’s life and his need for treatment. Although it initially asked counsel what psychological evidence Reilly relied on for his claim that alcoholism affected his behavior, the court later acknowledged that “the Bureau of Prisons will see fit to provide some kind of treatment and counseling” because of Reilly’s “major problem in terms of alcoholism.” The court then concluded that 151 months’ imprisonment was an appropriate sentence given the nature of the present offense, Reilly’s long criminal history, the danger he posed to the public, and the prospect that he would receive needed substance-abuse treatment in prison. Before entering judgment, the district court held a second hearing to evaluate the prospects of Reilly receiving the necessary treatment in prison. Reilly’s lawyer stated that Reilly was eligible for the Bureau of Prisons’ intensive drug-treatment program but that a judicial recommendation would help ensure that he received a spot in the program. After agreeing to recommend that Reilly receive needed substance-abuse treatment in prison, the court announced that the 151-month prison sentence would stand.
On appeal Reilly argues that his sentence is unreasonable because the district court failed to adequately consider the effect of his alcoholism and related mental conditions, as contemplated by § 3553(a). In particular, Reilly contends that the district court may not have reviewed the psychological assessment that he submitted in support of his argument for a below-guidelines sentence because the district court seemed initially unaware that he had submitted a psychological evaluation. Reilly also maintains that the district court failed to appreciate that he was not guaranteed placement in the prison treatment program for curbing his alcohol-influenced criminal behavior.
Whether a district court followed the proper procedure for imposing sentence *664after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a question of law that this court reviews de novo. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir.2007). The sentencing court is not required to discuss each of the statutory sentencing factors under § 3553(a); it is enough if the record confirms meaningful consideration of the types of factors set forth in § 3553(a). United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006). But the sentencing court must respond to a defendant’s nonfrivolous arguments for leniency. See United States v. Acosta, 474 F.3d 999, 1003 (7th Cir.2007) (citing United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)).
To support his argument that the district court’s sentence was procedurally unreasonable because it supposedly ignored his psychological assessment and need for treatment, Reilly relies on United States v. Miranda, 505 F.3d 785 (7th Cir.2007), and United States v. Cunningham, 429 F.3d 673 (7th Cir.2005). In Miranda, this court vacated the defendant’s sentence because the district court failed to address the defendant’s argument that his Schizo-affective Disorder reduced the need for deterrence and rendered him less deserving of punishment. 505 F.3d at 794. Similarly, in Cunningham, this court remanded for resentencing because the district court “passed over in silence the principal argument made by the defendant” that his long history of psychiatric illness and substance abuse called for a below-guidelines sentence. 429 F.3d at 679.
This case differs from both Miranda and Cunningham because, rather than ignoring Reilly’s principal argument for leniency — his alcoholism and need for treatment — the district court expressly recognized his “major problem” with alcoholism. Furthermore, because of its awareness of Reilly’s alcoholism and need for treatment, the court held a second hearing on the likelihood of treatment in prison and, as a result, promised to make “a very strong recommendation to whatever facility [he is] sent to, that they provide [him] treatment.” It is true, as Reilly argues, that the district court initially asked defense counsel if a psychological evaluation supported counsel’s claim that alcoholism influenced Reilly’s behavior, even though counsel had already submitted a psychological evaluation to the court. But later, the court, in the context of discussing Reilly’s need for counseling and treatment, openly recognized his mental-health issues as reflected in that evaluation. See United States v. Nurek, 578 F.3d 618, 626 (7th Cir.2009). Moreover, in the judgment, the district court indicated that it was adopting the facts from the presentence investigation report, which included details regarding Reilly’s lifelong struggle with alcoholism. Accordingly, the district court did not “pass[] over in silence” Reilly’s alcoholism and treatment needs.
In arriving at a sentence, § 3553(a) requires the district court to consider other factors, in addition to Reilly’s psychological condition. The court had to consider Reilly’s life long history of committing thefts and robberies, the need to punish Reilly and to protect the public, and the kinds of sentences available. The court also had to consider the likelihood that prison would enable Reilly to receive effective treatment (a possibility that counsel acknowledged, even though it was not guaranteed) against the reality that, when not in prison, Reilly had either foregone or received ineffective treatment. Reilly’s poor performance during his recent period of supervised release was also a relevant consideration. Under these circumstances, the district court reasonably determined that, despite Reilly’s serious alcoholism, a sentence of 151 *665months’ imprisonment with the possibility of effective treatment was appropriate.
The district court’s choice of sentence is not unreasonable simply because it rejected Reilly’s plea for leniency. See United States v. Trice, 484 F.3d 470, 475 (7th Cir.), cert. denied, 552 U.S. 923, 128 S.Ct. 297, 169 L.Ed.2d 211 (2007); United States v. Gipson, 425 F.3d 335, 337 (7th Cir.2005). The reasons given by the court for imposing a prison sentence of 151 months address the arguments that counsel made, demonstrate meaningful consideration of the record and of the § 3553(a) factors, and are therefore procedurally reasonable. See Rita v. United States, 551 U.S. 338, 358, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Bustamante, 493 F.3d 879, 891-92 (7th Cir.2007), cert. denied, 552 U.S. 1237, 128 S.Ct. 1460, 170 L.Ed.2d 287 (2008). Moreover, this court presumes that Reilly’s sentence is substantively reasonable because it falls within the properly calculated guidelines range, see Miranda, 505 F.3d at 791, and because nothing in the record overcomes this presumption, this court should conclude that Reilly’s sentence is reasonable, see United States v. Garcia, 580 F.3d 528, 540 (7th Cir.2009); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).
Accordingly, we AFFIRM the judgment of the district court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476487/
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ORDER
Piotr Misiolek pled guilty to separate conspiracies to distribute ecstasy, 21 U.S.C. §§ 846, 841(a)(1), to launder the drug proceeds, 18 U.S.C. § 1956(h), and to transport and sell stolen vehicles, 18 U.S.C. §§ 371, 2312, 2313. He fled the country before sentencing but was apprehended nine months later and returned to U.S. custody. He retained new counsel and moved to withdraw his guilty pleas on the ground that he did not understand the potential penalties. The district court conducted an evidentiary hearing and denied the motion after finding Misiolek not credible. The court then sentenced him to the statutory maximum on each count to run consecutively, totaling 45 years’ imprisonment. Misiolek appeals and argues that he should have been allowed to withdraw his guilty pleas. We affirm the judgment.
Misiolek fenced approximately 20 stolen vehicles and also ran a drug ring that supplied customers with more than 250,000 ecstasy pills, a number equivalent to 31,000 kilograms of marijuana under the sentencing guidelines. He executed a written plea agreement that informed him of the maximum prison terms: 20 years each on the drug and money-laundering counts and 5 years on the stolen-vehicle conspiracy for a total of 45 years. The same information was repeated to Misiolek at the plea hearing, and he acknowledged his understanding.
After Misiolek pled guilty, the probation officer calculated a guideline imprisonment range of 30 years to life based on a total offense level of 42 and criminal history category of I. At the sentencing hearing, however, Misiolek disputed whether the district court was authorized to impose consecutive prison terms to impose a total sentence within the guideline range. The district court postponed the sentencing to permit the parties to brief that question. *667Misiolek, a Polish citizen who was free on bond, took advantage of the delay to flee to Europe. He was arrested in the Czech Republic almost a year later. After his extradition, a new lawyer entered his appearance and Misiolek moved to withdraw his guilty pleas.
In his motion Misiolek claimed that he had not understood the sentencing consequences of his guilty pleas and thus that his pleas were not knowing and voluntary. His former attorney, he said, had told him that the written plea agreement was part of a larger deal under which he would receive a total sentence of seven to ten years. The district court conducted an evidentiary hearing, and both Misiolek and his former attorney testified. Misiolek repeated what he said in his motion. His former attorney denied telling him that he would get only seven to ten years and said he went over the plea agreement and sentencing consequences in detail with Misio-lek. The district court believed the lawyer and not Misiolek, and denied the motion.
The probation officer then revised the presentence report to include an upward adjustment for obstruction of justice based on Misiolek’s flight, see U.S.S.G. § 8C1.1, and to eliminate the recommendation that Misiolek receive credit for acceptance of responsibility under § 3E1.1. These changes increased the guideline imprisonment range to life.
On appeal Misiolek contends that he should have been permitted to withdraw his guilty pleas because he did not understand the total sentence he could receive and was never told that he could plead guilty yet still contest the drug quantity and his leadership role. A defendant may withdraw a guilty plea before sentencing if he “can show a fair and just reason.” Fed.R.Crim.P.ll(d)(2)(B). A plea that is not knowing and voluntary satisfies this standard. United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). In reviewing the denial of a motion to •withdraw a guilty plea, we defer to the district judge’s factual findings unless clearly erroneous, United States v. Pike, 211 F.3d 385, 388 (7th Cir.2000), and will uphold the ruling on the motion unless the judge abused his discretion, United States v. Singleton, 588 F.3d 497, 500 (7th Cir.2009).
Misiolek argues that the district court’s credibility findings were clearly erroneous, but those findings are well supported and thus conclusive. See United States v. Stewart, 198 F.3d 984, 986-87 (7th Cir.1999) (explaining that district court’s credibility finding was dispositive of motion to withdraw guilty plea where court credited defendant’s statements made at plea hearing). In denying the motion to withdraw, the district court quoted from the plea colloquy where Misiolek was told of the potential penalties and acknowledged his understanding. For instance, when the district court asked the prosecutor to state the statutory máximums, he listed the maximum for each individual count and added that “the total of that ... would be a term of imprisonment on the total of the three counts would be 45 years imprisonment.” Misiolek’s former attorney also testified at the evidentiary hearing that he went over with Misiolek in detail the plea agreement and presentence report — both of which mention the possibility of 45 years — so that Misiolek would understand the potential sentencing consequences. In addition, the district court reasoned that Misiolek’s claimed ignorance of the penalty range was undermined by a form he completed just days before the first sentencing hearing to notify the Polish consulate that he would be repatriating with his father in a few weeks.
All of this evidence was weighed against Misiolek’s testimony at the evidentiary hearing that he was ignorant of the maxi*668mum prison sentences and instead thought he would get only seven to ten years. The district court was free to discredit Misio-lek’s testimony and to hold him to the representations he made under oath during the plea colloquy. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002) (explaining that district court usually is justified in discrediting proffered reasons for motion to withdraw and holding defendant to admissions made during plea colloquy). And in addressing Misiolek’s credibility the district court fairly relied on the form from the Polish consulate, finding reasonably that the form was not simply for the defendant’s father, as the defendant argued, but was also for and signed by the defendant.
The district court also was free to credit the former attorney’s testimony that he discussed with Misiolek the effect that his leadership role would have at sentencing and never told him he was compelled to accept the government’s view of how the guidelines should be applied. See United States v. Alvarado, 326 F.3d 857, 862 (7th Cir.2003) (declining to second-guess district court’s determination of whom to believe when conflicting testimony is given); United States v. Thornton, 197 F.3d 241, 247 (7th Cir.1999) (“In a swearing contest, the trial judge’s choice of whom to believe will not be rejected unless the judge credited exceedingly improbable testimony.”). As the district court noted in its order, even Misiolek’s new lawyer conceded at the evidentiary hearing that Misiolek has credibility problems.
Misiolek argues that the plea agreement was so lopsided that it offered no benefit to Misiolek and that no defendant who was accurately informed of its terms would have had rational reasons to sign it. The record does not support the argument. The plea agreement contained preliminary guideline calculations that would have produced a final offense level of 41, assuming that the defendant was entitled to a three-level reduction for acceptance of responsibility. With the defendant’s criminal history category of I, the guideline range (the guidelines were still deemed binding at the time of the agreement) would have been 324 months to 405 months, which is well below the maximum 540 months allowed by stacking the statutory maximum terms consecutively. In other words, the preliminary guideline calculations, though not binding on the parties or the court, would have provided a significant benefit to Misiolek if he had stayed to face the court’s sentence rather than fleeing.
Accordingly, the district court properly exercised its discretion in denying Misio-lek’s motion to withdraw his guilty pleas. The judgment is 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/8476490/
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ORDER
On June 8, 2009, we ordered these cases be returned to the district court on limited remand to query whether the district court wanted to resentence Ray Longstreet and Michael Ervin in light of the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). On December 22, 2009, the district court communicated its desire to resentence the defendants. Accordingly, we Vacate Ray Longstreet’s and Michael Ervin’s sentences and Remand their cases to the district court for resentencing.
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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/8476591/
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
This is an action brought under 42 U.S.C. § 1983 and state law alleging that the City of Wilmington, Delaware, and Wilmington Police Detective Michael R. Lawson, Jr., (collectively, “Defendants”) violated the Fourth and Fourteenth Amendments, and committed state law false imprisonment and battery, when Lawson and an armed SWAT team of the Wilmington Police Department executed an allegedly invalid search warrant by entering the home of Plaintiffs DeWayne Walker, Sr., his wife, Karen Walker, their teenaged son, DeWayne Walker, Jr., and their two-year-old daughter (collectively, “Plaintiffs”), seizing Plaintiffs, and searching the premises. The warrant authorized the search for and seizure of evidence relating to a recent homicide that the police believed had been committed by Dwayne A. Walker, whose date of birth was 12/10/82. As Defendants now acknowledge, Dwayne A. Walker is unrelated to Plaintiffs and has never been to their home at 118 Dutton Drive, New Castle, Delaware.
The District Court granted summary judgment to the Defendants on all of Plaintiffs’ federal claims and declined to exercise supplemental jurisdiction over their state claims. Because we write only for the parties, we will presume knowledge of the record. We will affirm in part and reverse in part.
I.
On September 13, 2005, a man named DeWayne Freeman was stabbed to death during a drug-related dispute in Wilmington. Based on statements from witnesses *307at the scene, the police suspected that Dwayne A. Walker was the killer, and on that day, Lawson applied for an arrest warrant for Dwayne A. Walker.
Lawson was the chief investigator of the Freeman homicide, and as such, he retrieved Dwayne A. Walker’s criminal record from the Delaware Criminal Justice Information System (“DELJIS”). This record showed an address of 703 West Fifth Street in Wilmington, but when a police officer went to that address, the occupant stated that Dwayne A. Walker did not live there.
On September 14, 2005, a confidential informant who had observed the murder contacted Detective Jeff Silvers, one of Lawson’s colleagues. This informant had assisted Silvers with more than twenty criminal investigations over the preceding five-year period and had proved reliable. The informant told Silvers that Dwayne A. Walker was staying with the informant’s sister-in-law,1 and later that day, the informant brought Silvers to the sister-in-law’s house to show him where it was. When the police returned to arrest Dwayne A. Walker, he could not be found.
The informant contacted Silvers again later the same day to advise him that Dwayne A. Walker’s “mother lived in Wilton, and if he wasn’t at [the] sister-in-law’s house, that’s probably [the] most likely place he could be found,” because “the first thing [Dwayne A. Walker] would do was run to his mom, which he always done whenever he got in trouble.” App. at A277-78, A292. The informant did not purport to have been in contact with Dwayne A. Walker. He did not know if Dwayne A. Walker had any kind of plan at the time, and he did not know if Dwayne A. Walker in fact went to his mother’s house. The informant did not know the address of the mother’s house, aside from the fact that it was in the Wilton area of New Castle and that she had moved there recently,2 but he informed Silvers that her boyfriend and daughter (Dwayne A. Walker’s sister) might be living with her. Silvers immediately told Lawson what the informant had told him. Lawson remembers that the informant told “Silvers that he wasn’t sure of the mom’s name or the mom’s name may have been different from” Dwayne A. Walker’s last name. Id, at A216.
Regarding what kind of car Dwayne A. Walker’s mother drove at the time, the informant gave the following testimony at his deposition:
Q. What kind [of automobile did the mother have]?
A. At that time she had a Maxima.
Q. A Maxima?
A. Yes. Nissan Maxima, maroon.
Id. at A281. A short while later, the questioning regarding the car continued:
Q. So did you tell Detective Silvers that Dwayne Walker’s mother drove a Lexus?
A. Did I tell him she drove a Lexus?
Q. Yeah.
A. No.
Q. And she didn’t did she?
A. No. She drove a Maxima at that time.
Q. Was there a Lexus? Did you provide him with information that you thought there might be a Lexus at that house?
A. No. Not that I know of.
*308Q. Did Detective Silvers ask you whether you knew what kind of cars may have been in the driveway or parked on the street next to this house?
A. I believe he did, but I couldn’t provide that because — Dwayne’s family, like I said, they had a couple dollars, so they could have been driving just about anything.
And then he had friends — I mean, personally. He growed up around and in my house. I knew he sold a lot of drugs. So it’s possible that they could have not only been driving a Lexus; they could have been driving a Jaguar.
Q. But you earlier testified that his mother drove a Maxima.
A. I seen her driving a Nissan Maxi-ma, yes, I did.
Q. Did you tell Detective Silvers that?
A. Yes, I did, but then he asked me were there any other vehicles. I told them it could have been anything because, like I said, they had a little bit of money at the time.
Id. at A290-91.
Based on the information from the confidential informant, Silvers entered the name “Dwayne Walker” into DELJIS to determine if anyone with that name was residing in the Wilton area of New Castle. This search yielded a report of a larceny having occurred on September 6, 2003, on Appleby Road in the Wilton Park area of New Castle. The larceny report listed as the victim Karen Alicia Walker, an African-American woman born November 10, 1962, and residing at 118 Dutton Court in New Castle, and as a witness Dwayne Walker, Jr., with no middle name or date of birth but also residing at 118 Dutton Court. In fact, the larceny report concerned the 2003 theft of plaintiff DeWayne Walker, Jr.’s, bicycle, the report having been filed by plaintiff Karen Walker, De-Wayne Walker, Jr.’s, mother.
Silvers was not assigned to the Freeman homicide, so he gave all of this information to Lawson for his investigation, and Lawson followed up by placing a telephone call to Connectiv Power Company of Delaware, whose records indicated that a “DeWayne Walker” was billed at 118 Dutton Drive3 in New Castle. While there is a difference in the spellings of the first names of Dwayne A. Walker and plaintiff DeWayne Walker, Sr., because Lawson spoke with Connectiv on the telephone, he did not pick up on the discrepancy. Lawson determined that 118 Dutton Drive is in New Castle, Delaware, behind an area known as Wilton.
Lawson then put 118 Dutton Drive under surveillance for several hours. The undercover officers conducting the surveillance reported that a dark-colored Lexus automobile was parked outside the house, and the license plate on the car was registered to Karen Walker. In addition, the surveillance revealed that a female and teenage male were seen exiting the house, and there “was also a possibility that there was a small child in the residence.” Id. at A136.
On September 14, 2005, Lawson applied for a warrant to search 118 Dutton Drive for evidence concerning the Freeman homicide. The final three paragraphs of Lawson’s Affidavit of Probable Cause state as follows:
8. Your affiant can truly state that on 9-14-05, a past proven rehable informant contacted Detective Jeff Silvers of the Wilmington Police Drug Unit with information as to the whereabouts of the *309suspect, Dwayne Walker. The informant stated Walker is currently hiding at his mother’s house in New Castle and is making plans to flee Delaware.
9. Your affiant can truly state that according to DELJIS records, a Dwayne Walker DOB 12-10-82 with a previous reported incident at 118 Dutton Drive in New Castle.
10. Your affiant can truly state current records with Connectiv Power Company of Delaware show 118 Dutton Drive, New Castle registered to Dwayne Walker. A check on DELJIS currently shows Dwayne Walker Sr. with a current address of 118 Dutton Drive in New Castle.
Id. at A115-16. On that day, a magistrate issued a search warrant, which authorized only a daytime search of the residence.
A police SWAT Team and a K-9 Unit entered Plaintiffs’ home4 with weapons drawn, rounded up all four Plaintiffs, gathered the family together in the living room, and swept through the remainder of the house. Plaintiffs testified that the SWAT team caused physical damage to the home, including stained carpets and broken doors, furniture, and railings.
Once the SWAT team confined the family in the living room, Lawson realized that a mistake had been made, and that he was in the wrong house. Lawson apologized and gave his business card to DeWayne Walker, Sr., in case Plaintiffs wanted to contact the police about any damage to the home. The encounter lasted approximately twenty to thirty minutes.
II.
Following discovery, Defendants moved for summary judgment. In the course of granting the motion with respect to Plaintiffs’ federal claims, the District Court concluded that: (1) “the search warrant was supported by probable cause and not procured in violation of plaintiffs’ Fourth Amendment rights;” (2) “defendants’ use of force was not unreasonable in violation of the Fourth Amendment;” and (3) “[njo reasonable jury could conclude on this record that defendants purposefully discriminated against plaintiffs on the basis of race.” Walker v. City of Wilmington, 579 F.Supp.2d 563, 573, 574, 577 (D.Del.2008).
On appeal, Plaintiffs make three principal arguments. First, they contend that the search warrant that authorized the raid on Plaintiffs’ home was defective because Lawson made false assertions in, and omitted pertinent facts from, his affidavit of probable cause submitted to the magistrate. Plaintiffs insist that “[w]hen the false statements are removed and the omissions added, there is no probable cause” for the search. Appellants’ Br. at 23. Second, Plaintiffs contend that Defendants used excessive force in executing the warrant. Plaintiffs argue that Defendants violated the “knock and announce” rule, the rule against unnecessary nighttime home searches, and a state law limiting the jurisdiction of the Wilmington Police Department. These violations are said to demonstrate the unreasonableness of Defendants’ conduct. Finally, Plaintiffs contend that Defendants violated their Equal Protection rights under the Fourteenth Amendment, because the police targeted Plaintiffs’ home for the raid because Plaintiffs are African-Americans.
III.
For reasons that will become apparent hereafter, we first address Plain*310tiffs’ Equal Protection claim. It is based upon a brief portion of the Defendants’ answer to the amended complaint and a brief portion of Lawson’s deposition. Defendants gave the following responses to the following allegations of that complaint:
Complaint (App. at A352)
49. Plaintiffs Walker, Sr., Plaintiff K. Walker, Plaintiff Walker, Jr. and Plaintiff T. Walker have no common identification with the individual being sought by the Defendants other than being African-American with the household surname of Walker.
50. The actions of Defendants traveling out of their jurisdiction were taken because of Plaintiffs’ race.
Answer (App. at A361)
49. Denied. By way of further explanation, the suspect sought was named Dwayne Walker, which is almost identical to the name of Plaintiff DeWayne Walker. Also by way of further explanation, the Dwayne Walker sought was previously transported by someone named Alicia Walker, and Plaintiff Karen Walker’s middle name is Alicia. Also by way of further explanation, Dwayne Walker was the same race as Plaintiff DeWayne Walker, and Alicia Walker was the same race as Plaintiff Karen Alicia Walker.
50. Denied.
Lawson gave the following deposition testimony regarding this segment of the Defendants’ answer:
THE WITNESS: But as far as race, race has nothing to do with this. I mean, the only consistency is that my suspect, he was arrested for homicide, was black, and Mr. Walker and his family are black. And that’s the only thing. But that has nothing to do with oranges or apples. It’s just what it is.
BY MR. BARTOSHESKY:
Q. Are you saying that when you did the DELJIS report on Karen Walker, if that had shown up as a Caucasian woman, would anything have been different in this case?
A. Probably.
Q. And why would that be?
A. Because that would throw up a flag to me that maybe it’s a different Walker from what I was being told.
App. at A232.
Plaintiffs characterize this answer and testimony as admissions by Lawson that “race was a deciding factor in his determination that 118 Dutton should be invaded” and that “if the records did not show that Karen was black, the invasion would not have happened.” Appellants’ Br. at 36. However, this answer and testimony are more properly characterized as showing simply that the police considered Plaintiffs’ race insofar as it made it more probable that there was a familial relationship between Plaintiffs and Dwayne A. Walker. The police were searching for an African-American suspect, so it was reasonable for them, when looking for the suspect’s mother, to seek out an African-American woman. No reasonable jury could conclude from this evidence or from any other evidence in this record that racial animus motivated the search of Plaintiffs’ home.
IV.
The same answer must be given to Plaintiffs’ primary argument in support of their Fourth Amendment unreasonable search claim. They insist that a reasonable jury could conclude from this record that Lawson knew that Karen Walker was not Dwayne A. Walker’s mother before he applied for the search warrant, ie., that his case for probable cause was a wholly fraudulent construct. There is no direct evidence and virtually no circumstantial evidence tending to contradict Lawson’s *311testimony that he did not know this fact at that time. In the absence of some reason why Lawson would mobilize a SWAT team and K-9 Unit to search the home of a family whom he did not know and whom he knew had no connection with Dwayne A. Walker, a reasonable jury could clearly not find that Lawson had the claimed knowledge. The only reason tendered by Plaintiffs is that Plaintiffs are African-Americans. However, as we previously indicated, the record will not support a finding that racial animus was responsible for the search of Plaintiffs’ home.
On the contrary, the evidence dictates a conclusion that the raid on 118 Dutton Drive was the result of an unfortunate mistaken belief that Karen Walker was the mother of Dwayne A. Walker. Moreover, while a more careful and thorough investigation may have avoided this mistake, given the similarity of the names involved, the misspelling of Plaintiff DeWayne Walker, Jr.’s, name on the DELJIS report of the 2003 larceny, and the odds against two families with such similar names living in the vicinity of Wilton, our study of the record convinces us that the allegations of Lawson’s affidavit regarding 118 Dutton Drive being the home of the suspect’s mother could not be found to be knowingly false or made “in reckless disregard of the truth.” Wilson v. Russo, 212 F.3d 781, 787 (3d Cir.2000).
However, this conclusion cannot end our analysis under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), because other allegations were included in Lawson’s affidavit, most importantly that Dwayne A. Walker would indeed be at his mother’s home. Based on the testimony of Lawson and Silvers, a jury could find that Lawson had the same knowledge of the information conveyed by the informant as Silvers had. A jury could, accordingly, further find that the informant, while reliable, (1) did not purport to have had any contact with the suspect, (2) did not purport to know or even to have been told by anyone where the suspect was hiding, and (3) did no more than speculate that the suspect “most likely” went to his mother’s house because that would be characteristic behavior for him. Moreover, viewing the evidence in the light most favorable to Plaintiffs, a jury could find that Lawson knew the informant’s information would not be sufficient to secure a search warrant in the absence of corroboration and, accordingly, directed that surveillance of Plaintiffs’ home be conducted. It could further find that the surveillance produced no evidence of the suspect’s presence there.
It is in this context that a jury could find that Lawson made his representation to the magistrate: “a past proven reliable informant ... stated [that] Walker is currently hiding at his mother’s house in New Castle and is making plans to flee Delaware.” App. at A115. We conclude that this representation regarding the whereabouts of Dwayne A. Walker was not only inaccurate but could be found by a jury to be knowingly false or made in reckless disregard of the truth.
If a jury so concluded, there is no question that the misrepresentation was material for purposes of a Franks analysis. The informant’s “statement” was the only information in the affidavit that provided any reason to believe the suspect was at 118 Dutton Drive. Moreover, while an inconclusive effort at corroboration is normally not material in a search warrant application, where the only pertinent information is as speculative as it was here, we believe that the results of the surveillance could be found to be material.
Thus, when we correct Lawson’s affidavit as instructed by Franks, the only statement supporting probable cause to believe *312the suspect was hiding at 118 Dutton Drive is as follows:
8. A past proven reliable informant first informed Detective Jeff Silvers that Dwayne A. Walker could be found at his sister-in-law’s. When advised that Dwayne A. Walker was not there, the informant indicated that if he wasn’t at the sister-in-law’s house, he would most likely be found at his mother’s because he always runs to her when he’s in trouble. While the informant did not know the mother’s address, he stated that she lived in Wilton. When my investigation provided reason to believe that a Dwayne Walker, Sr., and Karen Walker live at 118 Dutton Drive, I caused that residence to be surveilled for several hours and that surveillance provided no affirmative reason to believe Dwayne A. Walker was present there.
“Probable cause exists to support the issuance of a search warrant if, based on a totality of the circumstances, ‘there is a fair probability that ... evidence of a crime will be found in a particular place.’ ” Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.1997) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). While the reconstructed affidavit supports the proposition that evidence of Dwayne A. Walker’s guilt might conceivably be found at 118 Dutton Drive, a jury could find that it falls short of demonstrating a probability that such would be the case. See Groman v. Twp. of Manalapan, 47 F.3d 628, 635 (3d Cir.1995) (reversing summary judgment for defendant officer because jury could find that he lacked probable cause).
We thus conclude that the District Court erred in granting summary judgment on the Fourth Amendment search claims on the ground that the search warrant was supported by probable cause, and we will remand for further proceedings on those claims. With respect to those claims, the District Court did not reach Lawson’s qualified official immunity defense or the issues raised by the City under Monell v. New York City Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Accordingly, we express no opinion with respect to them.
V.
If a jury determines that the search warrant was invalid, there will be no occasion to address whether the search and seizure were otherwise unreasonable under the Fourth Amendment. Plaintiffs, however, assert a number of additional, affirmative, and independent grounds for reaching that same conclusion and providing a basis for a remedy.
A.
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal citations and quotations omitted). Thus, the proper application of the test of reasonableness “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation,” and this determination must be made “from the perspective of a reasonable officer on the scene, rather *313than with the 20/20 vision of hindsight.” Id. at 396-97, 109 S.Ct. 1865 (citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
In this case, the police, in addition to seeking evidence of a crime, were attempting to arrest a murder suspect. Murder is, of course, a very serious crime that makes it objectively reasonable for the police to deem the suspect potentially dangerous. Thus, it appears that the District Court’s conclusion that having a large, armed SWAT team and a K-9 Unit present was not unreasonable is correct. Additionally, the SWAT team gathered and confined Plaintiffs in the living room, and as soon as the police realized that they were in the wrong place, they explained the situation and left the premises. Under the circumstances at the time, this conduct was not objectively unreasonable and provides no independent basis for holding the search and seizure to be constitutionally unreasonable.
B.
Justice of the Peace Courts in Delaware may issue warrants statewide. Stroik v. State, 671 A.2d 1335, 1338 (Del.1996). We agree with the District Court and with the Court of Appeals for the Tenth Circuit that, when officers have a valid search warrant from a magistrate of the relevant jurisdiction, the requirements of the Fourth Amendment are met even if the executing officers “are acting outside their jurisdiction as defined by state law.” United States v. Green, 178 F.3d 1099, 1106 (10th Cir.1999).
C.
“[T]he method of an officer’s entry into a dwelling [is] among the factors to be considered in assessing the reasonableness of a search and seizure.” Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Under the “knock and announce” rule, “police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry.” Richards v. Wisconsin, 520 U.S. 385, 387, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). However, not “every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.” Wilson, 514 U.S. at 934, 115 S.Ct. 1914.
Thus, a “no-knock” entry “is justified when, ‘the police [] have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.’ ” Kornegay v. Cottingham, 120 F.3d 392, 397 (3d Cir.1997) (quoting Richards, 520 U.S. at 394, 117 S.Ct. 1416). “Courts have upheld dispensing with the knock-and-announce requirement in four situations: (1) the individual inside was aware of the officers’ identity and thus announcement would have been a useless gesture; (2) announcement might lead to the sought individual’s escape; (3) announcement might place the officers in physical peril; and (4) announcement might lead to the destruction of evidence.” Id. (citing Richards, 520 U.S. at 394, 117 S.Ct. 1416; Wilson, 514 U.S. at 935-37, 115 S.Ct. 1914; Bodine v. Warwick, 72 F.3d 393, 397 (3d Cir.1995); United States v. Stiver, 9 F.3d 298, 302 (3d Cir.1993); United States v. Kane, 637 F.2d 974, 978 (3d Cir.1981)).
The District Court concluded that “although the police had conducted surveillance of the house and had officers and dogs positioned outside ..., the record [did] not show that the police knew and had covered all avenues of escape from 118 *314Dutton Drive.” Walker, 579 F.Supp.2d at 575. Accordingly, it held that “it was reasonable for the officers to suspect that knocking and announcing might lead to suspect Walker’s escape.” Id.
The District Court held in the alternative that there was no evidence (1) that Lawson was present at the time of the entry or was otherwise responsible for the manner in which it was effected, or (2) that the “no-knock entry was the result of the City’s policy or failure to train.” Walker, 579 F.Supp.2d at 575 n. 20 (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018). We will affirm the District Court on this claim based on these alternative holdings.
Lawson testified that he was not on site when the entry was made, and there is no evidence to the contrary. Based on the record as a whole, a jury could not find that Lawson was responsible for the manner in which the SWAT team entered the Plaintiffs’ home. Similarly, there is no record evidence from which a jury could find that the City was responsible under Monell for the manner of entry.
D.
Lawson applied for, and was granted, only authorization to search 118 Dutton Drive in the daytime. This is understandable. Section 2308 of Title 11 of the Delaware Code, by which both Lawson and the magistrate were bound, provided as follows:
A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant. For purposes of this section the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m.
As a result, Lawson’s affidavit and the magistrate’s authorization do not address whether a search conducted between 10:00 p.m. and 6:00 a.m. would be reasonable and the authorization was thus limited to a “daytime” search, ie., a search between 6:00 a.m. and 10:00 p.m.
We were confronted with a similar situation in United States ex rel. Boyance v. Myers, 398 F.2d 896 (3d Cir.1968). We ruled as follows:
The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is “unreasonable.” At common law, prior to the adoption of the Fourth Amendment, there was a strong aversion to nighttime searches. Even the odious “writs of assistance” which outraged colonial America permitted search of dwellings only in the daytime. The significance of this aversion of the common law to nighttime searches is underscored by the Supreme Court’s reminder that the search and seizure clause is properly “construed in the light of what was deemed an unreasonable search and seizure when it was adopted.” Carroll v. United States, 1925, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543.
During the early years of the republic this common-law tradition was embodied in two statutes passed by our first Congress that authorized only daytime searches. Thereafter, the reluctance to authorize nighttime searches except under exceptional circumstances continued as an integral part of our jurisprudence. * * *
Here it is claimed that the search, though made late at night, was reasonable because authorized by a warrant issued by a magistrate ... However, the issue whether the search was in fact authorized by the warrant is determin*315able by a reading of the warrant’s simple and unambiguous language. To find that a warrant which is explictly limited to daytime searches legalizes search at any hour of the day or night would be to disregard the magistrate’s actual determination and thus to nullify the requirement of a prior impartial determination that a particular search will be reasonable. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman, or Government enforcement agent.” Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436.
The record does not show, in possible justification for this action, any reason for apprehension that the evidence within the house would be removed, hidden or destroyed before morning. Accordingly, we hold the search constitutionally invalid.
Boyance, 398 F.2d at 897-99 (authorities, acts, statutes, and citations omitted except when quoting).
The District Court correctly understood the teaching of Boyance:
Unless the police had “reason for apprehension that the evidence within the house would be removed, hidden or destroyed before morning[,]” executing the daytime search warrant earlier than 6:00 a.m. would render the search “constitutionally invalid.” United States ex rel. Boyance v. Myers, 398 F.2d 896, 899 (3d Cir.1968). Conversely, executing the daytime search warrant at 6:00 a.m. or later would not.
Walker, 579 F.Supp.2d at 576. The District Court held, however, that the Plaintiffs were bound by an allegation in their amended complaint that the SWAT team entered the residence at “approximately 6:05 a.m.” and, accordingly, that the officers conducted a “daytime” search.
The Court held Plaintiffs to be so bound based on “the sham affidavit doctrine.” Id. It explained that under “the sham affidavit doctrine, ‘a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.’ ” Id. We conclude that the District Court’s application of this well established doctrine in this case results from a misunderstanding of the record and the rationale of the doctrine.
As we explained in Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.2007):
[I]f it is clear that an affidavit is offered solely for the purpose of defeating summary judgment, it is proper for the trial judge to conclude that no reasonable jury could accord that affidavit eviden-tiary weight and that summary judgment is appropriate.
The main practical reason supporting the sham affidavit doctrine is that prior depositions are more reliable than affidavits. The Second Circuit noted in Perma Research [& Development Co. v. Singer Co.] that “[t]he deposition of a witness will usually be more reliable than his affidavit, since the deponent was either cross-examined by opposing counsel, or at least available to opposing counsel for cross-examination.” 410 F.2d [572] at 578 [2d Cir.1969] ... Affidavits, on the other hand, are usually drafted by counsel, whose familiarity with summary judgment procedure may render an affidavit less credible.
Here, the conflict identified by the Court arose when the Plaintiffs sought to rely upon the deposition testimonies of Karen Walker and DeWayne Walker, Jr., that were inconsistent with an allegation in their unverified amended complaint. As the Court noted, the allegation was that the SWAT team burst through the door at *316“approximately 6:05 a.m.” When asked about this segment of the complaint during her subsequent deposition, Karen Walker testified:
Q. Where were you in the house when the police came through the front door?
A. I was actually in the laundry room/ coat closet, and I was about to put on my daughter’s coat when they came in. And looking at this, I see it says approximately 6:05, but it had to be before 6:00 o’clock because I leave out at 6:00. And my son’s alarm clock goes off at 6:00 for him to wake up.
Q. So the statement in there is wrong?
A. By probably about ten minutes, the time.
Q. Okay. When did you realize that the statement was wrong?
A. When I read it.
Q. Where did the statement come from?
A. It came from my husband.
Q. Okay. He was wrong?
A. He wasn’t as accurate. I wouldn’t say, “Wrong.” He just wasn’t to the minute.
App. at A385.
DeWayne Walker, Jr., testified that he was asleep in his room when he was awakened by a “bang at the door.” When asked when the SWAT team left, he testified:
Q. Did they eventually leave?
A. Yes.
Q. About what time did they leave?
A. I know it was before 6:00, because my alarm hadn’t gone off yet.
Q. They left before 6:00?
A. Yes.
Id. at A299. There is thus testimony from which a jury, if permitted, could conclude that the twenty to thirty minute episode was concluded before 6:00 a.m.
The record reveals that neither Plaintiffs’ original complaint nor their amended one was verified by any Plaintiff. Moreover, in context, it is clear that the deposition testimony they sought to rely upon was not created in the face of a motion for summary judgment. Accordingly, we conclude that the “sham affidavit doctrine” is inapposite here.
This does not mean that the allegation that still remains in Plaintiffs’ amended complaint is of no consequence. Pleadings frame the issues to be litigated in each case, and the parties are circumscribed by the positions they take there unless and until an amendment is effected. Plaintiffs could have moved under Fed.R.Civ.P. 15 to amend their amended complaint to conform to their deposition testimony, and they did not. They were not, however, confronted with a contention grounded in the rules of pleading. If that had been Defendants’ position in support of their motion for summary judgment, it is reasonable to expect that a motion to amend would have been filed.
The District Court is in a better position than are we to determine whether an amendment to conform to Plaintiffs’ deposition testimony should be permitted at this stage of the proceedings or whether the averment in the complaint that the intrusion occurred at 6:05 should remain a binding judicial admission. See, e.g., Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 181 (3d Cir.2008). We express no view on that matter. We conclude, however, that Plaintiffs, on remand, should be permitted to file such a motion.
VI.
The District Court’s judgment in favor of Defendants on Plaintiffs’ equal protection claim, excessive force in execution of the warrant claim, and failure to “knock and announce” claim will be affirmed. The judgment with respect to all other claims will be vacated, and this matter will be *317remanded to the District Court for further proceedings consistent with this opinion.
. The informant's sister-in-law is the mother of two of Dwayne A. Walker's children.
. According to the testimony of Plaintiff Karen Walker, Wilton is a housing development in New Castle, Delaware. Plaintiffs' home is not in the Wilton development but is instead about one half-mile from the development.
. Apparently, Dutton Drive and Dutton Court are the same street in New Castle, Delaware. See App. at A204. Plaintiffs do not appear to dispute this point.
. Plaintiffs allege that the front door was locked, and that the police broke down the door in order to enter the premises, forcing it open so violently that it crashed into a table in the foyer area. App. at A385, A398. Defendants contend that the front door was unlocked, and the police simply entered the house. Id. at A136, A185.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Herbert L. Schoenbohm appeals the District Court’s denial of a motion for co-ram nobis relief.1 For the following rea*318sons, we will affirm the judgment of the District Court.2
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. In 1992, a jury convicted Schoenbohm on all three counts of an indictment for crimes involving the theft of long-distance telephone service, in violation of 18 U.S.C. § 1029(a). After considering Schoenbohm’s post-trial motions, the District Court dismissed two of these counts, leaving in place a conviction under 18 U.S.C. § 1029(a)(1) for fraudulent use of a counterfeit access device. The District Court found there was ample evidence to support the verdict on this count. Schoenbohm’s sentence included a term of house arrest, followed by probation, and a $5,000 fíne. Schoenbohm subsequently appealed his conviction to this Court. In an unpublished opinion, we affirmed Schoen-bohm’s conviction for use of a counterfeit access device. (App. at 64 [United States v. Schoenbohm, No. 93-7516, 1994 WL 412914 (3d Cir. Jul. 22,1994) ].)
While his appeal was pending, Schoen-bohm filed a pro se motion in the District Court seeking “relief from judgment” pursuant to Fed.R.Civ.P. 60(b)(3). Rule 60(b)(3) allows a court to relieve a party from a final judgment, order, or proceeding when there is fraud, misrepresentation, or misconduct by an opposing party. The District Court treated the motion as an application for habeas relief under 28 U.S.C. § 2255 and denied the petition. Schoenbohm appealed the denial of his habeas petition to this Court. In an unpublished opinion, we affirmed the District Court’s denial of habeas relief, again finding ample evidence to support Schoen-bohm’s conviction. (App. at 74 [United States v. Schoenbohm, No. 95-7241 (3d Cir. May 9,1996) ].)
Schoenbohm’s third appearance before this Court in this matter finds its genesis in a decision of the Federal Communications Commission (“FCC”). On February 2, 1994, while his direct appeal was pending, Schoenbohm applied to the FCC to renew his ham radio operator’s license. The FCC held a hearing to determine whether his criminal conviction disqualified Schoenbohm from renewing his license. Schoenbohm filed exceptions to an initial adverse decision. The proceeding was then remanded for the taking of additional evidence. On remand, the Administrative Law Judge (“ALJ”) upheld the denial of Schoenbohm’s application. However, in reaching this conclusion, the ALJ found that taped conversations Schoenbohm had with other radio operators did not show that he had used his amateur radio facilities to teach others how to obtain illegal access codes. These same conversations were among the evidence presented against Schoenbohm in this case.
In February 2006, the government sought a writ of garnishment to collect Schoenbohm’s $5,000 fine, with interest. Upon issuance of the writ, Schoenbohm requested a hearing. Relying on the FCC opinion, he moved pro se to vacate his conviction, dismiss the garnishment, and expunge his criminal record via a writ of coram nobis. The District Court denied Schoenbohm’s motions. Schoenbohm now appeals the denial of coram nobis relief to this Court.
II.
The writ of coram nobis is available “to attack allegedly invalid convictions which *319have continuing consequences, when the petitioner has served his sentence and is no longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Stoneman, 870 F.2d 102, 105-06 (3d Cir.1989). Coram nobis is an extraordinary remedy and is appropriate only to correct a “fundamental error” for which “there was no remedy available at the time of trial and where ‘sound reasons’ exist for failing to seek relief earlier.” Id. at 106.3 Recently, the Supreme Court reemphasized that “courts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases.” United States v. Denedo, — U.S. -, -, 129 S.Ct. 2213, 2223, 173 L.Ed.2d 1235 (2009).
Schoenbohm argues that coram nobis is available to him because he has completed his sentence but suffers continuing consequences. These include the government’s effort to collect the fine levied against him and disenfranchisement due to his felony conviction. The government concedes that Schoenbohm is no longer in custody and arguably may suffer continuing consequences due to his conviction.
In support of his request for coram nobis relief, Schoenbohm argues that the government knowingly used false evidence to convict him and that this evidence affected his subsequent appeal and habeas petition. At trial, a taped radio conversation involving Schoenbohm was presented in support of the government’s contention that Schoenbohm instructed listeners on how to obtain illegal access codes. As noted, the FCC, in ruling on his license renewal, found that this conversation had nothing to do with illicit access codes. Instead, the ALJ concluded that Schoen-bohm discussed and demonstrated a third-party’s illegal method of making phone calls using ordinary, publicly-available numbers.
Even if this Court accepted the ALJ’s interpretation of the taped conversation, Schoenbohm’s case does not merit the extraordinary relief requested because the record still contains sufficient evidence to support Schoenbohm’s conviction. On direct appeal, this Court stated that “[18 U.S.C.] § 1029(a)(1) was violated if Seho-enbohm made a single call using a counterfeit access device.” (App. at 56.) At trial, the government presented to the jury substantial additional evidence showing that calls were made using such a device. This evidence included: testimony from multiple witnesses showing that Schoenbohm made calls using illicit codes; his possession of an automatic dialing machine, which could have been used to break into long-distance telephone lines; and a Secret Service agent’s testimony that Schoen-bohm not only admitted to possessing access codes, but also suggested that they “cut a deal.” (Id, at 56-57.) Given this evidence, the jury could have reasonably found that Schoenbohm made at least one long-distance call using a counterfeit access device. Because we find no “fundamental error” in this case, we decline to grant coram nobis relief.
For the foregoing reasons, we will affirm the District Court.
. Coram nobis, which is available only to individuals no longer in custody, refers to “[a] writ of error directed to a court for review of its own judgment and predicated on alleged *318errors of fact” Black's Law Dictionary 388 (9th ed.2009).
. The District Court had jurisdiction under 48 U.S.C. § 1612. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The government also argues that coram no-bis is inappropriate because Schoenbohm has no valid reason for not seeking relief earlier. The Court declines to reach this issue, as it finds no "fundamental error” and,, therefore, the request for coram nobis is without merit.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
The United States appeals from the District Court’s order granting the defendants’ motion to suppress evidence seized during a traffic stop. For the reasons that follow, we will affirm the District Court’s order.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of the issues raised on appeal. On May 22, 2008 at around 9:15 p.m., the Virgin Islands Police Department received an anonymous telephone call from a woman who reported seeing a small boat dropping off what appeared to be illegal immigrants at Robin Bay, St. Croix. The anonymous caller provided no description of the suspects. The dispatcher advised all patrol units of the tip.
Shortly thereafter, Police Officer Heral-do Charles was driving along the shore *321toward Robin Bay when he observed a red pickup truck traveling in the opposite direction with four passengers in the truck bed. The passengers were shirtless and some had towels draped over their shoulders. Based upon the tip, the fact that the men in the truck were shirtless and had towels on them, and his (apparently erroneous) belief that a recent incident relating to the transportation of illegal immigrants had involved a red pickup truck, Officer Charles pulled the truck over and radioed for assistance.
Officer Charles approached the pickup truck, asked the driver to get out of the vehicle, and questioned him. As Officer Charles was questioning the driver, Lieutenant Benjamin Rios arrived at the scene. As Lieutenant Rios approached Officer Charles and the driver, Charles told Rios that “it was okay” because “the individuals were just fishing.” (App.122.) Officer Charles then departed the scene to continue searching for the illegal immigrants while Lieutenant Rios remained with the truck. Rios made no further inquiries as to the occupants’ immigration status, and instead asked them what they had caught while fishing. The defendants pointed to a mesh bag in the truck bed, in which Lieutenant Rios observed undersized baby lobsters; Rios took the bag and emptied its contents on the ground. Rios asked if they had caught anything else, and the defendants showed him an adult-sized lobster. Lieutenant Rios then observed that one of the individuals in the truck bed appeared to be nervous and was attempting to conceal something covered with shirts with his legs. Rios asked what the man was attempting to conceal, no one answered, and Rios removed the shirts, revealing a dead sea turtle.
Defendants were arrested and charged with violating the Endangered Species Act and a Virgin Islands statute criminalizing the possession of undersized lobsters. They moved to suppress the fruits of the search, and, following a two-day evidentia-ry hearing, the District Court granted their motion. The District Court first concluded that Officer Charles had reasonable suspicion to stop the truck to determine whether its occupants were illegal immigrants, although it deemed that conclusion a “very close call.” (App.13.) It found, however, that the suspicion justifying the initial stop was dispelled by Officer Charles’s conversation with the truck’s driver — as evidenced by Charles’s statement to Rios that “it was ok” and that the occupants were local fisherman — and that Rios had no basis to detain and question the occupants any longer after Charles’s statements. The Government filed this timely appeal.
II.
The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C. § 1291. We review the District Court’s factual findings for clear error and exercise plenary review over its legal determinations. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996).
As we now explain, we conclude that the officers lacked reasonable suspicion to stop the pickup truck, and we will therefore affirm the District Court’s suppression order.1 “Generally, for a seizure to *322be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause.” United States v. Torres, 534 F.3d 207, 210 (3d Cir.2008) (citation omitted). “However, under the exception to the warrant requirement established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court has held that police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.” United States v. Mathurin, 561 F.3d 170, 173-74 (3d Cir.2009) (quotations and citations omitted). The Terry exception to the warrant requirement likewise permits a police officer to conduct an investigative stop of an automobile if the officer “has reasonable suspicion that its passengers are engaged in criminal activity.” Id. at 174 (citations omitted). As we recently explained:
Under the reasonable suspicion standard, ... officers are required to have a particularized and objective basis to suspect illegal activity in order to conduct a search. The officers must be able to articulate reasons that led to the search ... that are indicative of behavior in which most innocent people do not engage. We consider the totality of the circumstances in determining whether reasonable suspicion existed at the time of the search. Accordingly, although each individual factor alone may be consistent with innocent behavior, it is sufficient if together they serve to eliminate a substantial portion of innocent travelers.
United States v. Whitted, 541 F.3d 480, 489 (3d Cir.2008) (internal quotations and citations omitted).
We agree with the defendants that Officer Charles did not have reasonable suspicion to stop the pickup truck. As an initial matter, the anonymous telephone call bore almost none of the indicia of reliability to which courts look when considering whether an anonymous tip provides a basis for a justifiable Terry stop. We have explained that the following factors demonstrate the reliability of an anonymous tip:
(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.
(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.
(3) The content of the tip is not information that would be available to any observer. ...
(4) The person providing the information has recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility[.]
Torres, 534 F.3d at 211 (citation omitted). Just one of these five factors — the fact that the activity in question had been “recently witnessed,” id. — is suggestive of the tip’s reliability. The fact that the tip was not communicated in a face-to-face interaction, the inability to hold the tipster responsible for fabricated information, the fact that the tip information would be available to any observer, and the non-predictive quality of the tip all weigh firmly against its reliability. Id.
More fundamentally, the anonymous call, which contained no description of the suspects and did not mention an automobile, certainly did not provide a basis of reasonable suspicion to stop this -particular pickup truck. Nor do we find that the remainder of the circumstances surrounding the Terry stop, together with the minimally reliable tip, were sufficient to show *323the “particularized and objective basis to suspect illegal activity” that was required in order to justify the stop. Whitted, 541 F.3d at 489 (quotations and citations omitted). In arguing that probable cause existed, the Government focuses most strenuously upon three related facts: (1) Robin Bay is an area where immigrants are known to enter St. Croix by water, (2) Officer Charles, a police veteran, was aware of the water-based nature of Robin Bay entries, and (3) the passengers in the pickup truck were shirtless and had towels draped across their shoulders, suggesting the possibility of recent contact with water. We cannot agree with the Government that merely being shirtless and wearing a towel while driving along the shore of a Caribbean island is even remotely “indicative of behavior in which most innocent people do not engage.” Id. (citing Karnes v. Skrutski, 62 F.3d 485, 493 (3d Cir.1995)). To the contrary, the behavior is much more consistent with innocent activities, such as swimming, sunbathing, and fishing, than it is with criminal conduct. The facts upon which Charles relied in attempting to justify the stop simply do not “serve to eliminate a substantial portion of innocent travelers” such that a reasonable suspicion of criminal activity can be said to have existed. Id.; see also Karnes, 62 F.3d at 493.
The Government attempts to bolster the basis for Charles’s suspicion by arguing that “prior to stopping the red pick-up truck, Officer Charles recalled that a red pick-up truck was previously stopped for suspicion of transporting illegal aliens.” (Reply Br. 5.) The record makes plain, however, that the while a red pickup had indeed previously been stopped, the officers “made a check of the vehicle for any suspected illegal aliens[,] ... cleared the vehicle, and the vehicle traveled on.” (App.113.) That is, the prior stop of a red pickup truck, which the Government suggests justified Charles’s suspicion in this case, showed that the pickup was engaged in innocent, not criminal, activity. We certainly cannot conclude that the prior incident involving a red pickup truck provided a reasonable basis to suspect that defendants were engaged in illegal conduct.
In sum, considering the totality of the circumstances, we conclude that Officer Charles lacked reasonable suspicion to justify the traffic stop in this case. We therefore conclude that the evidence seized following the stop was properly suppressed.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. We thus affirm the decision on different grounds than the District Court relied upon, see Morse v. Lower Merion School Dist., 132 F.3d 902, 904 n. 1 (3d Cir.1997) (‘‘[w]e may affirm the lower court's ruling on different grounds, provided the issue which forms the basis of our decision was before the lower court”) (citations omitted), and we do not address the issue of whether Lieutenant Rios’s question about the suspects’ fishing was an independent Fourth Amendment event requiring reasonable suspicion.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Fitzgerald Lightner appeals the district court’s orders denying relief on his 18 U.S.C. § 3582(c)(2) (2006) motion and his subsequent motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Lightner, No. 3:93-cr-00133-FDW-2 (W.D.N.C. Aug. 28, 2009; Oct. 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Lafon Murphy appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 8582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Murphy, No. 5:04-cr-00241-FL-1 (E.D.N.C. Sept. 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Juvenile male (Appellant) appeals the district court’s finding that he was a juvenile delinquent. The court determined that Appellant committed three acts of delinquency: conspiracy to commit larceny, in violation of 18 U.S.C. § 661 (2006); breaking and entering, in violation of N.C. GemStat. § 14-54(a) (2007), as assimilated by 18 U.S.C. §§ 2, 13, 5032 (2006); and larceny, in violation of 18 U.S.C. §§ 2, 661, 5032 (2006). On appeal, Appellant argues that the district court erred in denying his motion to dismiss the criminal information as barred by the Double Jeopardy Clause, and that the court erred in denying his motions for judgment of acquittal because the evidence was insufficient to establish that he participated in the charged crimes. We affirm.
Appellant first argues that his prosecution in the district court violated his rights against double jeopardy because the Commanding Officer of the Marine Corps Base had already taken punitive action against him. This court reviews double jeopardy issues de novo. United States v. Holbrook, 368 F.3d 415, 424 (4th Cir.2004). “The Clause protects only against the imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In analyzing this issue, we follow the framework established in Hudson. 522 U.S. at 99-100, 118 S.Ct. 488. Our review of the record leads us to conclude that the district court properly denied Appellant’s motion to dismiss on Double Jeopardy grounds.
Appellant next argues that the district court erred in denying his motions for judgment of acquittal because the evidence was insufficient to establish his guilt. He does not contest that the charged crimes occurred, but asserts that the evidence did not establish that he was involved in the offenses.
The standard of review in criminal cases where the district court sits in judgment without a jury is well-settled. We review findings on factual issues other than the ultimate issue of guilt using the *419clearly erroneous test. On the ultimate issue of guilt, we review the district court’s finding to determine if it is supported by substantial evidence.
United States v. Lockhart, 382 F.3d 447, 451 (4th Cir.2004). In determining whether the evidence in the record is substantial, this court views the evidence in the light most favorable to the Government, and inquires whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to establish a defendant’s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc). In this case we find that the district court properly denied Appellant’s motions for judgment of acquittal as the evidence was sufficient to establish his guilt.
Accordingly we affirm the district court’s judgment. We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
The attorney appointed to represent Joseph W. Gardiner has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gardiner has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The attorney appointed to represent Carlos Garcia has moved for leave to with*530draw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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COOK, Circuit Judge.
A jury found defendant Jermaine Martin, a previously-convicted felon, guilty of possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court sentenced him to 235 months in prison. Martin appeals, arguing that his sentence was both proeedurally and substantively unreasonable, despite falling within the prescribed sentencing guidelines, and that the minor nature of his crime warrants a downward departure. We disagree, and accordingly affirm the district court’s sentencing determination.
I.
While attempting to apprehend Martin for other reasons, Lexington police arrested him for possessing a firearm as a convicted felon. Following a jury conviction, the Presentence Report assigned Martin an adjusted offense level of 33 as an armed career criminal and a criminal history category of VI, resulting in a Guidelines range from 235 to 293 months. The district court sentenced him to 235 months in prison and ordered that his sentence run concurrently with his undischarged state sentences. Martin voiced no objections during the sentencing hearing. On appeal, however, he questions the reasonableness of his within-Guidelines sentence and argues that his circumstances merit a downward departure to the mandatory statutory minimum sentence of 180 months.
II.
As a preliminary matter, Martin incorrectly characterizes his claim as involving a request for a downward departure. In United States v. Grams, we explained that although both departure and vai'iance claims request outside-Guidelines sentencing, a departure results from the district court’s application of a particular Guidelines provision, while a variance results from the district court’s weighing of 18 U.S.C. § 3553(a) factors. United States v. Grams, 566 F.3d 683, 686-87 (6th Cir.2009). Because Martin’s argument focuses exclusively on § 3553(a) factors, he presents a downward variance claim for our review, and therefore we review his sentence for procedural and substantive reasonableness. See, e.g., United States v. Presley, 547 F.3d 625 (6th Cir.2008) (reviewing grant of a downward variance for reasonableness); United States v. Deveaux, 198 Fed.Appx. 480, 483 n. 1, 484 (6th Cir.2006) (distinguishing failure to vary downward from failure to depart and reviewing variance claim for reasonableness).
Martin criticizes the district court’s failure to consider “significant factors” when declining to vary downward from the guidelines range, suggesting that he challenges the procedural reasonableness of his sentence. But because Martin did not object to his sentence when imposed, we review the district court’s sentencing procedure for plain error affecting substantial rights. United States v. Vonner, 516 F.3d 382, 391-92 (6th Cir.) (en banc), cert. denied, — U.S. -, 129 S.Ct. 68, 172 L.Ed.2d 26 (2008). In the § 3553(a) analysis context, the district court commits plain error only if it fails to consider a factor and its failure stems from “complete ignorance of that factor.” United States v. Houston, 529 F.3d 743, 751-52 (6th Cir.2008) (quoting United States v. Simmons, 501 F.3d 620, 625 (6th Cir.2007)). Martin’s sentencing transcript reflects that the district court considered all § 3553(a) factors; indeed Martin does not argue to the contrary. Instead he claims only that the sentencing court accorded greater weight to some factors than to others, a practice well within the court’s broad discretion. See United States v. Morris, 448 F.3d 929, 932-34 (6th Cir.2006). Thus, finding no plain error, we reject Martin’s procedural reasonableness challenge.
*585Martin alternatively challenges his sentence’s substantive reasonableness, a claim we review for abuse of discretion, regardless of whether the petitioner raised it below. Vonner, 516 F.3d at 389. Sentences, like Martin’s, that fall within the Guidelines range enjoy a rebuttable presumption of substantive reasonableness. Id.
Martin argues that the district court abused its discretion by failing to give adequate weight to his positive attributes, making his sentence substantively unreasonable. We cannot agree because the court referenced all § 3553(a) factors, focusing its attention on both mitigating and aggravating factors that it found most relevant. See United States v. Duane, 533 F.3d 441, 452 (6th Cir.2008). Specifically, the court found that Martin’s history of recidivism and the court’s charge to protect the public warranted a within-Guidelines sentence. In selecting the appropriate sentence, Martin’s positive attributes figured prominently — Martin’s drug-free lifestyle and compliance with authorities during apprehension moved the court to sentence at the low end of the range. Before this court, Martin “merely rehashes these factors and asserts that the court should have balanced them differently,” and thus fails to demonstrate an abuse of discretion, see United States v. Clay, 320 Fed.Appx. 384, 392 (6th Cir.2009), particularly in view of the district court’s nuanced application of § 3553(a) factors. Moreover, though Martin contends that the application of 18 U.S.C. § 924(e)(1) and the Sentencing Guidelines yielded an unreasonable sentence, he offers no evidence to distinguish his case from the “mine run of cases” in which an armed career criminal convicted of firearm possession receives a within-Guidelines sentence. United States v. Mayberry, 540 F.3d 506, 519 (6th Cir.2008) (citing Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). As a result, he fails to overcome the presumption of reasonableness afforded his sentence, and we hold that the district court did not abuse its discretion.
III.
For these reasons, we affirm.
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ORDER
Mary Stephens contracted a potentially fatal skin condition after taking a prescription drug. She brought this negligent failure-to-warn action in Illinois state court against the manufacturer of the drug and *649the pharmacy that filled the prescription. The defendants removed the case to the district court, which ultimately granted the defendants’ motion for summary judgment, concluding that Stephens did not raise a genuine fact issue regarding a breach of duty. We affirm.
As the district court explained, Stephens failed to comply with Northern District of Illinois Local Rule 56.1(b)(3) by failing to oppose summary judgment with a response identifying any dispute with the defendants’ statement of material facts. Because Stephens did not do so, the court enforced Local Rule 56.1(e) by accepting the defendants’ statement of facts as true. According to the defendants, Stephens had developed a urinary tract infection for which Dr. Hy Young Song prescribed the antibiotic Bactrim. Dr. Song phoned in the prescription to a CVS pharmacy owned by defendant Hook-SupeRx. CVS filled the prescription with Bactrim’s generic equivalent, Sulfatrim, which is manufactured by defendant Mutual Pharmaceutical. Stephens took Sulfatrim for more than a week, and then developed skin rashes and swelling in and around her mouth. She sought treatment at a hospital, where, after her condition turned critical, she was diagnosed with Stevens-Johnson Syndrome (“SJS”), a severe skin disease typically caused by an adverse reaction to drugs.
Since it began manufacturing Sulfatrim in the 1980s, Mutual has packaged the drug with an insert listing SJS as a rare but possible side effect. Dr. Song, who has since retired, testified that she regularly prescribed antibiotics like Bactrim and Sulfatrim to treat urinary tract infections. She said that before prescribing the drugs, she made a practice of reading about possible side effects in sources such as the Physicians Desk Reference, and she acknowledged that she knew SJS was a rare but possible side effect when she prescribed Sulfatrim for Stephens.
Stephens filed a two-count negligence complaint. The first count alleged that CVS failed to warn her of the risks of Sulfatrim before filling Dr. Song’s prescription. The second count claimed that Mutual’s labeling of the drug was inadequate to inform her and Dr. Song of the drug’s dangerous propensities.
In granting summary judgment for the defendants, the district court analyzed Stephens’s claim under the learned intermediary doctrine. According to that doctrine, drug manufacturers have a duty to warn prescribing physicians about the risks of prescription drugs. If they satisfy that duty, they can then rely on doctors to pass along the warnings to consumers. See Kirk v. Michael Reese Hosp. and Med. Ctr., 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 392 (1987). Accordingly, a manufacturer can protect itself from a failure-to-warn claim by showing that it adequately informed physicians of the risk associated with a prescription drug. Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 261 Ill.Dec. 744, 764 N.E.2d 35, 42 (2002). The same showing will shield a pharmacist from liability. See Kennedy v. Medtronic, Inc., 366 Ill.App.3d 298, 303 Ill.Dec. 591, 851 N.E.2d 778, 784 (Ill.App.Ct.2006) (holding that a pharmacy’s duty to warn is ordinarily coextensive with that of a prescription drug manufacturer); Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518, 519-20 (Ill.App.Ct.1993). The district eourt concluded that there was no genuine dispute that Dr. Song understood the relationship between Sulfatrim and SJS. Dr. Song, the court found, had become familiar with the product over three decades of practice. In addition to reading the drug’s label, she regularly consulted the Physician’s Desk Reference and relevant medical journals, *650and she testified that she weighed the risks of SJS and other side effects when she called in the prescription for Stephens. Accordingly, the court concluded that the defendants had satisfied their duty to warn under the learned intermediary doctrine.
On appeal Stephens argues that the district court erred by focusing its review on a single side-effect, SJS, while disregarding her claims that she also suffered from “nerve damage/neuropathy.” Stephens argues that the court should not have relied exclusively on the defendants’ version of the facts, and that it erred by refusing to consider additional facts showing that the defendants failed to warn of the risks of nerve damage. However, a district court does not abuse its discretion when, as here, it penalizes a litigant for noncompliance with Local Rule 56.1 and disregards additional facts that a litigant has proposed. See Cichon v. Exelon Generation, 401 F.3d 803, 809-810 (7th Cir.2005); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir.1995).
Stephens also contends that the district court erred by resolving the case on summary judgment because, she insists, a genuine fact issue remains for the jury— whether Mutual’s labeling of Sulfatrim adequately warned about the risks of nerve damage. But Stephens forfeited any claim about nerve damage when she failed to respond to the defendants’ statements of material fact. See Cichon, 401 F.3d at 809-10. And Stephens concedes that there is no genuine dispute that Dr. Song knew SJS was a potential side effect of Sulfatrim when she prescribed the drug.
Stephens’s remaining arguments are meritless. She renews assertions, first raised in her memorandum opposing summary judgment, that CVS negligently prescribed Sulfatrim knowing that she was allergic to one of the drug’s active ingredients. But she made no such allegation in her complaint, so the claim was understandably not addressed. Stephens also argues that the district court erred by failing to grant her leave to amend her complaint. But Stephens never sought leave at any point in the proceedings to amend her complaint. A party may not request leave to amend a complaint after a final judgment unless the judgment has been vacated. Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir.2000).
Accordingly, we AffiRM the district court’s judgment.
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*652ORDER
Illinois prisoner Christopher McDonald is serving a fifty-year sentence for first-degree murder and related crimes he insists he committed in self-defense. After exhausting his state remedies, McDonald filed a petition for a writ of habeas corpus in the district court. See 28 U.S.C. § 2254. The court denied the petition but granted a certificate of appealability on McDonald’s claims that he received ineffective assistance of counsel and was harmed by a series of witness-appearance-bond hearings held by the trial court without his knowledge. We affirm the district court’s denial of McDonald’s petition.
I. Background
The facts before us are sparse and originate in the Illinois appellate court’s decisions on McDonald’s direct appeal and petition for postconviction relief. See People v. McDonald, 322 Ill.App.3d 244, 255 Ill.Dec. 584, 749 N.E.2d 1066 (2001); People v. McDonald, No. 3-02-0650, 341 Ill.App.3d 1124, 304 Ill.Dec. 667, 853 N.E.2d 456 (Ill.App.Ct. Aug. 29, 2003) (unpublished). In February 1999, Derrick Gholston, Lucias Byes, and Courtney Ward rode together in a stolen car with John Gholston at the wheel. As they parked the car, McDonald approached, and an argument ensued. John Gholston got out of the car, and McDonald shot him fatally in the chest and fired at the three men still inside. Ward fled the vehicle unharmed, but the other two passengers were wounded.
After McDonald was indicted, the state petitioned the court for material-witness appearance bonds for Byes and Ward, stating that both men feared for their safety and that Byes planned to leave the area. See 725 ILCS 5/109-3(d) (permitting judge to require any material witness in criminal prosecution to agree in writing to appear at trial and provide for bond forfeiture if witness does not appear). The state also sought an appearance bond for a third potential witness whom McDonald allegedly told about the shooting when the men were incarcerated together at the county jail. Each petition reported that Derrick Gholston, the third passenger, had since been shot and killed, and that the homicide was still under investigation. Without notifying McDonald, the judge conducted ex parte hearings on the petitions and granted all three, setting a $100,000 recognizance bond for each witness. When McDonald learned about the hearings, he moved to have the indictment dismissed, but his motion was denied.
At trial McDonald testified that he had acted in self-defense, and the court thus gave McDonald the option to have the jury instructed on the lesser-included offense of second-degree murder. In Illinois a defendant is guilty of second-degree murder when he commits first-degree murder and “[a]t the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing” but “his belief is unreasonable.” 720 ILCS 5/9-2(a)(2). McDonald declined to offer the instruction, so the jury was instructed only on first-degree murder, which encompasses both intentional homicide and homicide arising from acts that the defendant knows “create a strong probability of death or great bodily harm” to the victim. 720 ILCS 5/9-l(a). The jury convicted McDonald of the latter, as well as unlawful use of a weapon by a felon, two counts of aggravated battery with a firearm, and aggravated discharge of a firearm. The judge sentenced him to concurrent terms of 30 years for first-degree murder, 10 years for aggravated discharge of a firearm, and 5 years for unlawful use of a weapon by a felon. He was also sentenced to consecutive terms of 10 years for each of his two convictions for aggravated battery with a firearm, produc*653ing an aggregate sentence of 50 years’ imprisonment.
On direct appeal McDonald argued, among other things, that his rights to due process and a fair trial were violated when the court held ex parte hearings on the material-witness appearance bonds. He asserted that the ex parte hearings allowed the prosecution to present “inflammatory” allegations to the trial court insinuating that McDonald was responsible for Derrick Gholston’s death; these allegations so biased the judge against him, he argued, that he effectively was prevented from choosing a bench trial. The Illinois appellate court found that “it was clear error” for the trial court not to have notified McDonald of the hearings but concluded that the error was harmless. The state supreme court denied review.
McDonald then filed a pro se postconviction petition arguing, among other things, that his trial counsel was ineffective because he had failed to inform McDonald that his eligibility for good-time credit would differ depending on whether he was convicted of first- or second-degree murder. In Illinois a defendant convicted of first-degree murder is ineligible for good-time credit, whereas a defendant convicted of second-degree murder receives one day of good-time credit for each day served. 730 ILCS 5/3 — 6—3(a)(2), (2.1). If he had known this, McDonald asserted, he would have requested a jury instruction on second-degree murder. The trial court dismissed the petition as frivolous, and the state appellate court affirmed, concluding that eligibility for good-time credit was collateral to McDonald’s conviction and that his lawyer therefore did not have a duty to explain it to him. The state supreme court denied leave to appeal.
McDonald then petitioned the federal district court for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied the petition but granted a certificate of appealability on McDonald’s claims that (1) his trial counsel rendered ineffective assistance in advising him to decline a jury instruction on second-degree murder without informing him of the potential good-time consequences of his decision and (2) his constitutional rights were violated when the trial court held ex parte hearings on the material-witness appearance bonds.
II. Analysis
We review de novo the district court’s denial of McDonald’s petition for a writ of habeas corpus. See Emerson v. Shaw, 575 F.3d 680, 685 (7th Cir.2009). Our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), which constrains us from disturbing a state court’s decision unless it is “contrary to” or “an unreasonable application of’ clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1); Williams v. Thurmer, 561 F.3d 740, 742 (7th Cir.2009).
A. Ineffective Assistance of Counsel
McDonald argues that the state court’s decision on his ineffective-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must show that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that counsel’s errors affected the outcome of the proceedings. 466 U.S. at 687-88, 104 S.Ct. 2052 (1984); Gonzales v. Mize, 565 F.3d 373, 381 (7th Cir.2009). To establish that the state appellate court unreasonably applied Strickland, McDonald must demonstrate that the court’s decision was not only wrong but was objectively unreasonable. See Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Emer*654son, 575 F.3d at 685. This burden is high: A state court’s decision is objectively unreasonable only when it falls “well outside the boundaries of permissible differences of opinion.” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir.2009) (internal quotation marks and citation omitted). When the constitutional standard in question is flexible, as it is under Strickland, we must deny relief if we conclude that the state appellate court “took the constitutional standard seriously and produced an answer within the range of defensible positions.” Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir.2000).
McDonald argues that counsel was ineffective for advising him to give the jury only two options — first-degree murder and acquittal — without fully explaining the potential sentencing consequences of this strategy. First-degree murder in Illinois carries a sentence of 20 years to life imprisonment, with no eligibility for good-time credit. See 730 ILCS 5/5-4.5-20(a); 730 ILCS 5/3-6-3(a)(2)(i). But second-degree murder can be punished by, at most, 20 years’ imprisonment, 730 ILCS 5/5-4.5-30(a), and, because a defendant convicted of second-degree murder presumptively receives day-for-day good-time credit, the maximum amount of time he will serve (if none of his good-time credit is revoked) is 10 years. Although instructing the jury on second-degree murder would have all but eliminated any chance of acquittal, McDonald insists that he would not have chosen the all-or-nothing strategy recommended by his attorney if he had known about the good-time consequences of his decision.
In addressing McDonald’s claim that his attorney’s performance was deficient, the state appellate court began by identifying the proper two-step inquiry for a claim of ineffective assistance of counsel. The court then analogized a defendant’s decision to tender a lesser-included-offense jury instruction to the decision to plead guilty to a reduced charge, see People v. Brocksmith, 162 Ill.2d 224, 205 Ill.Dec. 113, 642 N.E.2d 1230, 1232 (1994) (concluding that, like decision to plead guilty to lesser charge, decision to submit jury instruction on lesser charge is for defendant, not counsel, to make), and explained that an attorney is not ineffective for failing to advise his client of the collateral consequences of a guilty plea. And good-time credit, the court reasoned, is a collateral consequence of a plea because “there is no assurance” that the defendant will receive it. The same conclusion had already been reached at least twice by the state appellate court, People v. Maury, 287 Ill.App.3d 77, 222 Ill.Dec. 623, 678 N.E.2d 30, 33 (1997); People v. Menke, 74 Ill.App.3d 220, 28 Ill.Dec. 274, 390 N.E.2d 441, 443-44 (1979), and has since been affirmed at least twice more, People v. Stewart, 381 Ill.App.3d 200, 320 Ill.Dec. 317, 887 N.E.2d 461, 465 (2008); People v. Frison, 365 Ill.App.3d 932, 303 Ill.Dec. 703, 851 N.E.2d 890, 893 (2006). The court thus concluded that McDonald’s counsel was not ineffective for failing to advise him of the potential good-time consequences of foregoing a jury instruction on second-degree murder. The court never addressed the separate question whether McDonald was prejudiced by counsel’s alleged shortcoming.
On appeal, McDonald’s primary challenge to the state court’s adjudication of his ineffective-assistance claim is that the court unreasonably concluded that good-time credit in Illinois is a collateral consequence of a conviction. He contends that good-time credit is a direct consequence— and thus his attorney was obligated to discuss it with him — because state law provides that prisoners convicted of certain offenses, including second-degree murder, “shall receive one day of good conduct credit for each day” of imprisonment, 730 ILCS 5/3-6-3(a)(2.1) (emphasis added), *655which can only be revoked after a formal administrative proceeding, 7B0 ILCS 5/3-6-3(c). McDonald contrasts this presumptive entitlement to day-for-day credit with the federal good-time scheme, under which a prisoner receives good-time credit only after the Bureau of Prisons concludes that the prisoner complied with institutional disciplinary regulations during the preceding year. See 18 U.S.C. § 3624(b)(1). As further evidence that good-time credit is a direct consequence of a conviction in Illinois, McDonald points out that state courts are permitted to consider a defendant’s presumptive good-time credit when determining his sentence, see People v. Reedy, 186 Ill.2d 1, 237 Ill.Dec. 74, 708 N.E.2d 1114, 1116-17 (1999); People v. Fetter, 227 Ill.App.3d 1003, 169 Ill.Dec. 301, 591 N.E.2d 474, 478 (1992), and that judges must announce at sentencing the period of time the defendant will likely spend in prison as a result of good time, 730 ILCS 5/5 — 4—1 (c — 2); Reedy, 237 Ill.Dec. 74, 708 N.E.2d at 1117.
The question whether good-time credit in Illinois is a direct or collateral consequence of a conviction is a difficult one. But our task on habeas review is not to evaluate whether the state appellate court’s conclusion about good-time credit was incorrect but rather to decide whether its conclusion about counsel’s ineffectiveness was objectively unreasonable under federal law. And, given the difficulty of categorizing good-time credit as a direct or collateral consequence even under federal law, we cannot conclude that the state court’s decision that counsel was effective was “well outside the boundaries of permissible differences of opinion.” Starkweather, 574 F.3d at 402.
The Supreme Court has never adopted the dichotomy between direct and collateral consequences that the Illinois appellate court uses to sort out an attorney’s duties to his client under Strickland. But decisions from the federal appellate courts, though not controlling for purposes of AEDPA, can help us determine whether a state court’s application of Supreme Court precedent was unreasonable. See Burgess v. Watters, 467 F.3d 676, 687 (7th Cir.2006); Jackson v. Frank, 348 F.3d 658, 665 (7th Cir.2003). The federal courts of appeal frequently have concluded that an attorney who fails to inform his client of direct consequences of a conviction is ineffective but that an attorney need not mention collateral consequences.1 See, e.g., Santos-Sanchez v. United States, 548 F.3d 327, 334 (5th Cir.2008); Bustos v. White, 521 F.3d 321, 325 (4th Cir.2008); United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003); McCarthy v. United States, 320 F.3d 1230, 1234 (11th Cir.2003); Santos v. Kolb, 880 F.2d 941, 944-45 (7th Cir.1989). And the federal circuit courts agree that direct consequences are those that are “definite,” “immediate,” and “automatic,” see, e.g., Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir.2005); Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir.2005); Steele v. Murphy, 365 F.3d 14, 17 (1st Cir.2004), such as the minimum amount of time a defendant must serve and the maximum amount of time he may serve, Jamison v. Klem, 544 F.3d 266, 277-78 (3d Cir.2008); Dalton, 402 F.3d at 733. On the other hand, courts have defined collat*656eral consequences as those that, even if they are “automatic,” are “beyond the control and responsibility” of the sentencing court, e.g., Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir.2003); United States v. Amador-Leal, 276 F.3d 511, 516-17 (9th Cir.2002), or are “in the hands of’ another government agency or the defendant himself, Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.1988). The possibility of civil commitment, Steele, 365 F.3d at 17, the loss of federal benefits, United States v. Morse, 36 F.3d 1070, 1072 (11th Cir.1994), deportation, Santos, 880 F.2d at 944-45, and the effect of a guilty plea on future convictions, King v. Dutton, 17 F.3d 151, 153-54 (6th Cir.1994), have all been deemed collateral. Parole eligibility — the consequence most analogous to eligibility for good-time credit — also has been classified as collateral. See Bustos, 521 F.3d at 325-26 (collecting cases). But see Bell v. State, 576 F.2d 564, 566 (4th Cir.1978) (concluding, without deciding whether parole is direct or collateral consequence, that defendant must be informed of ineligibility for parole before pleading guilty); United States v. Smith, 440 F.2d 521, 523-26 (7th Cir.1971) (same); Durant v. United States, 410 F.2d 689, 692 (1st Cir.1969) (same).
Thus, in employing the widely used distinction between direct and collateral consequences to determine whether McDonald received constitutionally defective advice from counsel, the state appellate court did not act unreasonably. And the court’s ultimate conclusion — that good-time credit is indeed collateral — also was not unreasonable. Although an eligible Illinois prisoner has a presumptive entitlement to good-time credit, the amount of credit he actually receives is controlled by variables — including the defendant’s own conduct and, if he misbehaves, the will of the Prisoner Review Board — external to the sentencing court. See 730 ILCS 5/3— 6-3(c). Whether the defendant must earn the credit (as under the federal good-time scheme) or has a presumptive entitlement to it (as under the Illinois scheme), the effect of good-time on the defendant’s sentence is unknowable at the time of sentencing. And, whether right or wrong, it was not objectively unreasonable for the state appellate court to describe this as collateral, and to describe counsel’s silence about it as constitutionally permissible. See Meyer v. Branker, 506 F.3d 358, 368 (4th Cir.2007) (“A consequence is ‘collateral’ when it is uncertain or beyond the direct control of the court.”); Broomes v. Ashcroft, 358 F.3d 1251, 1256-57 (10th Cir.2004) (“A consequence is collateral if it ‘remains beyond the control and responsibility of the district court in which that conviction was entered.’ ”) (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir.2000)).
Because the state appellate court did not unreasonably conclude that McDonald’s eligibility for good-time credit was a collateral consequence of his decision to forego a jury instruction on second-degree murder — and that his attorney thus was not obligated to discuss it with him — we need not consider the prejudice prong of Strickland. See Harris v. United States, 366 F.3d 593, 596-97 (7th Cir.2004).
B. Ex Parte Appearance-Bond Hearings
We turn, then, to the second issue certified for appeal — whether McDonald was harmed by his exclusion from the appearance-bond hearings. Although “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure,” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987), ex parte communications are subject to harmless-error analy*657sis, Rushen v. Spain, 464 U.S. 114, 117-20, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). The state appellate court held that it was error for McDonald to be excluded from the appearance-bond hearings but concluded that the error was harmless because no inflammatory communication occurred at the hearing that could have influenced the trial judge and there was nothing that McDonald’s presence could have done to affect the proceedings. McDonald argues that this was error, but we disagree.
McDonald identifies three ways in which he allegedly was harmed by the ex parte appearance-bond hearings. First, he asserts that the bonds “inevitably ... pressured the witnesses into testifying against” him and that his presence at the hearings would have prevented the trial court from issuing the bonds. But an appearance bond does not “inevitably” pressure the witness to testify in favor of the prosecution. The bond serves as a “forceful reminder” of the witness’s obligation to testify, Pruitt v. McAdory, 337 F.3d 921, 927 (7th Cir.2003), but it does not promise leniency or a reward for testifying in a particular manner. While McDonald may have preferred that the witnesses not appear to testify against him at all, his assertion that the bonds had any effect on the content of their testimony is entirely speculative. And in any event, McDonald was aware of the bonds prior to trial and could have used their existence to undermine the veracity of the witnesses’ testimony if he wished.
Moreover, there is no evidence that McDonald’s presence at the hearings would have had any effect on the issuance of the bonds. Contrary to McDonald’s assertion, the trial judge was not required to make a finding about whether the witnesses’ “supposed fears were groundless” before issuing the bonds. The judge needed only to determine whether the witnesses were material, whether a risk of nonappearance existed so as to justify the use of a recognizance bond, and how much the bond should be. McDonald, 255 Ill.Dec. 584, 749 N.E.2d at 1070. McDonald has not challenged the witnesses’ materiality or suggested that they were not reluctant to testify. Whether he agrees that they had legitimate fears about the repercussions of testifying against him is irrelevant.
Next, McDonald asserts that the “unchallenged allegations” of his “dangerousness” during the hearings so biased the judge against him that he was effectively prevented from opting for a bench trial. Although there is no federal constitutional right to a bench trial, Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); United States v. Clark, 943 F.2d 775, 784 (7th Cir.1991), Illinois recognizes such a right, People v. Gersch, 135 Ill.2d 384, 142 Ill.Dec. 767, 553 N.E.2d 281, 284-85 (1990). Nevertheless, McDonald had already been indicted for first-degree murder, and it is frivolous to argue that the information in the bond petitions had any additional impact on the judge’s impartiality. In any event, McDonald does not assert that he would have waived his right to trial by jury if not for the alleged damage done at the bond hearings, and, as the state appellate court pointed out, he had the opportunity to request a new judge but did not.
Finally, McDonald asserts that his absence from the hearings harmed him because, as a result of the hearings, the trial judge believed that he was dangerous and consequently ordered him shackled during the trial. This argument is procedurally defaulted. McDonald first raised the general issue of shackling in a second petition for postconviction relief, asserting that his right to due process had been violated because he was forced to appear before the jury in shackles without an individual determination that shackling was warranted. People v. McDonald, 364 *658Ill.App.3d 390, 301 Ill.Dec. 357, 846 N.E.2d 960, 963-65 (2006). But McDonald in no way connected the shackling to the ex parte bond hearings and in fact asserted that shackling of felony defendants was standard operating procedure of the sheriffs department at the time of his trial. See id. at 963. The state appellate court concluded that McDonald had waived this general attack on shackling by failing to raise it in an earlier proceeding. McDonald’s new theory connecting the shackling to the bond hearings is an attempted end run around the procedural default, but he is not permitted to raise new theories that the state courts had no opportunity to address. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.2001).
III. Conclusion
Accordingly, we AFFIRM the judgment of the district court.
. Courts distinguish between failing to inform and actively misinforming a defendant about collateral consequences. See, e.g., Beavers v. Saffle, 216 F.3d 918, 925 (10th Cir.2000); Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989); see also Commonwealth v. Padilla, 253 S.W.3d 482 (Ky.2008), cert granted, - U.S. -, 129 S.Ct. 1317, 173 L.Ed.2d 582 (2009) (granting certiorari on question whether misadvice about immigration consequences of conviction can amount to ineffective assistance of counsel). McDonald does not argue that his attorney misinformed him about his eligibility for good-time credit.
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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/8476484/
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ORDER
Michael Reilly pleaded guilty to bank robbery, 18 U.S.C. § 2113(a), and was sentenced to a total of 151 months’ imprisonment, the low end of the applicable guidelines range. Reilly argues that his sentence is unreasonable because the district court failed to adequately consider the sentencing factors in 18 U.S.C. § 3553(a). We affirm the judgment.
In November 2006 Reilly robbed a branch of TCF Bank in Chicago, Illinois, by holding his hand in his pocket and claiming to have a gun. He pleaded guilty to bank robbery despite asserting that he committed the offense during an alcohol-induced blackout. The district court calculated Reilly’s imprisonment range using a total offense level of 29. See U.S.S.G. §§ 4B1.1, 3E1.1. That offense level, coupled with Reilly’s criminal history category of VI, yielded a guidelines imprisonment range of 151 to 188 months.
At sentencing Reilly had no objections to the calculation of the guidelines imprisonment range. He argued, however, that the district court should minimize the effect of his career-offender status on his *663sentence because his chronic alcoholism was the “driving force” behind his current offense and prior convictions. Reilly has 50 prior convictions for misdemeanors (mostly theft) and 6 prior convictions for felonies, including 3 robberies. Reilly explained that he had no control over his alcohol addiction and that stealing was his way of coping. Reilly contended that his criminal history did not exhibit the premeditation and violence typical of career offenders.
Reilly also argued that the district court should impose a sentence below the career-offender guidelines range because, although he needed treatment for his alcohol addiction, he was not guaranteed a spot in the Bureau of Prisons’ substance-abuse treatment program. To support this point, Reilly submitted the psychological evaluation of Dr. Michael Fields who opined that Reilly needs long-term individual therapy, long-term substance-abuse treatment, and psychiatric evaluation to determine whether medication can alleviate some of his emotional and social problems. Although Reilly maintained that a shorter prison sentence would allow him to receive his needed treatment sooner, the presentence investigation report explained the Reilly’s past treatment for alcoholism outside of prison had been ineffective. Also, in her sentencing memorandum, Reilly’s counsel acknowledged that Reilly had been released from federal custody just weeks before the bank robbery in this case and that, after brief stays in a homeless shelter and in jail, he went on a drinking binge before robbing the same TCF Bank branch that he had robbed six years earlier.
At the conclusion of the sentencing hearing, after considering Reilly’s arguments for a below-guidelines sentence, the district court recognized the influence that alcoholism has had on Reilly’s life and his need for treatment. Although it initially asked counsel what psychological evidence Reilly relied on for his claim that alcoholism affected his behavior, the court later acknowledged that “the Bureau of Prisons will see fit to provide some kind of treatment and counseling” because of Reilly’s “major problem in terms of alcoholism.” The court then concluded that 151 months’ imprisonment was an appropriate sentence given the nature of the present offense, Reilly’s long criminal history, the danger he posed to the public, and the prospect that he would receive needed substance-abuse treatment in prison. Before entering judgment, the district court held a second hearing to evaluate the prospects of Reilly receiving the necessary treatment in prison. Reilly’s lawyer stated that Reilly was eligible for the Bureau of Prisons’ intensive drug-treatment program but that a judicial recommendation would help ensure that he received a spot in the program. After agreeing to recommend that Reilly receive needed substance-abuse treatment in prison, the court announced that the 151-month prison sentence would stand.
On appeal Reilly argues that his sentence is unreasonable because the district court failed to adequately consider the effect of his alcoholism and related mental conditions, as contemplated by § 3553(a). In particular, Reilly contends that the district court may not have reviewed the psychological assessment that he submitted in support of his argument for a below-guidelines sentence because the district court seemed initially unaware that he had submitted a psychological evaluation. Reilly also maintains that the district court failed to appreciate that he was not guaranteed placement in the prison treatment program for curbing his alcohol-influenced criminal behavior.
Whether a district court followed the proper procedure for imposing sentence *664after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a question of law that this court reviews de novo. United States v. Mendoza, 510 F.3d 749, 754 (7th Cir.2007). The sentencing court is not required to discuss each of the statutory sentencing factors under § 3553(a); it is enough if the record confirms meaningful consideration of the types of factors set forth in § 3553(a). United States v. Laufle, 433 F.3d 981, 987 (7th Cir.2006). But the sentencing court must respond to a defendant’s nonfrivolous arguments for leniency. See United States v. Acosta, 474 F.3d 999, 1003 (7th Cir.2007) (citing United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)).
To support his argument that the district court’s sentence was procedurally unreasonable because it supposedly ignored his psychological assessment and need for treatment, Reilly relies on United States v. Miranda, 505 F.3d 785 (7th Cir.2007), and United States v. Cunningham, 429 F.3d 673 (7th Cir.2005). In Miranda, this court vacated the defendant’s sentence because the district court failed to address the defendant’s argument that his Schizo-affective Disorder reduced the need for deterrence and rendered him less deserving of punishment. 505 F.3d at 794. Similarly, in Cunningham, this court remanded for resentencing because the district court “passed over in silence the principal argument made by the defendant” that his long history of psychiatric illness and substance abuse called for a below-guidelines sentence. 429 F.3d at 679.
This case differs from both Miranda and Cunningham because, rather than ignoring Reilly’s principal argument for leniency — his alcoholism and need for treatment — the district court expressly recognized his “major problem” with alcoholism. Furthermore, because of its awareness of Reilly’s alcoholism and need for treatment, the court held a second hearing on the likelihood of treatment in prison and, as a result, promised to make “a very strong recommendation to whatever facility [he is] sent to, that they provide [him] treatment.” It is true, as Reilly argues, that the district court initially asked defense counsel if a psychological evaluation supported counsel’s claim that alcoholism influenced Reilly’s behavior, even though counsel had already submitted a psychological evaluation to the court. But later, the court, in the context of discussing Reilly’s need for counseling and treatment, openly recognized his mental-health issues as reflected in that evaluation. See United States v. Nurek, 578 F.3d 618, 626 (7th Cir.2009). Moreover, in the judgment, the district court indicated that it was adopting the facts from the presentence investigation report, which included details regarding Reilly’s lifelong struggle with alcoholism. Accordingly, the district court did not “pass[] over in silence” Reilly’s alcoholism and treatment needs.
In arriving at a sentence, § 3553(a) requires the district court to consider other factors, in addition to Reilly’s psychological condition. The court had to consider Reilly’s life long history of committing thefts and robberies, the need to punish Reilly and to protect the public, and the kinds of sentences available. The court also had to consider the likelihood that prison would enable Reilly to receive effective treatment (a possibility that counsel acknowledged, even though it was not guaranteed) against the reality that, when not in prison, Reilly had either foregone or received ineffective treatment. Reilly’s poor performance during his recent period of supervised release was also a relevant consideration. Under these circumstances, the district court reasonably determined that, despite Reilly’s serious alcoholism, a sentence of 151 *665months’ imprisonment with the possibility of effective treatment was appropriate.
The district court’s choice of sentence is not unreasonable simply because it rejected Reilly’s plea for leniency. See United States v. Trice, 484 F.3d 470, 475 (7th Cir.), cert. denied, 552 U.S. 923, 128 S.Ct. 297, 169 L.Ed.2d 211 (2007); United States v. Gipson, 425 F.3d 335, 337 (7th Cir.2005). The reasons given by the court for imposing a prison sentence of 151 months address the arguments that counsel made, demonstrate meaningful consideration of the record and of the § 3553(a) factors, and are therefore procedurally reasonable. See Rita v. United States, 551 U.S. 338, 358, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Bustamante, 493 F.3d 879, 891-92 (7th Cir.2007), cert. denied, 552 U.S. 1237, 128 S.Ct. 1460, 170 L.Ed.2d 287 (2008). Moreover, this court presumes that Reilly’s sentence is substantively reasonable because it falls within the properly calculated guidelines range, see Miranda, 505 F.3d at 791, and because nothing in the record overcomes this presumption, this court should conclude that Reilly’s sentence is reasonable, see United States v. Garcia, 580 F.3d 528, 540 (7th Cir.2009); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005).
Accordingly, we AFFIRM the judgment of the district court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476486/
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ORDER
Piotr Misiolek pled guilty to separate conspiracies to distribute ecstasy, 21 U.S.C. §§ 846, 841(a)(1), to launder the drug proceeds, 18 U.S.C. § 1956(h), and to transport and sell stolen vehicles, 18 U.S.C. §§ 371, 2312, 2313. He fled the country before sentencing but was apprehended nine months later and returned to U.S. custody. He retained new counsel and moved to withdraw his guilty pleas on the ground that he did not understand the potential penalties. The district court conducted an evidentiary hearing and denied the motion after finding Misiolek not credible. The court then sentenced him to the statutory maximum on each count to run consecutively, totaling 45 years’ imprisonment. Misiolek appeals and argues that he should have been allowed to withdraw his guilty pleas. We affirm the judgment.
Misiolek fenced approximately 20 stolen vehicles and also ran a drug ring that supplied customers with more than 250,000 ecstasy pills, a number equivalent to 31,000 kilograms of marijuana under the sentencing guidelines. He executed a written plea agreement that informed him of the maximum prison terms: 20 years each on the drug and money-laundering counts and 5 years on the stolen-vehicle conspiracy for a total of 45 years. The same information was repeated to Misiolek at the plea hearing, and he acknowledged his understanding.
After Misiolek pled guilty, the probation officer calculated a guideline imprisonment range of 30 years to life based on a total offense level of 42 and criminal history category of I. At the sentencing hearing, however, Misiolek disputed whether the district court was authorized to impose consecutive prison terms to impose a total sentence within the guideline range. The district court postponed the sentencing to permit the parties to brief that question. *667Misiolek, a Polish citizen who was free on bond, took advantage of the delay to flee to Europe. He was arrested in the Czech Republic almost a year later. After his extradition, a new lawyer entered his appearance and Misiolek moved to withdraw his guilty pleas.
In his motion Misiolek claimed that he had not understood the sentencing consequences of his guilty pleas and thus that his pleas were not knowing and voluntary. His former attorney, he said, had told him that the written plea agreement was part of a larger deal under which he would receive a total sentence of seven to ten years. The district court conducted an evidentiary hearing, and both Misiolek and his former attorney testified. Misiolek repeated what he said in his motion. His former attorney denied telling him that he would get only seven to ten years and said he went over the plea agreement and sentencing consequences in detail with Misio-lek. The district court believed the lawyer and not Misiolek, and denied the motion.
The probation officer then revised the presentence report to include an upward adjustment for obstruction of justice based on Misiolek’s flight, see U.S.S.G. § 8C1.1, and to eliminate the recommendation that Misiolek receive credit for acceptance of responsibility under § 3E1.1. These changes increased the guideline imprisonment range to life.
On appeal Misiolek contends that he should have been permitted to withdraw his guilty pleas because he did not understand the total sentence he could receive and was never told that he could plead guilty yet still contest the drug quantity and his leadership role. A defendant may withdraw a guilty plea before sentencing if he “can show a fair and just reason.” Fed.R.Crim.P.ll(d)(2)(B). A plea that is not knowing and voluntary satisfies this standard. United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). In reviewing the denial of a motion to •withdraw a guilty plea, we defer to the district judge’s factual findings unless clearly erroneous, United States v. Pike, 211 F.3d 385, 388 (7th Cir.2000), and will uphold the ruling on the motion unless the judge abused his discretion, United States v. Singleton, 588 F.3d 497, 500 (7th Cir.2009).
Misiolek argues that the district court’s credibility findings were clearly erroneous, but those findings are well supported and thus conclusive. See United States v. Stewart, 198 F.3d 984, 986-87 (7th Cir.1999) (explaining that district court’s credibility finding was dispositive of motion to withdraw guilty plea where court credited defendant’s statements made at plea hearing). In denying the motion to withdraw, the district court quoted from the plea colloquy where Misiolek was told of the potential penalties and acknowledged his understanding. For instance, when the district court asked the prosecutor to state the statutory máximums, he listed the maximum for each individual count and added that “the total of that ... would be a term of imprisonment on the total of the three counts would be 45 years imprisonment.” Misiolek’s former attorney also testified at the evidentiary hearing that he went over with Misiolek in detail the plea agreement and presentence report — both of which mention the possibility of 45 years — so that Misiolek would understand the potential sentencing consequences. In addition, the district court reasoned that Misiolek’s claimed ignorance of the penalty range was undermined by a form he completed just days before the first sentencing hearing to notify the Polish consulate that he would be repatriating with his father in a few weeks.
All of this evidence was weighed against Misiolek’s testimony at the evidentiary hearing that he was ignorant of the maxi*668mum prison sentences and instead thought he would get only seven to ten years. The district court was free to discredit Misio-lek’s testimony and to hold him to the representations he made under oath during the plea colloquy. See United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002) (explaining that district court usually is justified in discrediting proffered reasons for motion to withdraw and holding defendant to admissions made during plea colloquy). And in addressing Misiolek’s credibility the district court fairly relied on the form from the Polish consulate, finding reasonably that the form was not simply for the defendant’s father, as the defendant argued, but was also for and signed by the defendant.
The district court also was free to credit the former attorney’s testimony that he discussed with Misiolek the effect that his leadership role would have at sentencing and never told him he was compelled to accept the government’s view of how the guidelines should be applied. See United States v. Alvarado, 326 F.3d 857, 862 (7th Cir.2003) (declining to second-guess district court’s determination of whom to believe when conflicting testimony is given); United States v. Thornton, 197 F.3d 241, 247 (7th Cir.1999) (“In a swearing contest, the trial judge’s choice of whom to believe will not be rejected unless the judge credited exceedingly improbable testimony.”). As the district court noted in its order, even Misiolek’s new lawyer conceded at the evidentiary hearing that Misiolek has credibility problems.
Misiolek argues that the plea agreement was so lopsided that it offered no benefit to Misiolek and that no defendant who was accurately informed of its terms would have had rational reasons to sign it. The record does not support the argument. The plea agreement contained preliminary guideline calculations that would have produced a final offense level of 41, assuming that the defendant was entitled to a three-level reduction for acceptance of responsibility. With the defendant’s criminal history category of I, the guideline range (the guidelines were still deemed binding at the time of the agreement) would have been 324 months to 405 months, which is well below the maximum 540 months allowed by stacking the statutory maximum terms consecutively. In other words, the preliminary guideline calculations, though not binding on the parties or the court, would have provided a significant benefit to Misiolek if he had stayed to face the court’s sentence rather than fleeing.
Accordingly, the district court properly exercised its discretion in denying Misio-lek’s motion to withdraw his guilty pleas. The judgment is 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/8476488/
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ORDER
Sunday Ayangade was charged under the International Parental Kidnapping Crime Act with interfering with the parental rights of his former wife by removing their two children from the United States. 18 U.S.C. § 1204. Despite ongoing marriage-dissolution and custody proceedings in Indiana state court, Ayangade took the children to Nigeria and gave his brother legal guardianship over them under Nigerian law. Upon his return to the United States, Ayangade was arrested, pleaded guilty to one charge of parental kidnapping, and received a sentence of 24 months’ imprisonment and a $ 2,000 fine. Ayangade filed a notice of appeal, but his appointed attorney is unable to find a non-frivolous basis for the appeal and has moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ayangade responded to the motion with a short letter generally disagreeing with his conviction and sentence. That leaves us, then, with only the potential issues identified in counsel’s facially adequate supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Because Ayangade has told counsel that he wants his guilty plea set aside, counsel first addresses whether there is any basis to challenge the plea. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002). But Ayangade did not seek to withdraw his plea in the district court, so we would examine the plea colloquy for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Sura, 511 F.3d 654, 658 (7th Cir.2007).
Counsel initially considers whether Ayangade might challenge the voluntariness of his plea when the district court did not wholly comply with Rule 11 of the Federal Rules of Criminal Procedure in conducting the plea colloquy. First, the district court did not warn Ayangade that his statements under oath could subject him to perjury charges. Fed.R.CrimP. 11(b)(1)(A). But Ayangade was not harmed by the omission because he is not facing perjury charges. See United States v. Graves, 98 F.3d 258, 259 (7th Cir.1996). Second, Ayangade was not informed of his right to a government-appointed lawyer. Fed.R.CrimP. 11(b)(1)(D). But that rule informs a party merely of his right to appointed counsel “if necessary.” Id. When Ayangade pleaded guilty he was represented by privately obtained counsel, so appointed counsel was not necessary, and the omission was harmless. See United States v. Lovett, 844 F.2d 487, 491-92 (7th Cir.1988). Last, the court did not tell Ayangade that he had the right to testify and present evidence at trial. Fed. R.CrimP. 11(b)(1)(E). But the court did advise Ayangade he did not have to testify if he did not want to and could subpoena witnesses to testify. From this Ayangade could infer that he could choose to testify and present evidence at trial, and Ayan-gade does not claim to have been unaware of these rights. The court’s failure to say more does not rise to the level of plain error. United States v. Driver, 242 F.3d 767, 771 (7th Cir.2001). We agree with *671counsel that any challenge to the plea colloquy would be frivolous.
Counsel next examines whether Ayan-gade could challenge the court’s failure to grant his motion to dismiss the indictment because there were insufficient facts to establish an offense and the kidnapping statute was unconstitutionally vague. But Ayangade’s plea waived on appeal any challenge to the indictment. See United States v. Kingcade, 562 F.3d 794, 797 (7th Cir.2009); United States v. Campbell, 324 F.3d 497, 499 (7th Cir.2003).
Counsel also examines whether Ay-angade could argue that the government breached the plea agreement by asking the court to sentence him “to the fullest extent of the law” rather than recommend a within—range sentence, as set forth in the agreement. The district court, though, construed the government’s request as recommending a sentence at the high end of—but within—the guidelines range, and the government confirmed this interpretation. Accordingly, we agree that the government did not breach the agreement by seeking a within-range sentence.
Counsel next evaluates whether Ayangade could argue that the district court erred in applying a 3-level upward adjustment under U.S.S.G. § 2J1.2(b)(2) on the ground that Ayangade’s kidnapping offense resulted in a substantial interference with the administration of justice. The court applied this adjustment because Ayangade’s removal of the couple’s children from the United States interfered with the ongoing marriage-dissolution and custody proceedings in Indiana state court. By taking the children out of the country and refusing to return them to Indiana, Ayangade effectively prevented the state court from entering any enforceable orders giving Ayangade’s wife custody or visitation rights. Counsel considers whether Ayangade could argue that his conduct was not enough to constitute a substantial interference with the administration of justice, but we would agree with the Second Circuit that an upward adjustment under § 2J1.2(b)(2) is appropriate when the defendant, by taking or retaining his child outside the country, interfered with a state court’s ability to decide where and with whom the child should reside. See United States v. Hasan, 586 F.3d 161, 169 (2d Cir.2009); United States v. Amer, 110 F.3d 873, 885 (2d Cir.1997).
Counsel also examines whether Ay-angade might argue that the court’s sentence of 24 months’ imprisonment was improper because it exceeded the maximum sentence of 21 months recommended by the guidelines. But a sentence outside the guidelines is permissible if it conforms to the sentencing factors under 18 U.S.C. § 3553(a) and the court provides compelling justification for the increase. United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir.2009). Here the court adequately substantiated the three-month increase by explaining that Ayangade compounded the degree of harm by giving his brother guardianship over the children, thereby putting them beyond the reach of their mother in anyway.
Last, counsel examines whether Ayan-gade could challenge the court’s imposition of a $ 2,000 fine because it was below the minimum recommended fine of $ 4,000. We have noted, however, “[i]t is hard to conceive of below-range sentences that would be unreasonably high.” United States v. George, 403 F.3d 470, 473 (7th Cir.2005). We agree with counsel that Ayangade would have no basis to contest his sentence.
Accordingly, the motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
On June 8, 2009, we ordered these cases be returned to the district court on limited remand to query whether the district court wanted to resentence Ray Longstreet and Michael Ervin in light of the Supreme Court’s decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). On December 22, 2009, the district court communicated its desire to resentence the defendants. Accordingly, we Vacate Ray Longstreet’s and Michael Ervin’s sentences and Remand their cases to the district court for resentencing.
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MEMORANDUM **
In these consolidated cases, Hardial Singh and his son, Rajbir Singh, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s decision denying their application for asylum and withholding of removal (No. 06-72831), and the BIA’s order denying Rajbir Singh’s motion to reopen removal proceedings (No. 06-75541). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we review for abuse of discretion the denial of a motion to reopen, and we review de novo ineffective assistance of counsel claims, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part petition No. 06-72831, and we deny petition 06-75541.
The record does not compel the conclusion that changed circumstances excused the untimely filing of petitioners’ asylum application. See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Accordingly, petitioners’ asylum claim fails.
Substantial evidence supports the agency’s determination that petitioners failed to establish past persecution because the harms they personally suffered did not rise to the level of persecution, see Wakkary, 558 F.3d at 1059-60, and they failed to establish that their family members were persecuted on account of a protected ground, see Padash v. INS, 358 F.3d 1161, 1166-67 (9th Cir.2004). We lack jurisdiction to consider petitioners’ contention that they are entitled to withholding of removal as members of a disfavored group because they did not raise the issue in their brief to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Petitioners failed to establish they face a clear probability of future persecution otherwise. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003). Accordingly, their withholding of removal claim fails.
We reject petitioners’ ineffective assistance of counsel claim because any deficiencies in counsel’s representation did not prejudice them. See Castillo-Perez v. INS, 212 F.3d 518, 527 n. 12 (9th Cir.2000) (“Due process challenges to deportation proceedings require a showing of prejudice to succeed.”).
We lack jurisdiction to consider petitioners’ contention that the agency failed to consider reports they submitted regarding the rise of Islamic terrorism in Indonesia because they did not exhaust it. See Barron, 358 F.3d at 678.
Finally, Rajbir Singh waived any challenge to the BIA’s denial of his motion to reopen by failing to address it in the opening brief. See Martinez-Serrano v. *687INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (challenge to denial of motion to reopen not discussed in body of the opening brief was waived).
No. 06-72831: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 06-75441: 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 **
Oscar Antonio Rivas-Cruz, a native and citizen of El Salvador, petitions for review of the Board Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.*6892008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006).
Substantial evidence supports the BIA’s conclusion that Rivas-Cruz’s vocal opposition to the MS-13 gang did not constitute a political opinion. See Santos-Lemus v. Mukasey, 542 F.3d 738, 746-47 (9th Cir.2008) (opposition to gang activity is not a political opinion). We reject Rivas-Cruz’s claim that he is eligible for asylum and withholding of removal based on his membership in a particular social group, namely, young El Salvadorean males who refuse to join gangs. See Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir.2009) (rejecting as a particular social group “young males in Guatemala who are targeted for gang recruitment but refuse because they disagree with the gang’s criminal activities”); Santos-Lemus, 542 F.3d at 745-46 (rejecting as a particular social group “young men in El Salvador resisting gang violence”) (internal quotation omitted). Substantial evidence also supports the BIA’s conclusion that the threats Rivas-Cruz received from a gang member did not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003).
Accordingly, because Rivas-Cruz failed to demonstrate that he suffered harm that rose to the level of persecution or that it was on account of a protected ground, we deny the petition as to his asylum and withholding of removal claims. See Barrios, 581 F.3d at 855-56.
Rivas-Cruz’s contention that the BIA violated jus cogens lacks merit.
Rivas-Cruz does not otherwise challenge the BIA’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived).
Considering our holding in Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir.2009), Rivas-Cruz’ motion to remand is denied.
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 **
Appellants MCI Communications Services, Inc. and MCIMetro Access Transmission Services LLC (collectively “MCI”) appeal the district court’s dismissal of their complaint for lack of subject matter jurisdiction, arguing that the court erred in concluding that the City’s telecommunications registration fees are “taxes” for purposes of the Tax Injunction Act, 28 U.S.C. § 1341 (“TIA”).1 MCI argues that the court also erred dismissing its challenge to the “non-fee” provisions of the City’s telecommunications ordinance as being inextricably entwined with MCI’s challenge to the fee provisions. We have jurisdiction of MCI’s appeal pursuant to 28 U.S.C. § 1291, and we affirm in part and vacate and remand in part.
We review de novo the district court’s Rule 12(b)(1) dismissal of plaintiffs’ challenges to the City’s telecommunications ordinance. Wilbur v. Locke, 423 F.3d 1101, 1109 (9th Cir.2005).
1. The district court dismissed MCI’s claim for declaratory and injunctive relief against enforcement of Eugene, Oregon’s Ordinance No. 20083 for lack of jurisdiction because it concluded that the fee of two percent of gross revenue charged to telecommunications providers owning and operating facilities within the City, plus another seven percent of their gross revenue for the privilege of using public rights-of-way, is a “tax” within the meaning of the TIA as construed in Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 931 (9th Cir.1996), and Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir.2006).2
Bidart and City of Surprise identify the key factors to consider in deciding whether a municipal fee is a “tax” for purposes of the TIA: (1) the entity that imposes the charge; (2) the parties upon whom the charge is imposed; and (3) whether the charge is expended for general public purposes, or used for the regulation or benefit of the parties upon whom the assessment is imposed. Id. Where the first two Bi-dart factors are not dispositive, e.g., if the assessment falls near the middle of the spectrum between a regulatory fee and a classic tax, courts emphasize the third factor — the way in which the revenue is ultimately spent; assessments treated as general revenues are deemed to be “taxes,” as are special funds that are “expended to provide ‘a general benefit to the public.’ ” Bidart, 73 F.3d at 932.
MCI argues that other factors should prove decisive, viz., nomenclature (the ordinance refers to the charges as a “fee,” not a “tax”); footing (“user fees,” particularly fees charged for the use of public *695rights-of-way, are not “taxes”); the nature of the obligation (“voluntary” payment vs. “compulsory” assessment); the method of collection (levy, refund and summary collection procedures available for taxes, not user fees); form of payment (the City may accept telecommunications services as in-kind payment of the 7% license fee (§ 3.415(6))), and federal telecommunications policy (the Telecommunications Act of 1996 intended to provide a federal forum for relief from excessive local fees pre-empted by the Act).
Moreover, MCI argues that applying the Bidart factors, the fees in question are administered by the City Manager, not its tax collectors; they are imposed upon a narrow class of persons, namely telecommunications providers; and the fees are collected to pay for the development and implementation of the City’s regime to regulate telecommunications services within the municipality, not as a general revenue measure.
Concerning MCI’s asserted non -Bidart factors, the fact that Ordinance No. 20083 labels a charge as a “fee” rather than a “tax” is not controlling. See City of Surprise, 434 F.3d at 1183-84 and cases cited therein. Nor is the fact that the charge may be characterized as a “user fee” footed upon the volitional use of public rights-of-way or some other benefit or privilege, rather than a compulsory exaction of revenue. Id. Absent a direct levy on property, the “in-kind” payment of taxes seems unusual — but no less so than in-kind payment of municipal license fees,3 and thus novelty alone does not prove decisive.
Noting that the Supreme Court has interpreted the TIA as a “broad jurisdictional barrier,”4 City of Surprise concluded that the TIA and the state and local tax savings clause of the Telecommunications Act of 1996, § 601(c)(2), 47 U.S.C.A. § 152 note, limit the latter statute’s pre-emptive reach and preclude a federal court from enjoining the assessment of a State or local tax — in that case, exactions assessed upon the gross revenue of telecommunications providers operating or using public rights-of-way -within city limits. 434 F.3d at 1183 & n. 3, 1184. City of Surprise held that “where, as here, an ordinance requires that a telecommunications provider pay a percentage of its gross revenues to the municipality, and the revenue from that charge is directed to the municipality’s general fund, the charge constitutes a tax” for purposes of the TIA. Id. at 1184.
Here, like City of Surprise, Eugene’s Ordinance No. 20083 exacts from MCI specific percentages of its gross revenues. Revenue from the two-percent exaction is placed in a segregated account and is used in part to fund the administration of the City’s telecommunications policies and programs, and in part to replace City equipment and fund new City telecommunications projects that benefit the public at large, e.g., providing Internet access at homeless shelters and expanding the City’s Web portal project to enhance public online access to City information, records and services. Revenue from the seven-percent exaction is deposited in the City’s general fund and is not earmarked for any specific use. In both instances, the district court concluded that the revenue is ex*696pended to provide “ ‘a general benefit to the public,’ ” Bidart, 73 F.3d at 932, rather than providing “ ‘more narrow benefits to regulated companies’” or defraying the City’s costs of regulation. Hexom v. Oregon Dep’t Of Transp., 177 F.3d 1134, 1136 (9th Cir.1999) (quoting San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992)). City of Surprise found such exactions to be taxes for TIA purposes, and counsels a similar result in this case.
MCI argues that we may reach a different result in this case because City of Surprise involved “business license taxes,” not “traditional fees for the use of rights-of-way, such as the 7% fee at issue in this case.”5 In this context, MCI argues that the Telecommunications Act of 1996 — not the TIA — is decisive of the jurisdictional question, and that the 1996 Act empowers the federal courts to determine in every instance whether such local fees are preempted by § 253(a) because they are excessive and non-compensatory. Indeed, MCI posits that Congress intended that such local fees would not be treated as “taxes” at all, and that the TIA plays no part in that analysis.
Yet MCI cites to no case that has adopted or endorsed its blanket theory that in all instances, preemption challenges under § 253(a) to local fees for use of rights-of-way are excepted from the operation of the TIA. To the contrary, City of Surprise expressly held that “where, as here, an ordinance requires that a telecommunications provider pay a percentage of its gross revenues to the municipality” for its use of public rights-of-way, and “the revenue from that charge is directed to the municipality’s general fund, the charge constitutes a tax” for TIA purposes. 434 F.3d at 1184.
This court has previously indicated that we “will not carve out exceptions to the Tax Injunction Act unless Congress clearly expresses an intent to create an exception.” Blangeres v. Burlington Northern, Inc., 872 F.2d 327, 328 (9th Cir.1989). For example, in Union Pacific R. Co. v. Dep’t of Revenue of State of Or., 920 F.2d 581 (9th Cir.1990), Congress had enacted language expressly providing that ‘“[n]ot-withstanding section 1341 of title 28 and without regard to the amount in controversy or citizenship of the parties, a district court of the United States has jurisdiction ... to prevent a violation of ” specific provisions of the Railroad Revitalization and Regulatory Reform Act, from which this court concluded that Congress clearly intended to except the railroad protection provisions from the operation of the TIA. Id. at 583 n. 7 (quoting 49 U.S.C. § 11503(c)).
We find no clear expression of congressional intent in this instance.
A municipal fee that is found to be a “tax” under Bidart falls outside of federal court jurisdiction under the TIA, regardless of whether it might otherwise be deemed reasonable or excessive under § 253, and it may ultimately be saved from § 253(a) preemption by § 601(c)(2) of the 1996 Act, should the question be raised in state court.6 MCI insists that this result frustrates the 1996 Act’s remedial scheme, but if such municipal charges are to be *697entirely excepted from the operation of the TIA regardless of the use of such revenue for the public benefit, then it is for Congress to make that exception, not this court.
“As we said in Bidart, ... ‘the ultimate question remains’ whether it is a tax or something else.” Hexom, 177 F.3d at 1137. Here, the district court’s weighing of the three Bidart factors is decisive.
2. MCI disputes the district court’s reliance on matters outside of the pleadings in determining that the revenue raised under the fee provisions of Ordinance No. 20083 is expended to provide “a general benefit to the public,” and is therefore a “tax” under BidaH. MCI argues that it was entitled to “notice that the issue was in dispute and an adequate opportunity to ascertain and present relevant facts and arguments supporting [its] claim of jurisdiction,” McCulloch v. Velez, 364 F.3d 1, 6 (1st Cir.2004), and that absent such notice and opportunity to be heard, the allegations of the complaint that such revenues are segregated and earmarked must be accepted as true by the district court.
When a party makes a factual attack on the district court’s subject matter jurisdiction under Rule 12(b)(1), the court “need not presume the truthfulness of the plaintiffs’ allegations,” White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). The party asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a Rule 12(b)(1) motion to dismiss, see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), and “unlike a Rule 12(b)(6) motion, in a Rule 12(b)(1) motion, the district court is not confined by the facts contained in the four corners of the complaint — it may consider facts and need not assume the truthfulness of the complaint.” Americopters, LLC v. FAA, 441 F.3d 726, 732 n. 4 (9th Cir.2006).
In support of a motion to dismiss under Rule 12(b)(1),
the moving party may submit “affidavits or any other evidence properly before the court.... It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989) (citations omitted).
Colwell v. Dep’t of Health and Human Serv., 558 F.3d 1112, 1121 (9th Cir.2009); accord Savage v. Glendale Union High School, Dist. No. 205, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003), cert. denied, 541 U.S. 1009, 124 S.Ct. 2067, 158 L.Ed.2d 618 (2004) (“Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.”) Here, the City furnished a declaration and an exhibit in support of its motion to dismiss, including evidence as to the use of the revenues raised under the ordinance for projects benefitting the public and the deposit of the seven-percent license fee revenues in the City’s general fund. MCI did not offer counter-affidavits or other evidence controverting the City’s evidence. Instead, it argued in a footnote that the City’s declaration “cannot be credited by the Court at this stage of the proceedings,” and that “all facts and inferences should be construed in favor of MCI, the non-moving party” — not the standard applicable to a Rule 12(b)(1) motion. See Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983) (“ ‘[n]o presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluat*698ing for itself the merits of jurisdictional claims.’ ”) (quoting Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733 (9th Cir.1979)).
The district court did not err in relying upon facts beyond the four corners of the complaint in deciding the question of subject matter jurisdiction under the TIA. The district court correctly concluded that MCI’s challenge to Ordinance No. 20083’s fee provisions runs afoul of the jurisdictional constraints imposed upon federal courts by the TIA, and we affirm its dismissal of MCI’s complaint to that extent.
3. We disagree with the district court’s conclusion that MCI’s challenges to the “non-fee” provisions of Ordinance No. 20083 were so inextricably intertwined with its challenge to the fee provisions that they were incapable of separate consideration and determination by a federal court consistent with the TIA.
In its complaint, MCI challenged the requirements that telecommunications providers register with the City and obtain City licenses for each qualifying project, subject to the City’s authority to deny or revoke such a license at its discretion, alleging that these requirements imper-missibly burden telecommunications services and thus are preempted by 47 U.S.C. § 253(a). The district court concluded that MCI’s claims centered around the ordinance’s fee provisions and that MCI’s “few other allegations are so entwined with the challenges to the fees themselves that they cannot be practically separated into distinct claims for relief.” Given the fact that the state courts would have jurisdiction to resolve all of MCI’s claims, the district court dismissed MCI’s “non-fee” claims in the name of judicial economy and avoiding piecemeal litigation.
Lending at least some support to the district court’s conclusion is MCI’s own assertion — pleaded on the face of its complaint — that the provisions of Ordinance No. 20083 are non-severable, and thus a successful challenge to one provision of the ordinance would effectively invalidate the entire ordinance.7 If MCI is correct, its challenges to the “non-fee” provisions of Ordinance No. 20083 could ultimately invalidate the remainder of the ordinance, including the fee provisions over which the district court determined it lacked jurisdiction under the TIA.
Upon review, it appears that at least some of MCI’s “non-fee” claims address specific provisions of Ordinance No. 20083 that may be severable from the remainder of the ordinance without affecting its general functionality. For example, MCI challenges a provision of Ordinance No. 20083 that empowers the City to require licensees to build excess capacity into facilities they seek to construct within the city (§ 7.302(4)), obligating a telecommunications provider to construct larger — and more costly — facilities than it really needs or will actually use, all at its own expense. It is conceivable that this provision could be preempted and severed from the balance of the ordinance, leaving a generally functional telecommunications registration and licensing ordinance still in place — one that likely would have been adopted even *699without the challenged excess capacity-provision.
At least to the extent that they challenge provisions of Ordinance No. 20083 that are independent of, and may be sev-erable from, the fee provisions of that ordinance, MCI’s “non-fee” claims are not “inextricably intertwined” with MCI’s challenges to the fee provisions, and should not have been dismissed on that basis.
This matter must be remanded to the district court for further consideration of MCI’s “non-fee” claims in light of Oregon’s severability rules.8 See, e.g., Or.Rev.Stat. § 174.040 (codifying judicially created rule regarding the severability of statutes).
For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART, AND VACATED AND REMANDED IN PART. Each party shall bear its own costs on appeal.
RAWLINSON, Circuit Judge, concurring:
I concur in the result.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The TIA reads:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.
. The district court did not decide whether the fee provisions of the City’s Ordinance No. 20083 either prohibit or may have “the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service,” 47 U.S.C. § 253(a), and thus would be preempted by the Telecommunications Act of 1996, leaving that question to the Oregon state courts.
. None of MCI’s examples of "in-kind" fee payments involved a municipal license fee for use of public rights-of-way, or for other municipal services or benefits.
. Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S. 821, 825, 117 S.Ct. 1776, 138 L.Ed.2d 34 (1997) (observing that the TIA is “first and foremost a vehicle to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes." Id. at 826, 117 S.Ct. 1776 (internal quotation marks omitted)).
. MCI also argues that “the exactions considered in City of Surprise were not fees for the privilege of using public rights-of-way, but instead were taxes that fell on those persons who used the rights-of-way” — a distinction without a material difference, given MCI's extended discussion of “user fees, particularly charges for use of public rights-of-way."
. Of course, a municipal fee that is not found to be a "tax” under Bidart may nevertheless be adjudged by either a federal or state court to be non-compensatory, excessive and burdensome, and thus be preempted by § 253(a).
. In Qwest Commc'ns, Inc. v. City of Berkeley, 433 F.3d 1253 (9th Cir.2006) (overruled on other grounds by Sprint Telephony PCS, LP v. County of San Diego, 543 F.3d 571 (9th Cir.2008) (en banc)), this court concluded that the fee exemption provisions of a municipal telecommunications ordinance were preempted by § 253(a), and were not severable from the remainder of the ordinance — thus invalidating the entire ordinance — notwithstanding the ordinance's severability clause: "it does not appear that the invalid portions of the ordinance can be severed from the valid provisions of the ordinance without affecting the general functionality of the ordinance.” Id. at 1259.
. Severability of a local ordinance is a question of state law. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 556-57 (9th Cir.2004) (as amended).
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MEMORANDUM **
We affirm the district court. Countrywide’s inclusion of the expedited payoff service fee in the loan payoff demand statement was not deceptive within the meaning of the Washington Consumer Protection Act (“CPA”), Rev.Code. Wash. § 19.86.010, et seq., because the payoff demand statement twice unambiguously disclosed that payment of the payoff service fee was not required to release the mortgage lien. Cf. Dwyer v. J.I. Kislak Mortgage Corp., 103 Wash.App. 542, 13 P.3d 240, 243 (2000).
The expedited payoff service was voluntary and extraneous to the mortgage. Beyer nowhere alleged in his complaint that obtaining an expedited written payoff statement was requisite to every Countrywide loan transaction. Therefore, the expedited payoff statement is not part of the “true price” of the mortgage, and failure to disclose the payoff service fee at the time of the original loan transaction was not deceptive. See Robinson v. Avis Rent A Car Sys., Inc., 106 Wash.App. 104, 22 P.3d 818, 824 (2001).
Even assuming the district court erred in dismissing Beyer’s claim alleging *703Countrywide mislabeled the payoff service fee as an “expedited” service, see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995), this error was harmless. Beyer could not have stated a claim on this issue because the payoff statement was faxed and accompanied by automatic updates, and thus the label “expedited” was not misleading. See Dwyer, 13 P.3d at 243 (defining “deceptive”).
Beyer’s complaint did not allege that Countrywide affirmatively misrepresented its refund policy, and it was not deceptive for Countrywide to provide this customer service accommodation only in response to complaints. Cf. Commonwealth ex rel. Zimmerman v. Nickel, 26 Pa. D. & C.3d 115, 127 (Pa.Com.Pl.1983). Beyer failed to state a claim that the refund policy and the notice provision from the Deed of Trust work in tandem to moot class actions, because these business practices do not prevent plaintiffs who choose to bring suit from doing so, and it is not against public policy to resolve disputes before an action is brought. Cf. Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1219 (9th Cir.2008); Dix v. ICT Group, Inc., 160 Wash.2d 826, 161 P.3d 1016, 1022 (2007); Scott v. Cingular Wireless, 160 Wash.2d 843, 161 P.3d 1000, 1006 (2007).
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 **
Appellant Sovereign General Insurance Services, Inc. (“Sovereign”), a licensed surplus fine broker, appeals the district court’s summary judgment in favor of Ap-pellee National Casualty Company (“National”). Sovereign filed a diversity action against National alleging that National had breached its contractual obligation under an errors and omissions insurance policy and acted in bad faith by failing to appoint Cumis counsel to represent Sovereign in an arbitration proceeding in London, England, that was instituted against Sovereign by Certain Underwriters at Lloyd’s of London (“Lloyd’s”). National agreed to defend Sovereign in the Lloyd’s arbitration under a reservation of rights to deny coverage based on an exclusion in the insurance policy barring coverage where Sovereign acted in the capacity of a Managing General Agent. National retained Charles Russell, LLP (“the Charles Russell firm”) to represent Sovereign in the Lloyd’s arbitration. The district court granted sum*707mary judgment in favor of National, concluding that National had no obligation to appoint Cumis counsel for Sovereign in the Lloyd’s arbitration and that National had not acted in bad faith.
We review a grant of summary judgment de novo. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir.2005). We must determine, viewing the evidence in the light most favorable to Sovereign, whether there were any genuine issues of material fact that precluded the district court from granting summary judgment in favor of National. Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999). We conclude that there were no genuine issues of material fact and, accordingly, we affirm.
The obligation to provide Cumis counsel is triggered when the insurer reserves its rights on a coverage issue and the outcome of that coverage issue can be controlled by counsel first retained by the insurer for the defense of the underlying claim asserted against the insured. Cal. Civ.Code § 2860. It is undisputed that National reserved its right to deny coverage for the Lloyd’s claim based on an exclusion in the insurance policy for claims by an insurer for which Sovereign had acted as a Managing General Agent. Thus, the pivotal issue is whether the Charles Russell firm could control the determination of whether Sovereign was acting as a Managing General Agent for Lloyd’s. The district court concluded that the Charles Russell firm could not do so. We agree.
Pursuant to several binding authority agreements between Sovereign and Lloyd’s, Sovereign had delegated claims handling to a licensed claim adjustor, Cunningham Lindsey. Lloyd’s claimed that it had suffered loss as a result of Sovereign’s improper instructions to Cunningham Lindsey and Cunningham Lindsey’s consequent sub-standard claims handling. Notably, Lloyd’s never alleged that Sovereign acted as its Managing General Agent. Nor would simply delegating claims handling to an independent adjustor and failing to properly instruct that independent adjustor amount to acting as a Managing General Agent. Because the Lloyd’s claim and arbitration against Sovereign would not address the coverage issue, the Charles Russell firm did not have the ability to control the outcome of that coverage issue, and National was not required to appoint Cumis counsel.
The district court also correctly granted summary judgment in favor of National on Sovereign’s claim for bad faith. In its complaint, Sovereign alleged that National acted in bad faith by refusing to settle within the policy limits and by failing to appoint Cumis counsel. As to Sovereign’s first bad faith claim, it is undisputed that National subsequently settled within the policy limits. Therefore, Sovereign’s bad faith claim for refusal to settle is moot. As to Sovereign’s second bad faith claim, because National had no obligation to appoint Cumis counsel for the previously stated reasons, National’s refusal to appoint Cumis counsel could not have been in bad faith. See 1231 Euclid Homeowners Ass’n v. State Farm Fire & Cas. Co., 135 Cal.App.4th 1008, 1021, 37 Cal.Rptr.3d 795 (Cal.App.2006). The district court also properly rejected Sovereign’s attempt at summary judgment to assert a third claim of bad faith based on National’s alleged delay and coercion in settling the Lloyd’s claim. Sovereign never pleaded this ground for bad faith in its complaint, and the district court reasonably determined that National would have been unfairly prejudiced if Sovereign were allowed to assert it at the summary judgment stage.
Finally, Sovereign was not deprived of its due process right to oral *708argument. It is well-settled that there is no constitutional due process right to oral argument. Toquero v. I.N.S., 956 F.2d 193, 196 n. 4 (9th Cir.1992). Local Rule 78-280(h) permits a district court to decide cases on the papers alone, and in the absence of objection or request for oral argument, oral argument is waived. Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1200 & n. 2 (9th Cir.1999). Here, the district court did not abuse its discretion by refusing to hear oral argument because Sovereign did not request oral argument, it had notice and ample opportunity to be heard, and it was not prejudiced by the district court’s decision to rule on the motion without a hearing. See Mahon, 171 F.3d at 1200.
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 **
SewChez’s claims against CIT for fraud and breach of contract are premised on the theory that CIT’s prior waivers of its right to demand strict compliance with the terms of the letters of credit formed an implied contract between SewChez and CIT. This theory fails because the letters of credit expressly provide that past waivers of discrepancies create no obligation to waive discrepancies in the future. See also Cal. Com.Code § 5108, comment 7 UCC (“Waiver of discrepancies by an issuer or an applicant in one or more presentations does not waive similar discrepancies in a future presentation.”). This principle applies to SewChez’s dispute with CIT because it is undisputed that CIT meets the definition of “applicant” under the California Commercial Code, see Cal. Com.Code § 5102(a)(2), and SewChez cannot claim that the terms of the contract between CIT and JPMorgan alter *724CIT’s status as an applicant because Sew-Chez was not a party to the contract. Because there was no implied contract between SewChez and CIT, SewChez’s breach of contract claim fails.
Moreover, SewChez’s fraudulent concealment claim likewise fails. Because SewChez and CIT had no contractual relationship, CIT had no duty to disclose its intention to cease waiving discrepancies. See Linear Tech. Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 61 Cal.Rptr.3d 221, 235 (Cal.Ct.App.2007). The out-of-circuit cases cited by SewChez suggesting that a party could be bound by a transaction-specific waiver are inapplicable here because SewChez did not establish that CIT waived discrepancies as to the specific transactions at issue. See Timber Falling Consultants, Inc. v. Gen. Bank, 751 F.Supp. 179, 182-83 (D.Or.1990); U.S. Indus., Inc. v. Second New Haven Bank, 462 F.Supp. 662, 666 (D.Conn.1978).
SewChez’s claim against CIT for unjust enrichment also fails. Because CIT was entitled to refuse to waive discrepancies and exercise its rights as a secured creditor, SewChez failed to allege facts showing CIT’s “receipt of a benefit and the unjust retention of the benefit at the expense of another.” See Peterson v. Cellco P’ship, 164 Cal.App.4th 1583, 80 Cal.Rptr.3d 316, 323 (Cal.Ct.App.2008) (quotation marks, alterations, and citation omitted).
SewChez’s claim against JPMorgan for breach of the covenant of good faith fails for the same reason as SewChez’s claim against CIT for breach of contract, namely, because JPMorgan’s past waivers did not obligate it to continue waiving discrepancies. See Cal. Com.Code § 5108, comment 7 UCC. Moreover, SewChez’s exclusive remedy for the wrongful withholding of payment is a claim for wrongful dishonor. Cal. Com.Code. § 5111(b).
SewChez failed to raise a genuine issue of material fact that each of its invoices was a separate presentment. The uncontested affidavits by JPMorgan’s experts establish that the words “drafts at ... at sight” in Field 42C of the letter of credit mean that a sight draft must be presented to obtain payment under the letter of credit. Because a draft is required, the presentation of a single draft and multiple invoices constitutes a single presentment, which must be honored or dishonored as a whole. See Mueller Co. v. S. Shore Bank, 991 F.2d 14, 17 (1st Cir.1993); see also Cal. Com.Code § 5108(a). Because two of the five invoices SewChez submitted under a single draft were discrepant, JPMorgan’s rejection of this entire presentment was not wrongful.
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 **
Zhilbert Ter-Hohannisyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’s (BIA) 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). We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility determinations for substantial evidence, Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir.2006), *732and we review de novo claims of due process violations, Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir.2007). We deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination. There were inconsistencies between Ter-Hohannisyan’s testimony and his asylum declaration regarding the persecution he suffered as a result of his membership in a political opposition group. These inconsistencies go to the heart of his claim. See Don v. Gonzales, 476 F.3d 738, 741-42 (9th Cir.2007). In addition, Ter-Hohannisyan’s testimony regarding the nature of the political opposition groups to which he and his family allegedly belong was vague and implausible. See Singh-Kaur v. INS, 183 F.3d 1147, 1152-53 (9th Cir.1999). Lastly, the IJ found that Ter-Hohannisyan’s demeanor while testifying tended to show that he was not truthful. See id. at 1151.
Because the IJ had reason to question his credibility, Ter-Hohanni-syan’s failure to provide corroborating evidence further undermines his claim. See Sidhu v. INS, 220 F.3d 1085, 1090-92 (9th Cir.2000). Accordingly, Ter-Hohannisyan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Finally, because Ter-Hohannisyan’s CAT claim is based on testimony the IJ found not credible, and because he points to no other evidence to show it is more likely than not that he would be tortured if returned to Armenia, his CAT claim fails. See id. at 1156-57.
Ter-Hohannisyan has also failed to demonstrate that the IJ violated his right to due process by excluding exhibits and witness testimony pertaining to his wife’s grant of asylum and the political climate in Armenia. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000). Ter-Hohannisyan failed to properly submit the exhibits and testimony in accordance with the immigration court’s local operating procedures and has not demonstrated that substantial prejudice resulted from the IJ’s exclusion of such evidence. 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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*786MEMORANDUM **
Fady Najib Dandaehe, a native and citizen of Lebanon, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and dismissing his appeal from an immigration judge’s decision denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004), and review de novo claims of ineffective assistance of counsel, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
Dandaehe has not raised, and therefore waives, any challenge to the BIA’s denial of his motion to remand. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
We agree with the BIA that Dandaehe did not substantially comply with the threshold requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and has not established prejudice from the alleged ineffective assistance of counsel. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (adopting Lozada requirements, including “an indication that a complaint has been lodged with the bar, or reasons explaining why not”); Azanor, 364 F.3d at 1023 (requiring prejudice to succeed in claim of ineffective assistance of counsel). Accordingly, the agency did not abuse its discretion in denying the motion to reopen.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cír. R. 36-3.
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MEMORANDUM **
Linda Heine-O’Brien appeals the affir-mance of the Administrative Law Judge’s denial of her claim for Social Security disability benefits. Heine-O’Brien argues the ALJ improperly discounted the opinion of her treating physicians and improperly rejected her testimony concerning her pain and physical limitations. We agree. Because the ALJ’s decision was unsupported by the requisite substantial evidence, we reverse.
A. Evaluation of Relevant Medical Opinions
The ALJ rejected the testimony of Heine-O’Brien’s treating physicians based on perceived inconsistencies — both within each report and with other testimony — but did not base his rejections “on clear and convincing reasons supported by specific facts in the record that demonstrate[d] an objective basis for [his] finding.” Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir.2003); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989).
The ALJ cited insignificant differences within the doctors’ individual reports and differences with Heine-O’Brien’s testimony — for example, whether Heine-O’Brien could walk continuously for thirty, or only fifteen, minutes — and found them to demonstrate a lack of credibility. But, he neglected to mention the context in which results were reported, and read the record selectively. The ALJ therefore erred in his evaluation of Heine-O’Brien’s three treating doctors, Drs. Ward, Galvas, and Dube.1
*701B. Evaluation of Heine-O’Brien’s Testimony
The ALJ failed to provide specific, clear and convincing reasons for giving less weight to Heine-O’Brien’s testimony concerning her pain and limitations. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.2007); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.2008). Instead, he grossly overstated Heine-O’Brien’s ability to accomplish various chores, including doing laundry and washing dishes. In fact, Heine-O’Brien’s activities — watching TV, laying down, painting small arts projects, doing basic chores with difficulty — were “so undemanding that they cannot be said to bear a meaningful relationship to the activities of the workplace.” See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.2007).
The ALJ also claimed to find contradictions in Heine-O’Brien’s testimony, but these were, in fact, consistent with both her own testimony and with the opinions of her physicians. Because the ALJ failed to provide clear and convincing reasons on which to base his conclusions, his evaluation of Heine-O’Brien’s testimony and the reports of her physicians does not provide substantial evidence to support the denial of benefits.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Heine-O’Brien waived her challenge to the AU's failure to address Dr. Dube’s testimony, as she ”d[id] not specifically and distinctly argue the issue in ... her opening brief.” United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.2005); see also United States v. Loya, 807 F.2d 1483, 1487 (9th Cir.1987).
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MEMORANDUM **
We affirm the district court. Countrywide’s inclusion of the expedited payoff service fee in the loan payoff demand statement was not deceptive within the meaning of the Washington Consumer Protection Act (“CPA”), Rev.Code. Wash. § 19.86.010, et seq., because the payoff demand statement twice unambiguously disclosed that payment of the payoff service fee was not required to release the mortgage lien. Cf. Dwyer v. J.I. Kislak Mortgage Corp., 103 Wash.App. 542, 13 P.3d 240, 243 (2000).
The expedited payoff service was voluntary and extraneous to the mortgage. Beyer nowhere alleged in his complaint that obtaining an expedited written payoff statement was requisite to every Countrywide loan transaction. Therefore, the expedited payoff statement is not part of the “true price” of the mortgage, and failure to disclose the payoff service fee at the time of the original loan transaction was not deceptive. See Robinson v. Avis Rent A Car Sys., Inc., 106 Wash.App. 104, 22 P.3d 818, 824 (2001).
Even assuming the district court erred in dismissing Beyer’s claim alleging *703Countrywide mislabeled the payoff service fee as an “expedited” service, see Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995), this error was harmless. Beyer could not have stated a claim on this issue because the payoff statement was faxed and accompanied by automatic updates, and thus the label “expedited” was not misleading. See Dwyer, 13 P.3d at 243 (defining “deceptive”).
Beyer’s complaint did not allege that Countrywide affirmatively misrepresented its refund policy, and it was not deceptive for Countrywide to provide this customer service accommodation only in response to complaints. Cf. Commonwealth ex rel. Zimmerman v. Nickel, 26 Pa. D. & C.3d 115, 127 (Pa.Com.Pl.1983). Beyer failed to state a claim that the refund policy and the notice provision from the Deed of Trust work in tandem to moot class actions, because these business practices do not prevent plaintiffs who choose to bring suit from doing so, and it is not against public policy to resolve disputes before an action is brought. Cf. Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1219 (9th Cir.2008); Dix v. ICT Group, Inc., 160 Wash.2d 826, 161 P.3d 1016, 1022 (2007); Scott v. Cingular Wireless, 160 Wash.2d 843, 161 P.3d 1000, 1006 (2007).
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 **
C. Gordon Dillard appeals pro se from the district court’s summary judgment in his action under 42 U.S.C. § 1988 and various state laws claiming that defendants defamed him, conspired against him, and violated his civil rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we affirm.
The district court properly concluded that prosecutor Sanchez was immune from Dillard’s claim that Sanchez hid exculpatory evidence. See Imbler v. Pachtman, 424 U.S. 409, 416, 431 & n. 34, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that a prosecutor has absolute immunity “in initiating a prosecution and in presenting the State’s case,” even where the prosecutor willfully suppressed exculpatory information).
In his second reply brief Dillard contends that Sanchez also improperly coached the police to manufacture evidence prior to the probable cause hearing and empaneling of the grand jury. Dillard did not raise this issue in his notice of appeal or opening brief, see Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990), and has not set forth specific facts showing the existence of a triable issue regarding this claim, see Fed.R.Civ.P. 56(e).
Dillard contends Sanchez made false and misleading statements about him to the media. The district court correctly observed that Dillard did not identify the specific statements allegedly made by Sanchez, or indicate whether the statements were made in court or to the media. Nevertheless, construing Dillard’s contention liberally, as we must, we agree with the district court that Sanchez’s comments, to the extent they are reported in media articles in the record on appeal, were within the bounds of permissible speech. See Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (declining to recognize any substantive right prohibiting a state from publicizing a record of an official act). In addition, Dillard failed to show any stigma beyond damage to reputation as a result of Sanchez’s alleged defamatory statements. See id. at 701-02, *70596 S.Ct. 1155 (requiring “some more tangible interests” than reputation alone to convert alleged “defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause”); see also Wenger v. Monroe, 282 F.3d 1068, 1074-75 (9th Cir.2002).
The district court properly concluded that Dillard failed to provide sufficient information concerning the specific statements published in the Daily Courier that allegedly defamed him. See Fowler v. Donnelly, 225 Or. 287, 358 P.2d 485, 488 (1960) (requiring specificity in an Oregon defamation action). However, construing Dillard’s contentions liberally, and limiting our review to the articles contained in the record on appeal, we agree with the district court that the Courier published the substantial truth. See Shirley v. Freunscht, 81 Or.App. 221, 724 P.2d 907, 910 (1986), rev’d on other grounds 303 Or. 234, 735 P.2d 600 (1987) (applying the substantial truth defense in Oregon).
Dillard objects to the district court’s application of Wallace v. Koto, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), on the ground that it would require him to refile this action in the event certain claims are no longer barred by Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Dillard lacks standing to make this claim because he has not shown he has suffered an actual injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (explaining that constitutional standing requires that “the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical”) (internal citations and quotations omitted).
Dillard contends the police provided the Daily Courier with prejudicial information about the contents of his vehicle discovered during an illegal search. To the extent Dillard seeks to obtain a ruling regarding the constitutionality of the search, his claim is Heck-barred. See 512 U.S. at 487, 114 S.Ct. 2364. To the extent Dillard asserts a defamation claim against the officers, the claim fails because he has not made the showing of “stigma plus” required by Paul, 424 U.S. at 701-02, 96 S.Ct. 1155. See Wenger, 282 F.3d at 1075.
Dillard’s remaining contentions are not persuasive.
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 **
SewChez’s claims against CIT for fraud and breach of contract are premised on the theory that CIT’s prior waivers of its right to demand strict compliance with the terms of the letters of credit formed an implied contract between SewChez and CIT. This theory fails because the letters of credit expressly provide that past waivers of discrepancies create no obligation to waive discrepancies in the future. See also Cal. Com.Code § 5108, comment 7 UCC (“Waiver of discrepancies by an issuer or an applicant in one or more presentations does not waive similar discrepancies in a future presentation.”). This principle applies to SewChez’s dispute with CIT because it is undisputed that CIT meets the definition of “applicant” under the California Commercial Code, see Cal. Com.Code § 5102(a)(2), and SewChez cannot claim that the terms of the contract between CIT and JPMorgan alter *724CIT’s status as an applicant because Sew-Chez was not a party to the contract. Because there was no implied contract between SewChez and CIT, SewChez’s breach of contract claim fails.
Moreover, SewChez’s fraudulent concealment claim likewise fails. Because SewChez and CIT had no contractual relationship, CIT had no duty to disclose its intention to cease waiving discrepancies. See Linear Tech. Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 61 Cal.Rptr.3d 221, 235 (Cal.Ct.App.2007). The out-of-circuit cases cited by SewChez suggesting that a party could be bound by a transaction-specific waiver are inapplicable here because SewChez did not establish that CIT waived discrepancies as to the specific transactions at issue. See Timber Falling Consultants, Inc. v. Gen. Bank, 751 F.Supp. 179, 182-83 (D.Or.1990); U.S. Indus., Inc. v. Second New Haven Bank, 462 F.Supp. 662, 666 (D.Conn.1978).
SewChez’s claim against CIT for unjust enrichment also fails. Because CIT was entitled to refuse to waive discrepancies and exercise its rights as a secured creditor, SewChez failed to allege facts showing CIT’s “receipt of a benefit and the unjust retention of the benefit at the expense of another.” See Peterson v. Cellco P’ship, 164 Cal.App.4th 1583, 80 Cal.Rptr.3d 316, 323 (Cal.Ct.App.2008) (quotation marks, alterations, and citation omitted).
SewChez’s claim against JPMorgan for breach of the covenant of good faith fails for the same reason as SewChez’s claim against CIT for breach of contract, namely, because JPMorgan’s past waivers did not obligate it to continue waiving discrepancies. See Cal. Com.Code § 5108, comment 7 UCC. Moreover, SewChez’s exclusive remedy for the wrongful withholding of payment is a claim for wrongful dishonor. Cal. Com.Code. § 5111(b).
SewChez failed to raise a genuine issue of material fact that each of its invoices was a separate presentment. The uncontested affidavits by JPMorgan’s experts establish that the words “drafts at ... at sight” in Field 42C of the letter of credit mean that a sight draft must be presented to obtain payment under the letter of credit. Because a draft is required, the presentation of a single draft and multiple invoices constitutes a single presentment, which must be honored or dishonored as a whole. See Mueller Co. v. S. Shore Bank, 991 F.2d 14, 17 (1st Cir.1993); see also Cal. Com.Code § 5108(a). Because two of the five invoices SewChez submitted under a single draft were discrepant, JPMorgan’s rejection of this entire presentment was not wrongful.
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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*786MEMORANDUM **
Fady Najib Dandaehe, a native and citizen of Lebanon, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and dismissing his appeal from an immigration judge’s decision denying his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004), and review de novo claims of ineffective assistance of counsel, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
Dandaehe has not raised, and therefore waives, any challenge to the BIA’s denial of his motion to remand. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
We agree with the BIA that Dandaehe did not substantially comply with the threshold requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and has not established prejudice from the alleged ineffective assistance of counsel. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (adopting Lozada requirements, including “an indication that a complaint has been lodged with the bar, or reasons explaining why not”); Azanor, 364 F.3d at 1023 (requiring prejudice to succeed in claim of ineffective assistance of counsel). Accordingly, the agency did not abuse its discretion in denying the motion to reopen.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cír. R. 36-3.
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MEMORANDUM *
Defendant Oscar Roberto Garcia-Labra-da appeals the district court’s imposition of a sentence of forty-three months’ imprisonment for reentering the United States without legal authorization, in violation of 8 U.S.C. § 1326(a), and fifteen months’ imprisonment for violating the terms of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Reviewing for plain error, see Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009), we hold that the government did not breach its agreement not to oppose a two-level reduction for Defendant’s acceptance of responsibility. The prosecutor’s statements at sentencing were entirely proper and were not comparable to the conduct held to have violated the government’s agreement in United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.1999).
2. The district court erred when, during sentencing on the indicted charge, it appeared to apply an upward departure pursuant to U.S.S.G. § 7bl.4, commentary note 4. That departure guideline applies only to terms of imprisonment for revocation of supervised release, not to convictions for violations of 8 U.S.C. § 1326(a). Because Defendant failed to object at sentencing to this aspect of the district court’s reasoning, however, we review for plain error.1 United States v. Benford, 574 F.3d 1228, 1231 (9th Cir.2009). We hold that the error did not affect Defendant’s substantial rights because, after reviewing the record as a whole, we are convinced that the district court would impose the same sentence on remand. In other words, there is no “probability of a different result ... sufficient to undermine confidence in the outcome of the proceeding.” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (internal quotation marks omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Defendant did object to the imposition of a departure on the basis that "departures have been superseded by variances based upon the statutory sentencing scheme and that the Court can only grant variances instead of departures.” The district court properly declined to heed that objection. See United States v. Vanderwerfhorst, 576 F.3d 929, 934-35 (9th Cir.2009) (recognizing the continuing vitality of both departures and variances).
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MEMORANDUM **
Manjit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“U”) decision denying his application for asylum, withholding of removal, and protection under the Convention *900Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence an adverse credibility finding and will uphold the determination unless the evidence compels a contrary result. Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007). We review de novo constitutional due process challenges to immigration decisions. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009). We deny the petition.
Contrary to Singh’s assertion, the record shows the IJ made an explicit adverse credibility determination. Substantial evidence supports the IJ’s adverse credibility finding based on Singh’s submission of a fraudulent medical document. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (upholding agency’s reliance on the submission of fraudulent documents, the genuineness of which went to the heart of the petitioner’s claim). Accordingly, his asylum and withholding claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
The record also belies Singh’s assertion that the IJ and the BIA failed to consider his CAT claim. Substantial evidence supports the agency’s denial of his CAT claim because it is based on the same evidence that the agency found to be not credible, and Singh points to no other evidence showing it is more likely than not he will be tortured. See id. at 1157.
Finally, we reject Singh’s claim that the IJ violated his due process rights by denying his request for a continuance because Singh was not prevented from reasonably presenting his case. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006). The IJ granted Singh a five-month continuance in which to prepare and send interrogatories to the government’s investigators in India in order to attempt to rebut the evidence that the medical document was fraudulent, but Singh failed to do so. Singh did not proffer any other evidence to the IJ at the next hearing. Thus, the IJ did not err in denying another continuance. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
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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PER CURIAM:
Sidney Harrell, appointed counsel for Willie Hinton, has filed a motion to with*45draw from further representation, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because our independent examination of the record reveals no arguable issues of merit, we grant the motion to withdraw.
The jury convicted Hinton of possession with the intent to distribute oxycodone within 1,000 feet of a public housing facility, but in its resentencing order, the district court inadvertently sentenced Hinton for “possession with intent to distribute oxycodone in a school zone.” The penalties for these offenses are identical. See 21 U.S.C. §§ 841(a)(1), 860. We therefore affirm Hinton’s conviction and sentence but remand with instructions to correct the clerical error in the district court’s resen-tencing order. See Fed.R.Crim.P. 36.
MOTION GRANTED. CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR THE LIMITED PURPOSE TO CORRECT CLERICAL ERROR.
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MEMORANDUM *
Defendant Oscar Roberto Garcia-Labra-da appeals the district court’s imposition of a sentence of forty-three months’ imprisonment for reentering the United States without legal authorization, in violation of 8 U.S.C. § 1326(a), and fifteen months’ imprisonment for violating the terms of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Reviewing for plain error, see Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009), we hold that the government did not breach its agreement not to oppose a two-level reduction for Defendant’s acceptance of responsibility. The prosecutor’s statements at sentencing were entirely proper and were not comparable to the conduct held to have violated the government’s agreement in United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.1999).
2. The district court erred when, during sentencing on the indicted charge, it appeared to apply an upward departure pursuant to U.S.S.G. § 7bl.4, commentary note 4. That departure guideline applies only to terms of imprisonment for revocation of supervised release, not to convictions for violations of 8 U.S.C. § 1326(a). Because Defendant failed to object at sentencing to this aspect of the district court’s reasoning, however, we review for plain error.1 United States v. Benford, 574 F.3d 1228, 1231 (9th Cir.2009). We hold that the error did not affect Defendant’s substantial rights because, after reviewing the record as a whole, we are convinced that the district court would impose the same sentence on remand. In other words, there is no “probability of a different result ... sufficient to undermine confidence in the outcome of the proceeding.” United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc) (internal quotation marks omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Defendant did object to the imposition of a departure on the basis that "departures have been superseded by variances based upon the statutory sentencing scheme and that the Court can only grant variances instead of departures.” The district court properly declined to heed that objection. See United States v. Vanderwerfhorst, 576 F.3d 929, 934-35 (9th Cir.2009) (recognizing the continuing vitality of both departures and variances).
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MEMORANDUM **
Baj Singh (“Singh”), a native and citizen of India, petitions for review of the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal of an Immigration Judge’s (“IJ”) decision denying Singh’s applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The IJ denied all relief because she did not find Singh credible. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
We review the IJ’s decision when the BIA adopts and affirms the IJ’s decision by citing to Matter of Burbano, 20 I. & N. *823Dec. 872 (BIA 1994), as it did here. Moreno-Morante v. Gonzales, 490 F.3d 1172, 1174 (9th Cir.2007). We review an IJ’s adverse-credibility finding under the substantial evidence standard. Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir.2004). We will uphold the IJ’s finding if it is “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), and we cannot reverse “unless the evidence presented would compel a reasonable finder of fact to reach a contrary result,” Singh-Kaur v. INS, 183 F.3d 1147, 1149-50 (9th Cir.1999).
The IJ’s decision to grant or deny relief rested primarily on Singh’s testimony, and we defer to the IJ’s determination of credibility because the IJ is in the best position to assess the trustworthiness of the applicant’s testimony. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661 (9th Cir.2003).
Substantial evidence supports the IJ’s finding that Singh was inconsistent in nearly every major aspect of his testimony — each of which went to the heart of his claim — including why the police allegedly arrested him, his brother’s involvement in the arrests, the last time Singh saw his brother, Singh’s brother’s ability and desire to leave India, when Singh learned of his friend’s deportation, and when Singh received a letter from his doctor. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Substantial evidence also supports the IJ’s finding that Singh was unresponsive and evasive regarding Singh’s knowledge of the police’s interest in Singh’s brother and his brother’s friend Roop, why Singh traveled across Canada before entering the United States, why Singh’s doctor’s letter was written in English, when Singh received the doctor’s letter, why the doctor’s letter did not include a date, and what type of abuse his wife allegedly suffered. Finally, substantial evidence supports the IJ’s finding that Singh provided implausible testimony regarding Singh’s lack of knowledge of the police’s motive for allegedly arresting him. Even if we were to credit Singh’s objections to some IJ findings, there remains substantial evidence to support the adverse-credibility finding. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004) (requiring upholding an IJ’s adverse-credibility finding if substantial evidence supports just one of the reasons that the IJ provides).
Moreover, where, as here, a petitioner’s CAT claim is based on statements that are not credible and the petitioner offers no other evidence to support the claim, CAT protection is properly rejected. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003).
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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PER CURIAM:
Jonathan Pinoli, appointed counsel for Oscar Lynden Knowles, has filed a motion to withdraw from further representation, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the district court’s denial of Knowles’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) is AFFIRMED.
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PER CURIAM:
Sidney Harrell, appointed counsel for Willie Hinton, has filed a motion to with*45draw from further representation, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because our independent examination of the record reveals no arguable issues of merit, we grant the motion to withdraw.
The jury convicted Hinton of possession with the intent to distribute oxycodone within 1,000 feet of a public housing facility, but in its resentencing order, the district court inadvertently sentenced Hinton for “possession with intent to distribute oxycodone in a school zone.” The penalties for these offenses are identical. See 21 U.S.C. §§ 841(a)(1), 860. We therefore affirm Hinton’s conviction and sentence but remand with instructions to correct the clerical error in the district court’s resen-tencing order. See Fed.R.Crim.P. 36.
MOTION GRANTED. CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR THE LIMITED PURPOSE TO CORRECT CLERICAL ERROR.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order of April 16, 2009, be affirmed. Appellant has waived his argument that the district court erred in dismissing his claims against the individual appellees based on his failure to effect proper service on them. See United States v. Law, 528 F.3d 888, 908 n. 11 (D.C.Cir.2008) (treating appellant’s “argument as waived because he failed to develop it”). Furthermore, to the extent that appellant has asserted constitutional claims against the United States Tax Court, they are foreclosed by FDIC v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (rejecting extension of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to suits against federal agencies). Regarding appellant’s contention that the district court was biased in favor of the appellees, his allegations of bias arise merely out of adverse judicial rulings, and he has failed to show that Judge Kennedy has manifested a deep-seated favoritism or antagonism that would have rendered a fair judgment impossible. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (adverse judicial rulings alone almost never constitute a valid basis for,a bias or partiality motion); Rafferty v. NYNEX Corp., 60 F.3d 844 (D.C.Cir.1995) (no bias shown where party failed to offer evidence to support his inferred bias from unfavorable judicial rulings and from court delays in ruling on pending motions).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This petition and motion were considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the petition for writ of mandamus and motion for an order authorizing the district court to consider a successive 28 U.S.C. § 2255 application be denied.
Lewis has filed a petition for writ of mandamus and a motion for an order authorizing the district court to consider a successive § 2255 application, see 28 U.S.C. § 2244(b)(3)(A). The relief Lewis requests is premised on his argument that a motion for a sentence reduction based on post-conviction rehabilitation is cognizable under 28 U.S.C. § 2255. It is not. See United States v. Addonizio, 442 U.S. 178, 186-87, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). We therefore deny his petition for a writ of mandamus and motion for an order authorizing the district court to consider a successive § 2255 application.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.
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JUDGMENT
PER CÜRIAM.
This appeal was considered on the record from the United States District Court *163for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 84(j). It is
ORDERED AND ADJUDGED that the district court’s order filed August 28, 2009 be affirmed. The district court did not abuse its discretion by dismissing appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The dismissal without prejudice allows appellant to file a new complaint that meets the requirements of Rule 8(a). See Ciralsky, 355 F.3d at 669-70.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s order filed August 28, 2009 be affirmed. The district court did not abuse its discretion by dismissing appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief....” Fed.R.Civ.P. 8(a). The dismissal without prejudice allows appellant to file a new complaint that meets the requirements of Rule 8(a). See Ciralsky, 355 F.3d at 669-70.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement thereto filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(3). It is
ORDERED AND ADJUDGED that the district court’s order filed October 5, 2009, be affirmed. The district court properly dismissed appellant’s complaint on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order of April 16, 2009, be affirmed. Appellant has waived his argument that the district court erred in dismissing his claims against the individual appellees based on his failure to effect proper service on them. See United States v. Law, 528 F.3d 888, 908 n. 11 (D.C.Cir.2008) (treating appellant’s “argument as waived because he failed to develop it”). Furthermore, to the extent that appellant has asserted constitutional claims against the United States Tax Court, they are foreclosed by FDIC v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (rejecting extension of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), to suits against federal agencies). Regarding appellant’s contention that the district court was biased in favor of the appellees, his allegations of bias arise merely out of adverse judicial rulings, and he has failed to show that Judge Kennedy has manifested a deep-seated favoritism or antagonism that would have rendered a fair judgment impossible. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (adverse judicial rulings alone almost never constitute a valid basis for,a bias or partiality motion); Rafferty v. NYNEX Corp., 60 F.3d 844 (D.C.Cir.1995) (no bias shown where party failed to offer evidence to support his inferred bias from unfavorable judicial rulings and from court delays in ruling on pending motions).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This petition and motion were considered on the record from the United States District Court for the District of Columbia and the briefs and oral arguments of the parties. For the reasons stated below, it is
ORDERED and ADJUDGED that the petition for writ of mandamus and motion for an order authorizing the district court to consider a successive 28 U.S.C. § 2255 application be denied.
Lewis has filed a petition for writ of mandamus and a motion for an order authorizing the district court to consider a successive § 2255 application, see 28 U.S.C. § 2244(b)(3)(A). The relief Lewis requests is premised on his argument that a motion for a sentence reduction based on post-conviction rehabilitation is cognizable under 28 U.S.C. § 2255. It is not. See United States v. Addonizio, 442 U.S. 178, 186-87, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). We therefore deny his petition for a writ of mandamus and motion for an order authorizing the district court to consider a successive § 2255 application.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 340). It is
ORDERED AND ADJUDGED that the district court’s order filed August 28, 2009 be affirmed. The district court did not abuse its discretion by dismissing appellant’s complaint without prejudice on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief....” Fed.R.Civ.P. 8(a). The dismissal without prejudice allows appellant to file a new complaint that meets the requirements of Rule 8(a). See Ciralsky, 355 F.3d at 669-70.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and supplement thereto filed by the appellant. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(3). It is
ORDERED AND ADJUDGED that the district court’s order filed October 5, 2009, be affirmed. The district court properly dismissed appellant’s complaint on the ground that it did not meet the requirements of Federal Rule of Civil Procedure 8(a). See Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). That rule requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To comply with this rule, the complaint should identify the “circumstances, occurrences, and events” that support the claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 n. 3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). The dismissal without prejudice allows appellant to file a new complaint that meets these requirements. See Ciralsky, 355 F.3d at 671.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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*165
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia, the brief filed by appellant, and the motion to expedite. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order dated August 7, 2009, be affirmed, as appellant’s tort claim is frivolous. It is
FURTHER ORDERED that the motion to expedite be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s orders filed July 15, 2008, and February 20, 2009, be affirmed. The district court properly held that Counts I, III, IV, and V are barred by res judicata. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Smalls v. United States, 471 F.3d 186, 192 (D.C.Cir.2006). Appellant’s challenge in Count II to the University of Southern California’s standing to file an opposition in the trademark proceedings fails, because appellant has not shown that the University of Southern California lacked either “a real interest” in the proceedings or a “reasonable basis” for its belief that it would be damaged by registration of the mark. See 15 U.S.C. § 1063(a) (“Any person who believes that he would be damaged by the registration of a mark ... may ... file an opposition.... ”); Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed.Cir.1999) (the opposer need only have “a ‘real interest’ in the proceedings” and a “ ‘reasonable’ basis for his belief of damage” in order to have standing to file an opposition). Nor has appellant shown that the district court abused its discretion in dismissing his claims against the remaining defendants for failure to prosecute. On appeal, appellant does not argue that he timely responded to the district court’s July 15, *1662008 order to show cause. Instead, appellant alleges he served Dr. Macedonia at the University of Southern California’s address. This method of service does not comply with Fed.R.Civ.P. 4(e), and appellant does not allege that he ever provided the district court with proof of service, as required by Fed.R.Civ.P. 4(). As for appellant’s position that pursuant to 15 U.S.C. § 1071(b) he was not required to serve the Trademark Trial and Appeal Board, its judges, the Patent and Trademark Office, and its director, the applicable portion of the statute provides that “[t]he Director [of the PTO] shall not be made a party to an inter partes proceeding under this subsection, but he shall be notified of the filing of the complaint by the clerk of the court....” 15 U.S.C. § 1071(b)(2). Appellant, however, did not bring a typical inter partes trademark case, but filed a civil action naming as defendants the Trademark Trial and Appeal Board, its judges, the U.S. Patent and Trademark Office, and its director, and alleging constitutional and civil rights violations. Accordingly, 15 U.S.C. § 1071 does not relieve appellant from his obligation to serve these parties.
To the extent Solomon seeks judicial review of the Trademark Trial and Appeal Board’s entry of default judgment against him, Solomon has not shown that the Board abused its discretion in imposing this sanction. See 37 C.F.R. § 2.120(g)(1) (“[I]f a party fails to comply with an order of the [Appeal Board] relating to disclosure or discovery ... the Board may make an appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure.”); see also Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168, 1169 (D.C.Cir.1981) (courts are not required to impose a less drastic sanction before entering a default judgment).
The district court did not abuse its discretion in dismissing appellant’s claim against Evans & Sutherland for failure to comply with the notice pleading requirements of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (discussing how the complaint must give fair notice of what the claim is and the grounds upon which it rests); see also Ciralsky v. CIA, 355 F.3d 661, 670 n. 9 (D.C.Cir.2004). Although pro se complaints are liberally construed, they still “must present a claim upon which relief can be granted by the court.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). Solomon’s vague and cursory pleading of his claim against Evans & Sutherland did not provide fair notice of what the claim is or the grounds upon which it rests.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order filed July 28, 2009, be affirmed. Appellant’s claims concern the actions of a judge in the Superior Court of the District of Columbia, but the District of Columbia is “an independent political entity,” not a part of the federal government. Cannon v. United States, 645 F.2d 1128, 1137, n. 35 (D.C.Cir.1981); see also Floyd v. District of Columbia, 129 F.3d 152, 156 (D.C.Cir.1997); Crosby-Bey v. District of Columbia, 786 F.2d 1182, 1186 (D.C.Cir.1986). Moreover, sovereign immunity bars suits against the United States absent an unequivocal waiver. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Appellant has not stated any claim for which there has been a waiver of sovereign immunity.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing and the motion for appointment of counsel and the request to file brief and appendix electronically, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
*168FURTHER ORDERED that the request to file brief and appendix electronically be dismissed as moot, because appellant filed paper copies of his brief. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order filed July 29, 2009, be affirmed, albeit on grounds different from those relied upon by district court. See Jenkins v. Washington Convention Center, 236 F.3d 6, 8 n. 3 (D.C.Cir.2001) (and cases cited therein). Because “a judgment on the merits in a prior suit bars a second suit involving the same parties ... based on the same cause of action,” Taylor v. Blakey, 490 F.3d 965, 969 (D.C.Cir.2007) (internal citation omitted), and because appellant acknowledges in his complaint and his appellate brief that he has filed the same action against the same parties in several courts, appellant’s complaint was properly dismissed. The doctrines of claim and issue preclusion “bar relitigation both of ‘issues that were’ and of issues that ‘could have been raised’ in the prior action.” Id. (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)); see generally NRDC v. EPA, 513 F.3d 257, 260 (D.C.Cir.2008) (standards for claim preclusion); Yamaha Corp. of America v. U.S., 961 F.2d 245, 254 (D.C.Cir.1992) (standards for issue preclusion). This court may raise the res judica-ta preclusion defense sua sponte. See Arizona v. California, 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000); Brown v. D.C., 514 F.3d 1279, 1285-86 (D.C.Cir.2008).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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SUMMARY ORDER
Respondent-Appellant Christopher Finazzo appeals from two separate orders of the United States District Court for the Southern District of New York, issued in two separate actions, concerning the validity of an administrative subpoena issued by the Securities and Exchange Commission (“SEC”) in response to public disclosures by Finazzo’s former employer — Aéropostale, Inc., (“Aéropostale”) — based upon allegedly privileged and misappropriated information. By the first order, the district court (Harold Baer, Jr., Part I Judge) granted the SEC’s application to enforce its administrative subpoenas directed at Finazzo and South Bay. SEC v. Finazzo (“SEC”), 543 F.Supp.2d 224, 225 (S.D.N.Y.2008). By the second order, the district court (Richard J. Sullivan, Judge) dismissed a related action by Finazzo for declaratory and injunctive relief prohibiting the SEC from, inter alia, “ ‘using any information that was obtained directly or indirectly from any privileged sources’ in connection with the SEC’s investigation of Finazzo.” Finazzo v. SEC (“Finazzo”), No. 08 Civ. 2176, 2008 WL 3521351, at *1, 2008 U.S. Dist. LEXIS 62928, at *1 (S.D.N.Y. Aug. 8, 2008).
We assume the parties’ and counsel’s familiarity with the facts and procedural history of the cases, the opinions below, and the issues presented on this appeal.
To establish that an administrative subpoena is prima facie valid and thereby entitled to judicial enforcement pursuant to 15 U.S.C. § 78u(c), the SEC “must show [1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry may be relevant to the purpose, [3] that the information sought is not *171already within the Commissioner’s possession, and [4] that the administrative steps required have been followed.” RNR Enters., Inc. v. SEC, 122 F.3d 93, 96-97 (2d Cir.), cert. denied sub nom., Wells v. SEC, 522 U.S. 958, 118 S.Ct. 386, 139 L.Ed.2d 301 (1997) (internal quotations and modifications omitted). A subpoena may not be enforceable, however, where the target of the subpoena demonstrates that the investigation is “of such a sweeping nature and so unrelated to the matter properly under inquiry as to exceed the investigatory power,” is unreasonable, or was issued in bad faith or for an improper purpose, or that compliance would be unnecessarily burdensome. RNR Enters., 122 F.3d at 97.
Judge Baer did not err in concluding that the SEC had met its burden of demonstrating that the subpoena was prima facie valid. See SEC, 543 F.Supp.2d at 227. Similarly, Judge Baer did not err in concluding that Finazzo had not met his burden of demonstrating that the subpoena was unreasonable, issued in bad faith or for an improper purpose, or that compliance was unnecessarily burdensome. See id. Finazzo’s “sole argument” before the district court was that “the alleged violations of attorney-client privilege by Aéropostale [and its agents] ‘tainted’ the [SEC’s] investigation.” Id. He insisted that the information that served as the basis of the SEC’s interest in him was “fruit of the poisonous tree.” Id. at 228. Finazzo attempts to transplant the “fruit of the poisonous tree” doctrine — a doctrine of criminal law regarding the suppression of evidence as a result of police misconduct — to his situation.1
But as Judge Baer noted, the “admission or suppression of evidence is not before the Court in this subpoena enforcement proceeding.” Id. The SEC’s case against Finazzo, if any, is pre-indictment, and Finazzo will have an opportunity post indictment to litigate issues relating to the admissibility of relevant evidence. Even in criminal cases, where protections are normally greater than in the civil context, a potential defendant is given few opportunities to challenge the nature of the investigation pre-indictment. For example, the Supreme Court recognized in United States v. Calandra that “[b]ecause the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial.” 414 U.S. 338, 349, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). For this reason, the Supreme Court rejected a party’s attempt to invoke the exclusionary rule during grand jury proceedings because “[suppression hearings would halt the orderly progress of an investigation and might necessitate extended litigation of issues only tangentially related to the grand jury’s primary objective” the “probable result [of which] would be protracted interruption of grand jury proceedings, effectively transforming them into preliminary trials on the merits.” Id. (internal quotations and citation omitted).
The analogous rule in the civil context is similar. See, e.g., FTC v. Texaco, Inc., 555 F.2d 862, 879 (D.C.Cir.) (noting that “[a]s *172a general rule, substantive issues which may be raised in defense against an administrative complaint are premature in an [subpoena] enforcement proceeding” because “[i]f parties under investigation could contest substantive issues in an enforcement proceeding, when the agency lacks the information to establish its case, administrative investigations would be foreclosed or at least substantially delayed”), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977).
As noted, Finazzo has failed to make an evidentiary showing to rebut the SEC’s prima facie case. He proffers no evidence regarding any egregious or bad-faith governmental conduct, nor does he claim that the subpoenas improperly seek privileged information or are unduly burdensome.
The central alleged wrongdoing was by Aéropostale and its agents, not the SEC. To the extent that Finazzo was wronged by Aéropostale, he might be able to seek compensation from that entity. In fact, as Finazzo has noted, Aéropostale and he have already reached a confidential accommodation. Moreover, to the extent that Aéropostale acted as a de facto government agent, cf. United States v. Stein, 541 F.3d 130 (2d Cir.2008), Finazzo will have the opportunity to explore these issues should he ever be indicted.
We also affirm Judge Sullivan’s order of dismissal of Finazzo’s declaratory judgment action. We have concluded that “SEC investigations are authorized ‘in its discretion’ by 15 U.S.C. § 78u(a),” Sprecher v. Graber, 716 F.2d 968, 974 (2d Cir.1983), and that “[t]he exclusive method for testing the validity of the SEC’s investigatory motives or methods is a contested subpoena enforcement proceeding under 15 U.S.C. § 78u(c),” Sprecher v. Von Stein, 772 F.2d 16, 18 (2d Cir.1985) (emphasis added). Under these circumstances, Judge Sullivan correctly concluded that Fi-nazzo “may not attempt an end run around [Judge Baer’s] ruling by pursuing this separate action.” Finazzo, 2008 WL 3521351, at *4, 2008 U.S. Dist. LEXIS 62928, at *11.
For the foregoing reasons, the orders are hereby AFFIRMED.
. As a general rule, tangible evidence derived from unconstitutional police conduct, even if seized pursuant to a warrant, must be suppressed. Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). However, the "taint” of the illegal action may be purged where evidence supporting the seizure has a source independent from the illegal conduct, or where the causal link between the offensive police conduct and the evidence is attenuated. See Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
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*174SUMMARY ORDER
Third-party plaintiff-appellant E-21 Global, Inc. (“E21” or “plaintiff”) appeals from an order granting judgment as a matter of law in favor of third-party defendants-appellees, Second Renaissance LLC (“SRLLC”) and Gerald P. Colapinto (“Co-lapinto”) at the close of the evidence in a jury trial for plaintiffs fraud action. Plaintiffs fraud action arose out of its purchases, along with those of Craig Franco (“Franco”), of sublicenses to manufacture and sell reproductions of certain works of art from Bangkok Crafts Corporation (“BCC”) and its assignee, Treasures of St. Peter’s in the Vatican, Ltd. (“TSV”), which had a master license from Capitolo di San Pietro in Vaticano (“Capitolo”). At the time E21 purchased each of its subli-censes, SRLLC and Colapinto were acting as the marketing and sales agents for BCC. In 2002, BCC filed a complaint against Capitolo asserting breach of contract, fraud, conversion, and unjust enrichment, seeking declaratory judgment and specific performance. In 2003, Capitolo filed its answer and counterclaims and also joined all of BCC’s sublicensees, including E21, as counterclaim defendants, alleging unjust enrichment and violations of the Latham Act and New York Unfair Competition Law.
On November 26, 2003, E21 filed a reply to Capitolo’s claims and joined TSV, TSV and Capitolo’s owner, Colapinto, and SRLLC, as additional counterclaim defendants. On June 23, 2004, the District Court granted partial summary judgment to Capitolo on its counterclaim against BCC, finding that the master license Capi-tolo sold to BCC in 2000 was void. On February 8, 2005, the District Court held that, as result of the void master license, the sublicenses BCC issued to E21 in September 2000 were also void. A jury trial on E21 and Franco’s fraud claims against Colapinto and SRLLC was held between March 31, 2008 and April 8, 2008.1 Prior to trial, E21 moved in limine to prohibit defendants from disputing the District Court’s finding that the master license was void. The District Court denied the motion, holding that its grant of partial summary judgment did not constitute res judi-cata or the “law of the case” for purposes of the fraud claims against Colapinto and SRLLC.
At the close of the evidence, the District Court granted defendants’ motion to dismiss pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, based on its conclusion that plaintiffs presented no evidence that Colapinto had knowledge that his fraudulent representations were false or that he had reckless disregard for the truth thereof. E21 appeals from the District Court’s grant of judgment as a matter of law in favor of defendants. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Plaintiff argues that the District Court erred in (1) holding that E21 failed to offer evidence of defendant Colapinto’s intent to defraud, and (2) in prohibiting E21 from putting into evidence the District Court’s prior decision which held the master license between Capitolo and BCC invalid.
We review de novo a district court’s order denying a motion for judgment as a matter of law under Rule 50. See, e.g., Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir.2002). In determining whether judgment as a matter of law is appropriate, the court should “review all of the evidence in the record. In doing so ... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not *175make credibility determinations or weigh the evidence.... [T]he court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations omitted). Judgment as a matter of law is improper unless “the evidence points so strongly in favor of one party that a reasonable jury could reach but one conclusion, in favor of that party ... It should be noted, however, that [a] mere scintilla of evidence is insufficient to present a question for the jury.” Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir.1991) (internal quotation marks and citations omitted).
The District Court concluded that plaintiffs claim for fraud could not stand because plaintiff failed to provide clear and convincing evidence of Colapinto’s scienter. See Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 239 (2d Cir.1999) (“Each element [of a claim for fraud] must be proven by clear and convincing evidence.”) Plaintiff argues that it offered “sufficient evidence from which a reasonable jury could infer that Colapinto’s false and misleading representations were made with the intent to defraud E21.” Appellant’s Br. at 18. However, we agree with the District Court that evidence “from which a reasonable jury could infer” scienter, rather than “clear and convincing” evidence, is insufficient to sustain a claim for fraud. The evidence to which plaintiff draws our attention supports a finding that defendant Colapinto made a false representation of material fact, but it does not by clear and convincing evidence support the claim that Colapinto knew of that falsity or intended to defraud plaintiff. Accordingly, the District Court did not err in finding that plaintiff failed to provide “clear and convincing” evidence sufficient to sustain plaintiffs claim of fraud.
Nor can we conclude that the District Court erred in refusing to consider as the “law of the case” its summary judgment conclusion that Capitolo and BCC’s master license was void. Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, 322 F.3d 147, 167-68 (2d Cir.2003). The District Court’s summary judgment determination did not consider the master license as it concerned SRLLC or Colapinto. Even if it was error to rule that plaintiff could not admit the invalidity of the master license, it was harmless error. Evidence that the master license was valid would not have resolved the issue central to plaintiffs fraud case: namely, whether and when Colapinto and SRLLC knew the master license was void.
We have considered the remainder of plaintiffs arguments and find them to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
. E21’s fraud claims against TSV, TSV's owner, and BCC were settled prior to trial.
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SUMMARY ORDER
Plaintiff, Maureen McNamara, appeals from a judgment entered August 18, 2008 in the United States District Court for the Eastern District of New York (Irizarry, /.). On defendant’s motion, the district court dismissed McNamara’s claims for lack of subject-matter jurisdiction and for failure to state a cause of action. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We have considered McNamara’s arguments, and they are without merit. The majority of her claims fail on one or more of the doctrines of sovereign immunity, official judicial immunity, and standing. Arguably, claims under the ADA; the First Amendment; and the Due Process, Equal Protection, and Guarantee clauses survive; however, to the extent that they do, McNamara has not plausibly pleaded sufficient facts to survive a motion to dismiss. Her CPLR Article 78 claim fails for lack of subject-matter jurisdiction. See Morningside Supermarket Corp. v. N.Y. State Dep’t of Health, 432 F.Supp.2d 334, 346 (S.D.N.Y.2006); Cartagena v. City of N.Y., 257 F.Supp.2d 708, 710 (S.D.N.Y.2003).
We note finally, in dicta, that we do not rely upon the district court’s application of the Rooker-Feldman doctrine in affirming. Rooker-Feldman only applies when the requested federal court remedy of an alleged injury caused by a state court judgment would require overturning or modifying that state court judgment. See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005). Inasmuch as McNamara’s claims challenge the procedures applied in all attorney disciplinary proceedings and seek damages and prospective relief rather than a modification of her suspension or reinstatement orders, her claims would not appear to be barred by Rooker-Feldman. Nevertheless, her claims were properly dismissed for the reasons noted above.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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OPINION
PER CURIAM.
The appellant, Angelo Clark, is a Delaware state prisoner who, at all times relevant to this appeal, was housed at the Delaware Correctional Center (“DCC”).1 On July 31, 2006, Clark filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Delaware against Correctional Medical Systems, the medical care provider at the DCC.2 In the complaint, Clark claimed *269that the defendant had violated his Eighth Amendment rights by providing inadequate medical care. Clark later amended his complaint to allege that the defendant had improperly treated his heart condition, wrongfully prescribed certain medications, and generally misdiagnosed him. He also alleged that he had contracted Hepatitis C from nurses who worked for the defendant.
Following discovery, both parties moved for summary judgment. In support of his motion, Clai’k submitted an “affidavit brief’ in which he stated that the defendant “not only violate[d his] 8th Amendment due process as a human being, [but] they tortured [his] body and soul with Zyprexa, Trassadone, Trilladon, and etc.,” which turned him into “a mad dog with no brain.” (Affidavit/Brief in Support of Summary Judgment 1.) In further support of his motion, Clark attached a copy of his “patient medication education record,” which listed his medications. On the chart, Clark noted that several of these medications made his “brain bleed,” that he was given “rat poison,” and that he never experienced seizures or heart problems until “they experimented on [him] like [he] was their personal experiment!” (Motion for Summary Judgment, Exh. I.) Clark also provided a “Schizophrenia Fact Sheet” defining his illness, and several other medical records, the significance of which is unclear.3
For its part, the defendant argued that Clark could not establish that the defendant had been deliberately indifferent to his serious medical needs because the record demonstrated that he received frequent and adequate medical care during the relevant period. See Estelle v. Gamble, 429 U.S. 97, 103-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The defendant further argued that, even if Clark could somehow show that the defendant had been reckless or indifferent to his serious medical needs, he would nonetheless be unable to prevail on his Eighth Amendment claim because he could not demonstrate that the defendant had a policy or custom of deliberate indifference to prisoners’ serious medical needs. See Natale v. Camden County Correctional Facility, 318 F.3d 575, 584 (3d Cir.2003). In support of its motion, the defendant submitted medical records indicating that Clark received regular psychiatric treatment from February 2006 though July 2007, as well as a substantial amount of care for his other medical conditions.
By order entered December 22, 2008, the District Court granted the defendant’s motion, denied Clark’s, and entered judgment in favor of the defendant. This appeal followed.4
Upon review, it appears that the District Court properly entered summary judgment in favor of the defendant because, even assuming that the defendant’s actions rose to the level of deliberate indifference, Clark failed to allege facts or present evidence creating a genuine issue of fact as to whether a “ ‘policy or custom’ of the [defendant] was the ‘moving force’ behind a violation of his Eighth Amendment rights.” Grayson v. Mayview State Hospital, 293 F.3d 103, 107 (3d Cir.2002) (citing Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also Natale v. *270Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir.2003)) (explaining that, in order to hold a corporation under contract with the state liable under § 1983, a prisoner “must provide evidence that there was a relevant [state] policy or custom, and that the policy caused the constitutional violation [the prisoner] allege[d]”).
Accordingly, we will summarily affirm the District Court’s order. See Third Cir. LAR 27.4 and I.O.P. 10.6. Clark’s motions for an injunction and appointment of counsel are denied.
. In January 2007, Clark was admitted to the Delaware Psychiatric Center ("DPC”). He remained there under psychiatric care for several months. In June 2007, he was returned to the DCC, where he was housed in the Security Housing Unit and monitored by medical staff. In April 2008, he was transferred back to the DPC, where he is currently housed.
. In his initial complaint, Clark named as defendants Regional Medical First Correctional, Correctional Medical Systems, Regional Manager Robert M. Hooper, and Manager Angela Wilson. By order entered December 19, 2006, the District Court dismissed the complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as to all defendants except Correctional Medical Systems. See 28 U.S.C. § 1915(e)(2)(B)(ii) (providing that the district court shall dismiss the complaint of a prisoner proceeding in forma pauperis if the court determines that the action fails to state a claim on which relief may be granted). Although Clark subsequently amended his *269complaint on more than one occasion, he did not name any other defendants. To the extent that Clark now challenges the District Court’s order dismissing the three defendants noted above from the case, we conclude that, for the reasons given by the court, such dismissal was proper.
. Clark also attached a document indicating that he filed a grievance with the Medical Grievance Committee.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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OPINION
PER CURIAM.
On January 21, 2009, Anthony Carter, Sr., filed a motion to proceed in forma pauperis and pro se complaint in the United States District Court for the District of Delaware asserting claims of employment discrimination under Title VII of the Civil Rights Act of 1964 against defendant Mar-mon Keystone. According to the complaint, the alleged discriminatory acts (harassment and discrimination based on race) took place on February 13, 2004, those acts are not continuing, and Carter received a right-to-sue letter from the Equal Employment Opportunity Commission on April 5, 2005. The District Court granted Carter leave to proceed in forma pauperis and dismissed his complaint under 28 U.S.C. § 1915(e)(2). The District Court observed that Carter had ninety days to file a complaint after receipt of the April 2005 right-to-sue letter, but he untimely filed his complaint in January 2009. Carter timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s § 1915(e)(2) dismissal is plenary. Allah v. Seiverling, 229 F.3d 220 (3d Cir.2000). After a careful review of the record, we conclude that this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, and thus we will summarily affirm the District Court’s judgment.
As the District Court explained, a claim brought under Title VII must be filed within ninety days of plaintiffs receipt of the right-to-sue letter. See 42 U.S.C. § 2000e — 5(f)(1); McGovern v. City of Phila., 554 F.3d 114, 115 n. 1 (3d Cir.2009). We regard the ninety-day filing period as a statute of limitations, making it subject to the doctrine of equitable tolling. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 470 (3d Cir.2001). Equitable tolling is generally appropriate in *273Title VII cases only when “the defendant has actively misled the plaintiff; when the plaintiff ‘in some extraordinary way’ was prevented from asserting her rights; or when the plaintiff timely asserted her rights in the wrong forum.” Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999) (citations omitted). Plaintiff bears the burden to show that equitable tolling is warranted. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir.2005).
Carter offers no viable argument at all for an equitable tolling of the limitations period, and his complaint, as plainly indicated on its face, was filed well after expiration of the ninety-day period to bring suit. While the statute of limitations ordinarily must be raised as an affirmative defense, and is subject to principles of waiver if not timely asserted, a district court has authority to dismiss an in forma pauperis complaint sua sponte under § 1915(e) if the limitations defense is obvious from the complaint, and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006). The District Court properly invoked that authority here.
We note that Carter appears to have filed his untimely complaint in an effort to obtain review on the merits after the District Court dismissed his previous Title VII suit based on the same right-to-sue letter. This Court affirmed the dismissal of that prior complaint because Carter “was given two opportunities to properly effect service of process or obtain a waiver of service from Marmon Keystone,” but he “failed to comply with the requirements of Rule 4 on either occasion.” Carter v. Mar-mon Keystone, 278 Fed.Appx. 141, 142 (3d Cir.2008) (per curiam). The District Court did not err here in refusing Carter another “bite at the apple” through the filing of this untimely Title VII complaint.
For these reasons, the District Court’s judgment will be affirmed.
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OPINION
PER CURIAM.
Petitioners Carlos Zapata-Marulanda and Gloria Galeano de Zapata (“petitioners”), husband and wife, are natives and citizens of Colombia. They seek review of a final order of removal. Because we conclude that substantial evidence supports the BIA’s determination that petitioners do not have a well-founded fear of future persecution and, as a result, that they are not entitled to asylum, we will deny their petition for review.
I.
Petitioners last entered the United States on April 26, 2003. In November 2003, they were served with a Notice to Appear, charging them as overstays in violation of 8 U.S.C. § 1227(a)(1)(B). Petitioners conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In the alternative, petitioners requested voluntary departure. In support of their requests, Zapata-Maru-landa, as lead petitioner, argued that he had been persecuted by guerrillas from the Revolutionary Armed Forces of Colombia (“FARC”)2 on account of an imputed political opinion.
According to Zapata-Marulanda, this persecution began in 1997 after he — in his position as a supervisor in a textile factory — reported a loss of inventory in the fabric used to make uniforms for the armed forces of Colombia. The army intelligence unit (rather than the police) conducted an investigation and discovered that several workers were stealing the material and selling it to the guerrillas; this allowed the guerrillas to sew and tailor authentic-looking uniforms. The workers were eventually fired and arrested. Some*275how the guerrillas discovered Zapata-Ma-rulanda’s involvement in the investigation and targeted him as a “military objective” for his actions. Zapata-Marulanda received threatening phone calls, during which the stolen fabric was referenced, and three unknown men appeared at Zapata-Marulanda’s workplace looking for him.
Because of his fear of retribution from the guerillas, Zapata-Marulanda was forced to quit his job of 26 years, and he and his wife moved from place to place (including three trips to the United States). Zapata-Marulanda alleged that despite these moves, FARC caught up with him in July of 2001 while he was in Barranquilla. At that time, three men— who were allegedly guerrillas looking for Zapata-Marulanda — were in a shootout with police across the street from where petitioner was hiding out. All three were fatally wounded. For the next year or so, petitioners moved around to ensure their own safety and eventually relocated to the United States for good in 2003.
After a hearing during which Zapata-Marulanda testified to these events, the Immigration Judge (“IJ”) denied petitioners all relief with the exception of voluntary departure. The IJ characterized petitioners’ case as one amounting to “a request for protection under or similar to our whistle blower laws.” (IJ Op. at 6.) The IJ further commented that the “main issue in these cases is whether the connection between the alleged persecutor and the [petitioners] has been established. Id. at 7. The IJ concluded that Zapata-Marulanda’s testimony was not supportive of such a “link.”3 Without discussing petitioners’ prayer for relief in the form of withholding of removal or under the CAT, the IJ denied petitioners’ requests for relief and ordered them removed after a 60-day period of voluntary departure.
The BIA dismissed petitioners’ appeal. Citing to Matter of Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988), the BIA concluded that Zapata-Marulanda did not suffer past persecution on account of a protected ground. It further concluded that, in any event, the acts described by Zapata-Maru-landa did not detail mistreatment of sufficient severity to constitute past persecution. The BIA likewise determined that Zapata-Marulanda does not have a well-founded fear of future persecution, reasoning that he has never been physically harmed in Colombia, and any alleged fear is belied by petitioners’ repeated travels back and forth between the United States and Colombia after the July 2001 shootout, before finally coming to the United States and seeking asylum in 2003. Finally, the BIA concluded that petitioners necessarily failed to satisfy the standard for withholding of removal, or to establish that it is more likely than not that Zapata-Marulan-da would be tortured by the government of Colombia upon returning to that country. Petitioners filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 *276F.3d 542, 547 (3d Cir.2001). Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We review the BIA’s factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). We will treat Zapata-Marulanda’s testimony, summarized above, as credible. See Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir.2009) (“Under the Act, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal”) (emphasis added, quotation omitted).
III.
The only issue presented is whether the BIA’s determination that petitioners are not entitled to asylum is supported by substantial evidence.4 We conclude that it is.
To obtain asylum as refugees, petitioners must show that they are unable or unwilling to return to Colombia because of past persecution or a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42). “[Pjersecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotation omitted). A demonstration of a well-founded fear of persecution, by itself, would entitle petitioners to asylum relief. See Camara, 580 F.3d at 202. A demonstration of past persecution, on the other hand, “raises a presumption of a well-founded fear of future persecution” that shifts the burden to the Government. Ab-dulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
The alleged persecution must be “on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.’ ” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (quotation omitted); see also Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir.2005) (“[A]n applicant must show that the persecution was motivated, at least in part, by one of the protected characteristics”) (emphasis in original). Race, religion and political opinion are all statutorily enumerated grounds. See 8 U.S.C. § 1101(a)(42)(A).
As already noted, the BIA relied on its decision in Matter of Fuentes to support its conclusion that petitioners had “not suffer[ed] past persecution in Colombia on account of a protected ground under the Act.” (BIA Op. at 2.) It reasoned that revolutionary struggles involving guerrillas often involve violence against “civilian institutions that support domestic stability and the strength of the existing government,” and that the dangers those institutions face “are no more related to their personal characteristics or political beliefs than are the dangers faced by military combatants.” Id. The BIA’s reliance on Matter of Fuentes is misplaced as it does not appear that Zapata-Marulanda was targeted by FARC because the textile plant where he worked made uniforms for *277the military. It does not appear, however, that Zapata-Marulanda was targeted by FARC because the textile plant where he worked made uniforms for the military. Rather, he, and he alone, was targeted because the information he provided sabotaged FARC’s illicit supply of military-issued materials that was being stolen by its operatives working within that company.
But even assuming both that Zapata-Marulanda was targeted by FARC because of an imputed political opinion, see, e.g., Delgado v. Mukasey, 508 F.3d 702, 707 (2d Cir.2007) (petitioner who would be targeted by FARC in the future for betraying them, when coupled with government’s unwillingness to control FARC, could show persecution for an imputed political opinion in the form of opposition to FARC), and that the July 2001 shootout is sufficient to constitute past persecution, see, e.g., Sanchez Jimenez v. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir.2007) (attempted murder of petitioner by FARC constitutes past persecution), the record reveals substantial evidence to rebut any presumption that petitioners’ fear of future persecution is well-founded. See Camara, 580 F.3d at 202 (“a well-founded fear of future persecution is the touchstone of asylum”). As advanced by the Government, and as specifically outlined by the BIA,
[Zapata-Marulanda]’s claim to a well-founded fear of future persecution is undercut by the fact that he traveled to the United States on three previous occasions, and returned to Colombia each time. All three trips to the United States occurred during the time frame that [Zapata-Marulanda] alleges the persecution was taking place in Colombia. Finally, [Zapata-Marulanda] remained in Colombia for nearly two years after the July 2001 shoot out [sic] between the police and FARC before finally coming to the United States and filing for asylum.
(BIA Op. at 2.) For those reasons, we agree with the BIA that petitioners do not have a well-founded fear of future persecution.5
Accordingly, we will deny the petition for review.
. Zapata-Marulanda is the lead petitioner, and Galeano de Zapata sought derivative asylum pursuant to 8 U.S.C. § 1158(b)(3)(A).
. FARC is "a leftist guerrilla revolutionary group, ... active throughout much of Colombia. The FARC was officially formed in 1966 and has continuously and often violently opposed the Colombian government since that time. The FARC is designated as a terrorist organization by the United States Government. While the FARC is active throughout Colombia, it holds particular sway in many rural areas where it effectively controls local politics and the civilian population.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 335 (3d Cir.2008).
. While the IJ noted that a newspaper article that Zapata-Marulanda submitted in support of the July 2001 shootout was never rebutted by DHS, he nonetheless stated that the article (also characterized as "the best evidence in the case”) had internal problems. Although the article reported that the shootout occurred on July 28, Zapata-Marulanda stated that it happened on July 29. Moreover, the IJ noted that the article mentioned Zapata-Marulanda by name and intimated that he had been targeted for assassination, but he nonetheless criticized the article for failing to indicate the reason for the attempted assassination and the force behind that attempt. Despite these observations, the IJ did not make an adverse credibility determination.
. By failing to challenge the BIA's determination that they are ineligible for withholding of removal and CAT relief in their opening brief, petitioners have waived those issues. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.2000) (“Rule 28(a) of the Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require appellants to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief'); see also Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. Moreover, petitioners' children have resided in Colombia since the time of the alleged persecution without any harm. See Abdulrah-man, 330 F.3d at 592 n. 3 (presumption of well-founded fear of persecution can be rebutted with evidence that petitioner can reasonably avoid persecution by relocating to another part of his or her country); cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) ("[Wjhen family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner's well-founded fear of future persecution is diminished”).
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OPINION
PER CURIAM.
Petitioners, Naseem and Twinkle Vithla-ni, seek review of two orders of the Board of Immigration Appeals (“BIA”), one denying their motion to reopen and the other denying their motion for reconsideration. For the reasons that follow, we will deny their petition for review.
Naseem Vithlani, a native and citizen of India, entered the United States in November 1998 on an Hl-B visa. Her husband Anant and daughter Twinkle followed on H4 visas in February 1999. In 1999, Naseem filed an affirmative application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), listing her husband and daughter as derivative beneficiaries. (A.R.603.) In it, she alleged that she and her husband had been persecuted by members of her husband’s family based on their interfaith marriage. (A.R.606.) On September 4, 2001, they were served with Notices to Appear, alleging that they had remained in the United States without authorization *279beyond the time period permitted by their visas, which charges they conceded. (A.R. 624.)
On August 8, 2002, the IJ denied their requests for relief, concluding that they had failed to establish that they suffered past persecution or had a well-founded fear of future persecution. (A.R.398-404.) On January 16, 2004, the BIA issued an opinion agreeing with the IJ and dismissing their appeal. (A.R.156-57.) Petitioners did not file a petition for review in this Court at that time. They allege that, following the issuance of the BIA’s decision, their attorney, Ana Juneau, told them that there was nothing else they could do with respect to their case and that their options were either to go back to India or to remain in the United States illegally. They claim that they first learned that they could have filed a petition for review in this Court on December 30, 2006, after Anant was taken into custody by Immigration and Customs Enforcement agents based on a warrant for his deportation stemming from the BIA’s final order of removal.
Naseem then retained the services of a second attorney, Rahul Manchanda, who assigned an associate at his firm, Shahla Khan, to represent the Vithlanis. On January 22, 2007, they filed a motion to reopen with the BIA, alleging that prior counsel, Ms. Juneau, had been ineffective in her representation of them throughout the removal proceedings and in failing to inform them of their right to appeal. (A.R.287-307.) They claimed that they first learned of their counsel’s ineffectiveness on or about December 30, 2006, and that their motion to reopen was filed within 90 days of that discovery. On March 26,’ 2007, the BIA denied the motion based on petitioners’ failure to comply with the requirements for alleging ineffective assistance of counsel as set out in Matter of Assaad, 23 I. & N. Dec. 553 (BIA 2003), and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). (A.R.175-76.) The BIA further concluded that petitioners had not exercised due diligence in pursing their claims, as they failed to explain the delay between the alleged ineffective assistance of counsel from 2002 to 2004 and the filing of their motion in 2007. (Id.) Petitioners did not seek review of that decision.
Through present counsel, petitioners filed a second motion to reopen on September 10, 2007, alleging that attorneys Manchanda and Khan provided ineffective assistance in filing their first motion to reopen. (A.R.93-145.) They claimed that they first learned of this ineffectiveness on or about August 1, 2007, more than four months after the BIA denied their first motion to reopen. The BIA denied the second motion on November 13, 2007 as time — and number-barred and concluded that petitioners were not entitled to equitable tolling. (A.R.54-55.) The BIA held that petitioners had failed to explain the steps, if any, that they took to investigate and assert their claims during that time and, additionally, that they had failed to show how the conduct of the attorneys who represented them in connection with their first motion to reopen prejudiced their case, as there was nothing those attorneys could have done to alter the fact that petitioners failed to exercise due diligence in pursuing their claims for relief and investigating any potential recourse against their first attorney. (A.R.55.) As the BIA noted, petitioners were present at the 2002 hearing when the IJ rendered his decision, noting all of the inadequacies in their case. In them 2007 letter to Attorney Juneau,1 petitioners detailed six alle*280gations of misconduct which occurred during the removal proceedings. (A.R.249-250.) Based on this sequence of events, the BIA concluded: “The respondents have simply failed to explain why they were completely unaware of any problems with their 2002 removal proceedings until December 30, 2006, more than four years after their removal hearing and nearly three years after their appeal was dismissed. They have failed to show that they took any steps to address these issues or otherwise investigate and assert their claims.” (A.R.55.)
Petitioners then filed their first petition for review on December 10, 2007, which was docketed at C.A. No. 07-4623. Petitioners concurrently filed a motion for reconsideration pursuant to 8 C.F.R. § 1003.2(b), which the BIA denied on June 13, 2008. (A.R.7.) On June 27, 2008, petitioners filed the petition for review docketed at C.A. No. 08-2990. These petitions for review were consolidated and we have jurisdiction over both of them pursuant to 8 U.S.C. § 1252.
Petitioners challenge the BIA’s denial of their second motion to reopen and the denial of their motion for reconsideration of the denial of their second motion to reopen. The second motion to reopen was premised on the ineffectiveness of the attorneys who perfected the first motion to reopen. We review the BIA’s denial of a motion to reopen or for reconsideration for an abuse of discretion, under which standard we will uphold the Board’s decision unless it was arbitrary, irrational or contrary to law. See Sevoian v. Ashcroft, 290 F.3d 166, 170, 174 (3d Cir.2002).
The BIA concluded that petitioners were not entitled to equitable tolling under Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). In Mahmood, this Court confirmed that the time for filing a motion to reopen is subject to equitable tolling and that ineffective assistance of counsel can provide the basis for such tolling. See id. at 251. However, this Court further held that Mahmood was not entitled to equitable tolling as he had not exercised the requisite diligence in pursuing his claims. See id. at 252. The BIA here reached a similar conclusion. Assuming Attorney Juneau did provide ineffective assistance, the BIA concluded that petitioners failed to diligently pursue any relief in the period between the BIA’s entry of a final order of removal and Anant’s deportation. Having reached this determination, the BIA concluded that even if their first motion to reopen had been properly prepared by Attorneys Manchanda and Khan, they could not have taken advantage of equitable tolling due to this lack of diligence and therefore, they had not established prejudice attributable to the deficient preparation of the second motion to reopen. See Fadiga v. Attorney General, 488 F.3d 142, 157 (3d Cir.2007) (explaining that once the BIA determines that the Lozada requirements are met, it proceeds to assess whether competent counsel would have acted differently and whether the petitioner was prejudiced by counsel’s actions).
Petitioners contest the BIA’s diligence determination, arguing that it is the date of discovery of the ineffective assistance, not the date of the ineffective assistance itself, that “marks the beginning of the timeline for a finding that the alien has exercised due diligence in pursuing her claim.” (Pet’r Reply Br., 3.) “[I]n order to equitably toll the filing deadline for a motion to reopen based on ineffective assistance of counsel, an alien must demonstrate that he or she has exercised due diligence during the entire period he or she seeks to toll. This includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point *281until the motion to reopen was filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008). As the BIA made clear, petitioners set forth six grounds on which they claimed Attorney Juneau’s representation during the initial removal proceedings was deficient. While they may not have been aware of the legal concept of “ineffective assistance of counsel” until meeting with Attorneys Manehanda and Khan at the end of 2006, they were aware of all of the facts underlying their claim for the preceding four years. The fact that they waited until Anant was taken into custody in 2006 to seek a second opinion does not render them unaware of the basis for their claim until that time. As the BIA’s decision was not arbitrary, irrational or contrary to law, we conclude that it acted within its discretion in denying petitioners’ second motion to reopen.
With respect to their motion for reconsideration, the BIA held that rather than specifying any errors of fact or law in its previous decision as required by 8 C.F.R. § 1003.2(b), the motion essentially restated all of the arguments previously made. (A.R.7.) We agree that, under these circumstances, the BIA properly denied the motion for reconsideration. See Nocon v. I.N.S., 789 F.2d 1028, 1033 (3d Cir.1986) (upholding denial of motion for reconsideration as proper exercise of the BIA’s discretion where petitioner failed to meet regulatory requirements).
Finally, for the first time in their opening brief, petitioners raise a claim alleging that they should not have been placed into removal proceedings in 2001 while they were still residing legally in the United States. As the Government argues, this issue is both waived and unexhausted. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). Accordingly, we will not address it any further.
Based on the foregoing, we will deny the consolidated petitions for review.
. While the letter was dated February 25, 2005, all parties agree that it was written in 2007. (A.R.55, n. 2.)
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OPINION
PER CURIAM.
Jing Wang Jiang petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Jiang, a native of China, entered the United States in June 2006. He was charged as removable as an alien who entered without inspection. He conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He argued that his wife had been forced to undergo an abortion and had been forcibly sterilized pursuant to China’s family planning policies.
The IJ noted that Jiang was not automatically eligible for relief as the husband of a woman who had undergone a forcible abortion and sterilization. The IJ concluded that Jiang had not shown past persecution or a well-founded fear of future persecution. He observed that Jiang was afraid to return to China because he could not pay off those who smuggled him into the United States. As for Jiang’s CAT claim, the IJ determined that Jiang had not shown that he would be tortured if returned to China.
On appeal, the BIA agreed that Jiang could not base his own asylum claim on the forced abortion and sterilization of his wife. The BIA determined that the record contained no evidence of Jiang’s other resistance to China’s family planning policies and that Jiang had not alleged that he had been detained, arrested, or otherwise harmed on account of any resistance. The BIA also rejected Jiang’s claim for withholding and relief under the CAT. Jiang filed a timely petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. To establish eligibility for asylum, Jiang needed to demonstrate either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Vente v. Gonzales, 415 F.3d 296, 300 (3d Cir.2005). For withholding of removal, he needed to demonstrate that it was more likely than not that his life would be threatened in China on account of these protected grounds. Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); 8 U.S.C. § 1231(b)(3)(A).1 We review the BIA’s factual determinations under the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003)(en banc). The BIA’s findings are considered conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We exercise de novo review over the BIA’s legal decisions. Toussaint v. Attorney General, 455 F.3d 409, 413 (3d Cir.2006).
*283The spouses of those who have been persecuted by coercive population control policies are not automatically eligible for asylum. Lin-Zheng v. Attorney General, 557 F.3d 147 (3d Cir.2009) (en banc). Jiang recognizes this but still argues that his wife’s forced abortion, IUD insertion, and sterilization constitute past persecution for his asylum claim. These arguments, however, are foreclosed by our opinion in Lin-Zheng. A spouse is simply not entitled to asylum based on the separate persecution of his spouse.
Although spouses remain eligible for relief pursuant to 8 U.S.C. § 1101(a)(42) if they can establish their own persecution for resisting China’s coercive reproductive policy or a well-founded fear of future persecution for that resistance, Lin-Zheng, 557 F.3d at 157, the record does not compel such a finding in this case. Jiang argues that his attempts to father a second child, his wife’s removal of her IUD, and his wife’s evasion of family planning authorities constitute resistance to China’s family planning policy. However, even if these actions could constitute resistance, the only persecution Jiang contends he has suffered is the inability to have a son with his wife. However, that argument is based on his wife’s sterilization, which, as noted above, is not sufficient to establish Jiang’s eligibility for asylum. Jiang has not shown that the record compels a finding of past persecution or a well-founded fear of persecution based on his resistance to China’s family planning policy. Nor has he shown that his life would likely be threatened on that ground.
For the above reasons, we will deny the petition for review.
. Jiang does not challenge the denial of his CAT claim.
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OPINION
BARRY, Circuit Judge.
Benjamin Arzola, Ruben Soto, Domingo Hernandez, and Maximino Nieves raise numerous challenges to their convictions, sentences, and orders of forfeiture following a lengthy drug trafficking trial.1
At trial, the prosecution presented powerful evidence of a vast drug trafficking conspiracy beginning in 1999 and ending in June 2005. Among other evidence, the prosecution presented the testimony of numerous cooperating witnesses, substantial police surveillance of drug transactions, testimony regarding controlled purchases, hundreds of recorded phone conversations by and among the defendants, and physical evidence seized during an early morning raid of the conspiracy’s stash houses and the defendants’ residences, including substantial quantities of cocaine; drug paraphernalia such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in cash.
The jury convicted the defendants of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846. Hernandez was also convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
On appeal, Arzola argues that:
(1) he was denied a fair trial by:
(a) the prosecution’s violation of the Jencks Act, 18 U.S.C. § 3500;
(b) the District Court’s failure to grant a mistrial following purported juror misconduct;
(c) the District Court’s failure to dismiss the indictment due to an attorney’s conflict of interest;
(d) prosecutorial misconduct during the prosecutor’s rebuttal argument, including mischaracterization of facts, impugning defense counsel’s integrity, and improper vouching; and
(e) the District Court’s denial of counsel’s attempt to use an easel during the presentation of evidence;
(2) the District Court improperly denied his request for a hearing on the calculation of the drug quantity;
(3) the District Court misunderstood the nature of its discretion at sentencing;
(4) the District Court improperly imposed a two-level enhancement for possession of a firearm;
(5) the prosecution failed to establish by sufficient evidence both the drug quantity and his aggravating role in the conspiracy; and
(6) his residence should not have been forfeited.
Soto argues that:
*289(1) there was insufficient evidence supporting his conviction and the weight of drugs attributed to him;
(2) the prosecution improperly impugned defense counsel’s ethics and integrity;
(3) the prosecution improperly vouched for a government witness;
(4) his right to remain silent was violated;
(5) the cumulative effect of the trial errors denied him a fair trial;
(6) the District Court abused its discretion in denying him a hearing to challenge the weight of drugs attributed to him; and
(7) the District Court misconstrued its discretion to sentence him.
Hernandez argues that:
(1) there was insufficient evidence supporting his convictions;
(2) the prosecutor made improper comments during summation;
(3) the District Court erred in concluding that he was responsible for fifty kilograms of drugs;
(4) for purposes of sentencing, he should only be held accountable for his relevant conduct, not that of his co-conspirators;
(5) the District Court should have granted a mistrial based on a government witness’s reference to money laundering;
(6) the District Court erred by applying the enhanced penalty of 21 U.S.C. § 851 to him;
(7) the prosecution selectively and vindictively prosecuted him for not accepting a plea agreement;
(8) his Fifth Amendment right to silence was violated;
(9) a mistrial should have been declared based on juror misconduct; and
(10) his prior counsel’s conflict of interest required dismissal of the case.
Finally, Nieves contends that:
(1) there was insufficient evidence underlying his conviction;
(2) his Fifth Amendment rights were violated;
(3) the prosecution improperly solicited evidence of money laundering;
(4) juror misconduct occurred during trial;
(5) the imposition of a gun enhancement was improper;
(6) the calculation of the drug quantity applicable to him for sentencing was improper;
(7) the District Court erred in failing to grant him a minor role reduction; and
(8) his sentence was both procedurally and substantively unreasonable.
Each defendant has joined all other arguments raised by his co-defendants to the extent applicable to him.
We have carefully reviewed the record, which contained overwhelming evidence of guilt, and we have considered all of the issues raised by all of the defendants. We find those issues to be without merit, and reject them without further discussion. See United States v. Salemo, 61 F.3d 214, 216 n. 1 (3d Cir.1995).
We will affirm the judgments of sentence.
. In a separate opinion, we address and reject the challenges of two of their co-defendants, Arsenio and Misael Arzola.
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OPINION
PER CURIAM.
Petitioner Qin Chen is a citizen of China. He entered the United States in 2006 without inspection and was charged as removable. Before the Immigration Judge (“IJ”), Chen conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The IJ denied all relief and the Board of Immigration Appeals (“BIA”) dismissed his subsequent appeal. Chen then filed a petition for review.
I
Chen based his requests for relief on his practice of Falun Gong, which is outlawed in China. Chen testified that, as a teenager, he suffered from poor health. In 2003, a friend invited him to practice Falun Gong, suggesting that it might improve Chen’s health. Chen stated that he began practicing at the home of his friend’s uncle and continued to do so once a week from early 2003 until December 2005.
In December 2005, police raided the uncle’s house during a meeting of Falun Gong practitioners, including Chen. Chen was arrested; he testified that he was beaten, hanged upside down, and interrogated. He was held for about a month and released when his mother paid a substantial fee. Although his mother paid for Chen’s release, she received no receipt. Chen explained that the police would not give out a receipt because the fee his *291mother paid was a bribe, not official bail. Chen was also required to sign a document stating that he renounced Falun Gong, although he produced no copy of the document at his removal hearing, and the police instructed him to report once per week.
After his release, Chen was assaulted on the street by police when he was seen associating with a group of friends, presumably because the police believed he was engaging in activities related to Falun Gong. Because he felt intense pressure and fear from having to report to police and not associate with his friends, Chen left China for the United States in 2006. Chen now lives in a residence owned by his boss, not far from his father’s home in New Jersey.
In addition to his own testimony before the IJ, Chen presented unsworn letters from his mother and the friend who introduced him to Falun Gong. Chen also submitted some pictures of himself posing with unknown practitioners at a pro-Falun Gong demonstration in Washington, D.C.
The IJ denied all relief, reasoning that Chen failed to sufficiently corroborate his claim that he experienced or faced persecution for practicing Falun Gong. Specifically, the IJ noted that Chen failed to produce any evidence that he was in poor health before starting Falun Gong, so as to establish that he ever began to practice it, or that he was ever arrested, bailed out, or forced to renounce Falun Gong. The IJ further noted that although he went to the trouble of obtaining unsworn letters from individuals in China — including his mother, who had an interest in the outcome of the case — Chen did not produce affidavits from his father or boss, who both live near him in the United States, or local Falun Gong practitioners, who could attest to his continued practice of Falun Gong. The IJ also questioned the veracity of Chen’s claim, citing inconsistencies and weaknesses in his testimony and other evidence. The IJ however, did not make an express adverse credibility determination.
The BIA dismissed Chen’s appeal, reasoning that the IJ properly determined that Chen failed to offer sufficient corroborating evidence or adequate explanations for his failure to produce such evidence.
II
We have jurisdiction over Chen’s petition under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal quotation marks and citations omitted).
As an initial matter, we reiterate that the IJ did not make an explicit adverse credibility finding, contrary to Chen’s assertion. He merely noted inconsistencies in Chen’s testimony and expressed some doubts about his story as a result. We have several times affirmed the rule that in the absence of an explicit adverse credibility finding, we must proceed as if the applicant’s testimony were credible and determine whether the IJ’s decision is supported by substantial evidence. See Toure v. Att’y Gen., 443 F.3d 310, 325-26 (3d Cir.2006); Lusingo v. Gonzales, 420 F.3d 193, 197 n. 5 (3d Cir.2005); Li, 400 F.3d at 163-164; Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003). Accordingly, we will presume the credibility of Chen’s testimony and proceed to evaluate the Agen-*292c/s conclusion that Chen failed to meet his burden of establishing eligibility because he failed to provide reasonable corroboration.
A failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (8) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Toure, 443 F.3d at 323; Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)).1 Here, the BIA affirmed the IJ’s decision on the ground that Chen should have provided evidence from his father or boss that would help demonstrate his adherence to Falun Gong. Chen merely produced un-sworn statements from his mother and friend, as well as a photograph of himself with Falun Gong practitioners at a rally. However, despite his testimony that his father knew of his Falun Gong practice and that he lived with — or at least near— his boss, Chen failed to obtain any statements from them about whether he actually adheres to the practice.2 We agree that Chen could have easily obtained such evidence and that he unreasonably provided no explanation for his failure to corroborate his claim in that regard.
Because the IJ conducted the required inquiry and reasonably concluded that Chen failed to offer adequate reasons for his failure to corroborate his claims for relief, we will uphold the BIA decision affirming the denial of relief. We have considered Chen’s other arguments on appeal and conclude that they lack merit. Accordingly, we will deny the petition for review.
. This standard applies to claims for relief, such as Chen's, that were filed after the enactment of the REAL ID Act of 2005. See Chuk-wu, 484 F.3d at 192 & n. 2.
. The IJ noted that he understood why Chen's father, who apparently remains in the country despite an order of deportation, would not come to the removal hearing, but expressed doubts about Chen's claim because he could have easily obtained a sworn statement from his father, who would not have been required to appear at the hearing.
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OPINION
PER CURIAM.
Kokou Amevava Awlime petitions for review of an order of the Board of Immigration Appeals (“BIA”), which dismissed his appeal from the removal order of an Immigration Judge (“IJ”). We will deny the petition for review.
Awlime is a native and citizen of Togo. He entered the United States in 2003 as a visitor for pleasure and remained longer than permitted. He was placed in removal proceedings and he applied for asylum and related relief. Awlime’s application was based on incidents in Togo related to his activities as a taxi driver (the transcripts sometimes say “chauffeur”) and union leader for fellow taxi drivers in Togo.
According to Awlime, the police in Togo would set up barricades, stop taxi drivers, and ask for the money that the drivers had made. Awlime wanted to stop this, so he organized the drivers in a demonstration. He did not recall the date of the demonstration. Sixty or seventy drivers took their cars to the barricades and began singing protest songs. The police asked who organized the demonstration. Awlime admitted that he had, and the police took him and two others to the police administration building. Awlime was the only one arrested and kept for three days. He was told that if he continued to protest, the police would “finish with my life.” He was not given food or water during the three days, and had to relieve himself in a pot and had to sleep on the ground. He was questioned on the first day, and on the third day, he was released. Police also impounded his car and made him pay to get it back.
In a second incident, on September 1, 2001, Awlime was driving his taxi near the border between Togo and Ghana. Two men stopped him and said they would like to rent his taxi. They pulled out pistols and told him to continue to drive to where the former president lived. They told him to turn around to the bush and they entered a yard with a small house. Gendarmes in civilian clothes made him get out and started kicking him and beating him with batons. He lost a tooth from the beating. They kept his car and never gave it back. The assailants put him in a jail for about a month. Blood was leaking from his mouth and his face was swollen. He could not eat for three days. They questioned him, but he could not say anything. He had to sleep on a wet floor. On one day, two men came and said they were going to give Awlime “morning coffee.” *294They took him to a palm tree, gave him soap and water, and made him wash the tree until his hands were bleeding. They came again and told him they would give him “coffee.” This time, he had to get on his knees and walk back and forth on rocks on the ground for hours. A third time, they told him it was time for “coffee,” and they made him undress and kneel in a place where there were many mosquitos. He had to cross his arms and was not allowed to swat at the mosquitos. They then told him if he wanted to be released, he would have to spy for them. He agreed, and he was released about September 27, 2001.
Awlime stayed at home and did nothing after being released, and finally took his family to Benin. Awlime left for the United States about 19 months later. He did not want to leave for the United States sooner, because he did not want to leave his children, and he did not have enough money for the trip. He believed Benin was not safe for him, because the police from Togo can cross into Benin. Gnas-singbe Eyadema was the president in Togo when Awlime left; now his son is president. Awlime has been told that nothing has really changed.
On cross-examination, Awlime was asked whether the three “coffees” occurred on three different days, as he testified on direct, or on one day, as stated in his application. He first confirmed that it happened during three days, but when confronted with the application, replied that it was all in one day, and that any differences between his application and his testimony were due to his memory problems. Awlime also testified that he had been in counseling in the U.S. for the past eight months.
Awlime was then asked about pictures that he said were taken by a nurse friend after he was released from prison. (The pictures are at A.R. 387-88). His written statement said that the pictures were taken to document his condition and were taken the day that he was released in 2001. During cross examination Awlime affirmed the truth of that statement. He was then asked why the pictures showed a calendar with a 2003 date. After some non-responsive answers, he explained that the picture was not taken in 2001, but “was taken to be kept as a souvenir in 2003,” so that his kids could see some day what was done to him. He affirmed that he put on bandages and got something to look like blood so that his kids could see what had happened to him in 2001.
The IJ denied relief, primarily because of the problem with the photograph. The IJ noted the abysmal conditions in Togo, but found that the staged photograph undermined the entire credibility of Awlime’s testimony. The IJ also found that there was no reason to think that Awlime would be tortured in Togo, although the country report indicated, in the IJ’s words, that “the authorities in [Togo] tend to use some degree of severe mistreatment with many members of the country or citizens of that country for apparently a variety of reasons.”
The BIA affirmed, finding that the IJ’s adverse credibility finding was not clearly erroneous. The BIA noted Awlime’s contradictory testimony regarding the date of his second arrest, the length of detention, and the date of release. The BIA also noted the confusion about whether the three “coffees” occurred on one day or three different days, and finally noted the discrepancy caused by the appearance of a 2003 calendar in the photographs that Awl-ime originally said had been taken in 2001. The BIA also found nothing in the record to support a finding that Awlime faced a probability of torture in Togo. Awlime filed a timely, counseled petition for review.
An adverse credibility finding is reviewed under the substantial evidence test, *295and must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (quoting 8 U.S.C. § 1252(b)(4)(B)). Under the applicable law,1 an adverse credibility finding cannot be supported by speculation, conjecture or minor inconsistencies, but must involve discrepancies that go to the “heart of the asylum claim.” Kaita, 522 F.3d at 296.
The record does not compel us to conclude that Awlime was credible. Some of the discrepancies noted by the BIA could be characterized as minor. The IJ did not seem to be troubled by Awlime’s testimony that he was arrested September 1, 2001 and released September 27, 2001, which differs by a few days from his asylum application, which gives the dates as September 3, 2001 and October 3, 2001. And as Awlime argued in his brief to the BIA, the confusion about whether the “coffees” occurred on one day or over three days is also perhaps explainable “as a consequence of the trauma the Respondent suffered.” Awlime argued that victims of persecution often have difficulties remembering dates.
Nonetheless, we find that the foregoing inconsistencies, considered in conjunction with Awlime’s changing story about the photographs, support the IJ’s adverse credibility finding. Awlime was specifically asked to confirm that the photos were taken the day after he was released from prison, and he agreed. It is only when he was confronted with the fact that the calendar in the pictures was a 2003 calendar that he changed his story. The IJ was rightly disturbed by this staged photograph, and it properly formed the basis of an adverse credibility finding, as it went to the heart of Awlime’s claim. As the adverse credibility finding is supported by substantial evidence, the BIA properly dismissed Awlime’s appeal from the IJ’s denial of asylum and withholding of removal.2 We will thus deny the petition for review.
. Because Awlime’s petition was filed before May 11, 2005, the REAL ID Act provisions regarding credibility do not apply. Kaita v. Attorney General, 522 F.3d 288, 296 (3d Cir.2008).
. Further, because Awlime's claim for relief under the CAT was based on the same testimony that was found to be incredible, the BIA properly found that nothing in the record reflected that Awlime would be tortured if returned to Togo.
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McKEE, Circuit Judge.
Sidnei De Miranda appeals the district court’s denial of his motion for a judgment of acquittal. The sole issue on appeal is whether the government presented sufficient evidence of alienage to support De Miranda’s conviction for unlawful reentry following his deportation from the United States in violation of 8 U.S.C. § 1326. For the reasons that follow, we will affirm the judgment of conviction.1
I.
In deciding if a verdict is supported by sufficient evidence to establish guilt beyond a reasonable doubt, we must view the evidence in the light most favorable to the government and draw all reasonable inferences in the government’s favor. United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996).
Viewed in that light, the evidence established that Sidnei De Miranda arrived at the airport in St. Thomas to board an airplane bound for Fort Lauderdale, Florida in March of 2008. However, he was taken to secondary inspection because he could not produce evidence of citizenship, and because he seemed suspiciously nervous. When officials asked him about his nationality, De Miranda stated that he was a Brazilian-born Brazilian citizen. Upon reviewing De Miranda’s Alien File, officials found a fully executed Warrant of Deportation which included his photograph and a fingerprint from his right index finger. Thereafter, they arrested De Miranda and sent his fingerprints and the warrant for forensic analysis. That examination and subsequent investigation disclosed that De Miranda had previously been deported. Accordingly, he was subsequently he was charged with illegally attempting to enter the United States following deportation in violation of 8 U.S.C. § 1326. He proceeded to trial before a jury, and was convicted of that charge. This appeal followed.
II.
8 U.S.C. § 1326, makes it illegal for an alien who has previously been deported or removed from the United States to reenter without the Attorney General’s permission. The government therefore had to prove beyond a reasonable doubt that De Miranda was an alien who attempted to reenter the United States after being deported or removed, and that he did so without having permission to reenter. Id; see also United States v. Dixon, 327 F.3d 257, 259 (3d Cir.2003). The evidence here clearly *297was clearly sufficient to prove each of those elements.
The jury heard evidence that when he was questioned at the St. Thomas airport, De Miranda admitted that he had been born in Brazil, and that he had neither a U.S. passport nor “green card.” The government introduced the executed warrant of deportation containing a photograph and fingerprint taken when he was previously removed, as well as the testimony of a fingerprint expert tying the fingerprint to De Miranda and there was testimony that he was trying to board a plane in St. Thomas that was bound for Fort Lauder-dale Florida when he was arrested. De Miranda’s claim that this was not sufficient to support his conviction is therefore as woeful as it is frivolous.
III.
For the reasons set forth above, the judgment of the district court will be affirmed.
. We have appellate jurisdiction to review the District Court’s final judgment under 28 U.S.C. § 1291.
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OPINION
McKEE, Circuit Judge.
Wilbert Williams appeals the district court’s dismissal of his complaint pursuant to the abstention principles articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. Williams filed the complaint against the Virgin Islands Board of Medical Examiners and three of its members (hereinafter the “Board”), after the Board suspended his license to practice medicine. For the reasons that follow, we will affirm the district court’s decision to abstain pursuant to Younger.1
I.
Because we write primarily for the parties who are familiar with the underlying facts and procedural history, we need not recite either here.
“Abstention is a judicially created doctrine under which a federal court will decline to exercise its jurisdiction so that a state court or agency will have the opportunity to decide the matters at issue.” Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Commission, 791 F.2d 1111, 1114 (3d Cir.1986) (citation omitted). The doctrine is rooted in concerns for the maintenance of the federal system and “represents an extraordinary and narrow exception to the ‘virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.’ ” Id. (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Consequently, abstention is justified “only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.” Id. (citation omitted). In other words, “[ajbstention from the exercise of federal jurisdiction is appropriate only under certain limited circumstances.” Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 630 (3d Cir.1991) (citation omitted). Those circumstances “are loosely gathered under discrete concepts of abstention named after leading Supreme Court cases,” Chiropractic America v. Lavecchia, 180 F.3d 99, 103 *299(3d Cir.1999), viz., “Pullman” (Railroad Comm’n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)), “Burford” (Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)), “Younger” (Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)), and “Colorado River” (Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). As we have noted, this appeal involves Younger abstention.
In Younger, the district court enjoined the Los Angeles County District Attorney from prosecuting the defendant under a eonstitutionally-suspect state statute. The Supreme Court reversed, finding the injunction “a violation of the national policy forbidding federal courts [from] staying] or enjoin[ing] pending state court proceedings except under special circumstances.” Younger, 401 U.S. at 41, 91 S.Ct. 746. “Although Younger involved a state court criminal proceeding, the national policy against enjoining pending state court proceedings has since been extended to noncriminal proceedings,” including administrative proceedings. Zahl v. Harper, 282 F.3d 204, 208 (3d Cir.2002) (citations omitted). The Supreme Court has set out a three-part test for determining whether Younger abstention is appropriate. “Abstention is appropriate when: (1) there is a pending state judicial proceeding; (2) the proceeding implicates important state interests; and (3) the state proceeding affords an adequate opportunity to raise constitutional challenges.” Id. at 209 (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). However, even if the Younger test is met, abstention is not appropriate in all circumstances. A federal court may interfere with a state proceeding “in certain exceptional circumstances — where irreparable injury is ‘both great and immediate,’ where the state law is ‘flagrantly and patently violative of express constitutional prohibitions,’ or where there is a showing of ‘bad faith, harassment, or ... other unusual circumstances that would call for equitable relief.’ ” Mitchum v. Foster, 407 U.S. 225, 230, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) (quoting Younger, 401 U.S. at 46-54, 91 S.Ct. 746).
II.
In holding that the Younger test was met, the district court found: (1) that the Board’s proceedings are ongoing and judicial in nature; (2) that the Board has a “significant interest ... in regulating the practice of medicine with an eye toward improving the public health;” and (3) that Williams has an adequate opportunity to raise his constitutional claims because he can assert his due process claims during the territorial forum’s review of the Board’s decision. 2008 WL 5142181 at *3-5. The district court also rejected William’s contention that abstention is not appropriate under the Younger bad faith and extraordinary circumstances exceptions. Id. at *5-10.
In his appeal, Williams does not challenge the district court’s holding that the Younger test was met. Instead, he contends that there are extraordinary circumstances present in his case that make abstention inappropriate. The extraordinary circumstances exception is part of the Younger “bad faith, harassment or any other unusual circumstance that would call for equitable relief’ exception. Diamond “D” Construction Corp. v. McGowan, 282 F.3d 191, 201 (2nd Cir.2002). In Kugler v. Helfant, 421 U.S. 117, 95 S.Ct. 1524, 44 L.Ed.2d 15 (1975), the Supreme Court explained the extraordinary circumstances exception:
Only if “extraordinary circumstances” render the state court incapable of fairly and fully adjudicating the federal issues *300before it, can there be any relaxation of the deference to be afforded to the state criminal process. The very nature of “extraordinary circumstances,” of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be “extraordinary” in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.
Id. at 124-25, 95 S.Ct. 1524 (footnote omitted). Although Kugler spoke in the context of criminal prosecutions, the same standard applies in the civil context. Moore v. Sims, 442 U.S. 415, 433, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979).
As the Second Circuit noted in Diamond “D”, the Supreme Court has found extraordinary circumstances present on only two occasions: (1) “when a state statute is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it”; and (2) “when the state administrative agency was incompetent by reason of bias to adjudicate the issues pending before it.” 282 F.3d at 201 (citations and internal quotations omitted).
Williams contends that abstention is inappropriate because of the Board’s bias against him. “Bias exists where a court has prejudged, or reasonably appears to have prejudged, an issue.” Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.1992) (citation omitted). “[T]he baseline showing of bias necessary to trigger Younger’s escape mechanism requires the plaintiff to offer some evidence that abstention will jeopardize his due process right to an impartial adjudication.” Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 640 (1st Cir.1996) (citations omitted). “To implicate due process, claims of general institutional bias must be harnessed to a further showing, such as a potential conflict of interest, or a pecuniary stake in the outcome of the litigation.” Id.
To support his claim of bias, Williams contended in the district court that he was in direct competition with Michelle Dizon, a medical doctor and a member of the Board during the disciplinary proceedings against him. He further contended that the Board overlooked or ignored that conflict and permitted Dizon to participate in those proceedings. However, the district court rejected Williams’ contentions. It found that “Williams has presented little, if any, persuasive evidence that Dizon and he are in competition with each other or that Dizon has even a slight pecuniary interest in the outcome of the Board’s proceedings against Williams.” 2008 WL 5142181 at *9. Upon our review of the record, we agree with the district court that Williams did not present any persuasive evidence of bias on the part of the Board. Accordingly, his bias claim is without merit.2
Williams also argues that the Board waived its right to assert any Younger abstention because the Board stipulated to a permanent injunction on July 22, 2005, enjoining the Board from enforcing *301its June 17, 2005, suspension of Williams’ license. However, Williams offers absolutely no authority for this waiver argument. He does cite to Herz v. Degnan, 648 F.2d 201, 209-210 (3d Cir.1981), which he claims stands for the proposition that “Younger issues raised after substantial litigation had taken place in the district court should not deprive a plaintiff of his or her chosen forum.” Williams’ Br. at 24. While we do not agree with Williams’ characterization of our holding in Herz, we note that Herz has nothing to do with the waiver of a party’s ability to raise a Younger abstention issue. Rather, in Herz, we simply affirmed the district court’s decision to not abstain under Younger under the facts of that case.
III.
For all of the above reasons, we will affirm the district court.
. "In reviewing the district court’s abstention, the underlying legal questions are subject to plenary review, but the decision to abstain is reviewed for an abuse of discretion.” Grode v. Mutual Fire, Marine and Inland Ins. Co., 8 F.3d 953, 957 (3d Cir.1993) (citation omitted).
. In his brief, Williams argues that the district abused its discretion by not making any findings regarding all of his other claims of the Board’s bias. William’s Br. at 38-43. However, those issues were raised by Williams in his claim in the district court that the Board acted in bad faith and, therefore, abstention was not appropriate tinder the bad faith exception to Younger. As noted, the district court rejected Williams’ contention that it should not abstain under the bad faith exception to Younger. Williams does not challenge the district court's holding on the bad faith exception in his appeal.
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OPINION
PER CURIAM.
Thomas Twillie, a Pennsylvania state prisoner proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania granting summary judgment in favor of the defendants in his civil rights action, and an order denying his motion for reconsideration. We will affirm.
Twillie filed a complaint against Bradley Foulk, the District Attorney of Erie County, Pennsylvania, Detective Thomas Nelson of the Erie Police Department, and Steve Franklin, Chief of the Erie Police Department.1 Twillie alleged that he mailed an informal letter to District Attorney Foulk seeking access to evidence used seventeen years earlier in his felony rape trial for purposes of DNA testing. Twillie was convicted of rape in 1987. Twillie alleged that Foulk replied that he had no right to the DNA evidence. As a result, Twillie filed a motion in state court seeking access to the evidence, but he was unsuccessful at the trial court level and on appeal.
Twillie further alleged that he filed his present complaint in order to gain access to the evidence and that it was only in these proceedings that Foulk revealed that the rape kit had been destroyed. Twillie asserted that, by denying him access to the DNA evidence, Foulk forced him to file costly and time-consuming motions in state and federal court and made it impossible for him to challenge the legality of his confinement. Twillie claimed that Foulk acted in bad faith and denied him his due process rights. Twillie further claimed that Detective Nelson, acting under Chief Franklin’s supervision, violated his due *303process rights by destroying the evidence, which they knew was potentially exculpatory. Twillie sought compensatory and punitive damages.2
The Magistrate Judge recommended that the District Court grant the defendants’ motions for summary judgment. The Magistrate Judge explained that Twil-lie’s claims against Franklin were based on the incorrect premise that Franklin had ordered the destruction of the evidence at issue, noting that Franklin had attested that he had no involvement in Twillie’s prosecution or the maintenance of the evidence. Similarly, the Magistrate Judge concluded that Nelson did not destroy the evidence, based on the affidavit of Detective Patrick Howe, who attested that another detective had destroyed the rape kit. The Magistrate Judge also concluded that Foulk was entitled to summary judgment on Twillie’s claim that Foulk denied him access to the DNA evidence because the evidence was destroyed long before Twil-lie’s request. The Magistrate Judge noted that Foulk may have been negligent in failing to inform Twillie that the evidence had been destroyed, but that such a failure did not rise to the level of a constitutional claim.
The District Court adopted the report and recommendation of the Magistrate Judge with respect to Twillie’s claims against Foulk and Franklin. The District Court rejected the Magistrate Judge’s recommendation as to Twillie’s claims against Nelson because Twillie submitted with his objections to the Magistrate Judge’s report an affidavit from Foulk, which stated that Foulk believed that Nelson had destroyed the rape kit. Concluding that there was a genuine issue of material fact as to whether Nelson was involved in the destruction of the evidence, the District Court recommitted the matter to the Magistrate Judge.3
The Magistrate Judge then recommended that the District Court grant summary judgment for Nelson on other grounds he had raised in his summary judgment motion. The Magistrate Judge decided that a damages award on a claim that potentially exculpatory evidence was improperly destroyed implicitly questioned the validity of Twillie’s conviction and was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Alternatively, the Magistrate Judge concluded that Twillie’s claims arising from the destruction of evidence were barred by the doctrine of qualified immunity. The District Court adopted the Magistrate Judge’s report and recommendation. Twillie unsuccessfully moved for reconsideration, and this appeal followed.
We need not resolve the difficult question of whether Twillie’s claims arising from the destruction of evidence are barred by Heck, 512 U.S. 477, 114 S.Ct. 2364, because, even assuming that they are not so barred, there has been no due process violation in this case. The United States Supreme Court recently addressed a state prisoner’s due process right to post-conviction access to evidence for purposes of DNA testing. In District Attorney’s Office v. Osborne, — U.S.-, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), the Su*304preme Court stated that a criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man and that a state has more flexibility in deciding post-conviction relief procedures. Id. at 2820. The prisoner in Osborne had not tried to obtain in state court the DNA testing he sought via his federal lawsuit, and the Supreme Court stated that he thus could not complain that the procedures, which were adequate on their face, did not work in practice. Id. at 2821. The Supreme Court also rejected the prisoner’s argument that he had a substantive due process right to the state’s evidence so that he could apply new DNA-testing technology that might prove him innocent. Id. at 2322. The Supreme Court noted that establishing such a right would force the Court to act as policymakers, requiring it to decide related issues such as the obligation to preserve forensic evidence that might later be tested. Id. at 2323.
Twillie argues in his brief that his procedural due process rights have been violated and asserts that the principles of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which require disclosure of material exculpatory evidence to a defendant before trial, apply here. The Supreme Court, however, rejected such a conclusion in Osborne. Osborne, 129 S.Ct. at 2319-20.
Twillie does not challenge the constitutionality of Pennsylvania’s requirements for obtaining post-conviction DNA testing under 42 Pa. Cons.Stat. § 9543.1(c)(3). Rather, he contends that the state courts failed to consider, as required by the statute, whether his “participation” in the crime was at issue at trial.4 Assuming this argument is properly before us, it is without merit. The record reflects that, in affirming the denial of DNA testing, the Pennsylvania Superior Court stated that Twillie did not show that his identity was at issue at trial and that his defense at trial was that the victim had consented to sexual intercourse. Moreover, the Superior Court explained that Twillie did not raise during trial a defense of mistaken identity “or deny the fact that he had a sexual encounter with the victim.” 4/4/05 Pa. Superior Court Decision at 6. Thus, contrary to Twillie’s argument, the Superi- or Court did address his participation in the crime.
To the extent Twillie claims a violation of his substantive due process rights, it follows from Osborne that, if there is no substantive due process right to access state evidence for purposes of post-conviction DNA testing, there is no violation of substantive due process rights where a prisoner seeks access to state evidence for purposes of post-conviction DNA testing and learns that the evidence has been destroyed. We thus conclude that the District Court did not err in granting summary judgment for Appellees Nelson and Franklin, albeit on different grounds. See Tse v. Ventana Medical Systems, Inc., 297 F.3d 210, 224 (3d Cir.2002) (noting appellate court may affirm a decision on a ground other than that relied on by the district court).5
*305We also agree with the District Court’s conclusion that Appellee Foulk’s denial of Twillie’s request for access to the evidence did not violate his due process rights. Finally, the District Court did not abuse its discretion in denying Twillie’s motion for reconsideration.
Accordingly, we will affirm the orders of the District Court. Appellees’ motion for leave to file supplemental appendix, which may be construed as a motion to expand the record, is denied.
. The complaint that Twillie pursued was his second amended complaint filed on May 17, 2007.
. Twillie also asserted that the defendants discriminated against him and that Nelson falsely stated at the time of the crime that he and his co-defendant had confessed, causing the rape charges to be filed against him and precluding a full range of testing of the evidence. Twillie also brought a state claim of intentional infliction of emotional stress. Twillie does not pursue these claims in this appeal.
. After the District Court issued its opinion, the defendants filed a supplemental affidavit by Detective Howe attesting that he had made an error in his earlier affidavit and that Nelson had in fact authorized the destruction of the rape kit in 1993.
. The statute requires an applicant to:
(c) present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant's conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming exculpatory results, would establish:
(A) the applicant’s actual innocence of the offense for which the applicant was convicted[.]
42 Pa. Cons.Stat. § 9543.1(c)(3).
. Based on our conclusion that Appellees Nelson and Franklin are entitled to summary *305judgment for these reasons, we need not address the District Court's conclusions that the doctrine of qualified immunity applies and that Franklin was not involved in the maintenance of the evidence at issue. It is also unnecessary to address Twillie's contention that the Appellees failed to serve him the affidavits filed in District Court. Because Twillie does not have a viable due process claim, we reject Twillie's argument that the District Court erred in refusing to allow him to conduct discovery regarding the circumstances of the destruction of evidence or to explore whether the evidence was in fact destroyed.'
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*165
JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia, the brief filed by appellant, and the motion to expedite. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order dated August 7, 2009, be affirmed, as appellant’s tort claim is frivolous. It is
FURTHER ORDERED that the motion to expedite be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s orders filed July 15, 2008, and February 20, 2009, be affirmed. The district court properly held that Counts I, III, IV, and V are barred by res judicata. See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Smalls v. United States, 471 F.3d 186, 192 (D.C.Cir.2006). Appellant’s challenge in Count II to the University of Southern California’s standing to file an opposition in the trademark proceedings fails, because appellant has not shown that the University of Southern California lacked either “a real interest” in the proceedings or a “reasonable basis” for its belief that it would be damaged by registration of the mark. See 15 U.S.C. § 1063(a) (“Any person who believes that he would be damaged by the registration of a mark ... may ... file an opposition.... ”); Ritchie v. Simpson, 170 F.3d 1092, 1095 (Fed.Cir.1999) (the opposer need only have “a ‘real interest’ in the proceedings” and a “ ‘reasonable’ basis for his belief of damage” in order to have standing to file an opposition). Nor has appellant shown that the district court abused its discretion in dismissing his claims against the remaining defendants for failure to prosecute. On appeal, appellant does not argue that he timely responded to the district court’s July 15, *1662008 order to show cause. Instead, appellant alleges he served Dr. Macedonia at the University of Southern California’s address. This method of service does not comply with Fed.R.Civ.P. 4(e), and appellant does not allege that he ever provided the district court with proof of service, as required by Fed.R.Civ.P. 4(). As for appellant’s position that pursuant to 15 U.S.C. § 1071(b) he was not required to serve the Trademark Trial and Appeal Board, its judges, the Patent and Trademark Office, and its director, the applicable portion of the statute provides that “[t]he Director [of the PTO] shall not be made a party to an inter partes proceeding under this subsection, but he shall be notified of the filing of the complaint by the clerk of the court....” 15 U.S.C. § 1071(b)(2). Appellant, however, did not bring a typical inter partes trademark case, but filed a civil action naming as defendants the Trademark Trial and Appeal Board, its judges, the U.S. Patent and Trademark Office, and its director, and alleging constitutional and civil rights violations. Accordingly, 15 U.S.C. § 1071 does not relieve appellant from his obligation to serve these parties.
To the extent Solomon seeks judicial review of the Trademark Trial and Appeal Board’s entry of default judgment against him, Solomon has not shown that the Board abused its discretion in imposing this sanction. See 37 C.F.R. § 2.120(g)(1) (“[I]f a party fails to comply with an order of the [Appeal Board] relating to disclosure or discovery ... the Board may make an appropriate order, including those provided in Rule 37(b)(2) of the Federal Rules of Civil Procedure.”); see also Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168, 1169 (D.C.Cir.1981) (courts are not required to impose a less drastic sanction before entering a default judgment).
The district court did not abuse its discretion in dismissing appellant’s claim against Evans & Sutherland for failure to comply with the notice pleading requirements of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (discussing how the complaint must give fair notice of what the claim is and the grounds upon which it rests); see also Ciralsky v. CIA, 355 F.3d 661, 670 n. 9 (D.C.Cir.2004). Although pro se complaints are liberally construed, they still “must present a claim upon which relief can be granted by the court.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C.Cir.1981). Solomon’s vague and cursory pleading of his claim against Evans & Sutherland did not provide fair notice of what the claim is or the grounds upon which it rests.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34®. It is
ORDERED AND ADJUDGED that the district court’s order filed July 28, 2009, be affirmed. Appellant’s claims concern the actions of a judge in the Superior Court of the District of Columbia, but the District of Columbia is “an independent political entity,” not a part of the federal government. Cannon v. United States, 645 F.2d 1128, 1137, n. 35 (D.C.Cir.1981); see also Floyd v. District of Columbia, 129 F.3d 152, 156 (D.C.Cir.1997); Crosby-Bey v. District of Columbia, 786 F.2d 1182, 1186 (D.C.Cir.1986). Moreover, sovereign immunity bars suits against the United States absent an unequivocal waiver. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Appellant has not stated any claim for which there has been a waiver of sovereign immunity.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). Upon consideration of the foregoing and the motion for appointment of counsel and the request to file brief and appendix electronically, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
*168FURTHER ORDERED that the request to file brief and appendix electronically be dismissed as moot, because appellant filed paper copies of his brief. It is
FURTHER ORDERED AND ADJUDGED that the district court’s order filed July 29, 2009, be affirmed, albeit on grounds different from those relied upon by district court. See Jenkins v. Washington Convention Center, 236 F.3d 6, 8 n. 3 (D.C.Cir.2001) (and cases cited therein). Because “a judgment on the merits in a prior suit bars a second suit involving the same parties ... based on the same cause of action,” Taylor v. Blakey, 490 F.3d 965, 969 (D.C.Cir.2007) (internal citation omitted), and because appellant acknowledges in his complaint and his appellate brief that he has filed the same action against the same parties in several courts, appellant’s complaint was properly dismissed. The doctrines of claim and issue preclusion “bar relitigation both of ‘issues that were’ and of issues that ‘could have been raised’ in the prior action.” Id. (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)); see generally NRDC v. EPA, 513 F.3d 257, 260 (D.C.Cir.2008) (standards for claim preclusion); Yamaha Corp. of America v. U.S., 961 F.2d 245, 254 (D.C.Cir.1992) (standards for issue preclusion). This court may raise the res judica-ta preclusion defense sua sponte. See Arizona v. California, 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000); Brown v. D.C., 514 F.3d 1279, 1285-86 (D.C.Cir.2008).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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*174SUMMARY ORDER
Third-party plaintiff-appellant E-21 Global, Inc. (“E21” or “plaintiff”) appeals from an order granting judgment as a matter of law in favor of third-party defendants-appellees, Second Renaissance LLC (“SRLLC”) and Gerald P. Colapinto (“Co-lapinto”) at the close of the evidence in a jury trial for plaintiffs fraud action. Plaintiffs fraud action arose out of its purchases, along with those of Craig Franco (“Franco”), of sublicenses to manufacture and sell reproductions of certain works of art from Bangkok Crafts Corporation (“BCC”) and its assignee, Treasures of St. Peter’s in the Vatican, Ltd. (“TSV”), which had a master license from Capitolo di San Pietro in Vaticano (“Capitolo”). At the time E21 purchased each of its subli-censes, SRLLC and Colapinto were acting as the marketing and sales agents for BCC. In 2002, BCC filed a complaint against Capitolo asserting breach of contract, fraud, conversion, and unjust enrichment, seeking declaratory judgment and specific performance. In 2003, Capitolo filed its answer and counterclaims and also joined all of BCC’s sublicensees, including E21, as counterclaim defendants, alleging unjust enrichment and violations of the Latham Act and New York Unfair Competition Law.
On November 26, 2003, E21 filed a reply to Capitolo’s claims and joined TSV, TSV and Capitolo’s owner, Colapinto, and SRLLC, as additional counterclaim defendants. On June 23, 2004, the District Court granted partial summary judgment to Capitolo on its counterclaim against BCC, finding that the master license Capi-tolo sold to BCC in 2000 was void. On February 8, 2005, the District Court held that, as result of the void master license, the sublicenses BCC issued to E21 in September 2000 were also void. A jury trial on E21 and Franco’s fraud claims against Colapinto and SRLLC was held between March 31, 2008 and April 8, 2008.1 Prior to trial, E21 moved in limine to prohibit defendants from disputing the District Court’s finding that the master license was void. The District Court denied the motion, holding that its grant of partial summary judgment did not constitute res judi-cata or the “law of the case” for purposes of the fraud claims against Colapinto and SRLLC.
At the close of the evidence, the District Court granted defendants’ motion to dismiss pursuant to Rule 50(a) of the Federal Rules of Civil Procedure, based on its conclusion that plaintiffs presented no evidence that Colapinto had knowledge that his fraudulent representations were false or that he had reckless disregard for the truth thereof. E21 appeals from the District Court’s grant of judgment as a matter of law in favor of defendants. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
Plaintiff argues that the District Court erred in (1) holding that E21 failed to offer evidence of defendant Colapinto’s intent to defraud, and (2) in prohibiting E21 from putting into evidence the District Court’s prior decision which held the master license between Capitolo and BCC invalid.
We review de novo a district court’s order denying a motion for judgment as a matter of law under Rule 50. See, e.g., Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir.2002). In determining whether judgment as a matter of law is appropriate, the court should “review all of the evidence in the record. In doing so ... the court must draw all reasonable inferences in favor of the nonmoving party, and it may not *175make credibility determinations or weigh the evidence.... [T]he court should give credence to the evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks and citations omitted). Judgment as a matter of law is improper unless “the evidence points so strongly in favor of one party that a reasonable jury could reach but one conclusion, in favor of that party ... It should be noted, however, that [a] mere scintilla of evidence is insufficient to present a question for the jury.” Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir.1991) (internal quotation marks and citations omitted).
The District Court concluded that plaintiffs claim for fraud could not stand because plaintiff failed to provide clear and convincing evidence of Colapinto’s scienter. See Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 239 (2d Cir.1999) (“Each element [of a claim for fraud] must be proven by clear and convincing evidence.”) Plaintiff argues that it offered “sufficient evidence from which a reasonable jury could infer that Colapinto’s false and misleading representations were made with the intent to defraud E21.” Appellant’s Br. at 18. However, we agree with the District Court that evidence “from which a reasonable jury could infer” scienter, rather than “clear and convincing” evidence, is insufficient to sustain a claim for fraud. The evidence to which plaintiff draws our attention supports a finding that defendant Colapinto made a false representation of material fact, but it does not by clear and convincing evidence support the claim that Colapinto knew of that falsity or intended to defraud plaintiff. Accordingly, the District Court did not err in finding that plaintiff failed to provide “clear and convincing” evidence sufficient to sustain plaintiffs claim of fraud.
Nor can we conclude that the District Court erred in refusing to consider as the “law of the case” its summary judgment conclusion that Capitolo and BCC’s master license was void. Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, 322 F.3d 147, 167-68 (2d Cir.2003). The District Court’s summary judgment determination did not consider the master license as it concerned SRLLC or Colapinto. Even if it was error to rule that plaintiff could not admit the invalidity of the master license, it was harmless error. Evidence that the master license was valid would not have resolved the issue central to plaintiffs fraud case: namely, whether and when Colapinto and SRLLC knew the master license was void.
We have considered the remainder of plaintiffs arguments and find them to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
. E21’s fraud claims against TSV, TSV's owner, and BCC were settled prior to trial.
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SUMMARY ORDER
Plaintiff, Maureen McNamara, appeals from a judgment entered August 18, 2008 in the United States District Court for the Eastern District of New York (Irizarry, /.). On defendant’s motion, the district court dismissed McNamara’s claims for lack of subject-matter jurisdiction and for failure to state a cause of action. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We have considered McNamara’s arguments, and they are without merit. The majority of her claims fail on one or more of the doctrines of sovereign immunity, official judicial immunity, and standing. Arguably, claims under the ADA; the First Amendment; and the Due Process, Equal Protection, and Guarantee clauses survive; however, to the extent that they do, McNamara has not plausibly pleaded sufficient facts to survive a motion to dismiss. Her CPLR Article 78 claim fails for lack of subject-matter jurisdiction. See Morningside Supermarket Corp. v. N.Y. State Dep’t of Health, 432 F.Supp.2d 334, 346 (S.D.N.Y.2006); Cartagena v. City of N.Y., 257 F.Supp.2d 708, 710 (S.D.N.Y.2003).
We note finally, in dicta, that we do not rely upon the district court’s application of the Rooker-Feldman doctrine in affirming. Rooker-Feldman only applies when the requested federal court remedy of an alleged injury caused by a state court judgment would require overturning or modifying that state court judgment. See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir.2005). Inasmuch as McNamara’s claims challenge the procedures applied in all attorney disciplinary proceedings and seek damages and prospective relief rather than a modification of her suspension or reinstatement orders, her claims would not appear to be barred by Rooker-Feldman. Nevertheless, her claims were properly dismissed for the reasons noted above.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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OPINION
PER CURIAM.
Pro se appellants, Sudesh Mehta, Sureh-ka Mehta, and Steven Pinkney, appeal from the dismissal of a lawsuit that they filed in the United States District Court for the District of New Jersey. Because the appeal presents no substantial question, we will summarily affirm the District Court’s order. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
In January 2009, the appellants/plaintiffs filed a three-paragraph complaint seeking a stay of foreclosure and claiming *271that they were denied “civil rights in Housing Code Section 1983 violations” by the New Jersey state courts. They also claim to have been denied the right to a jury trial, due process, and equal process by the New Jersey courts, and state that the “last action by the State Court was to allow foreclosure on the subject property despite strong evidence of fraud by Defendants) ----This taking of plaintiffs’ property was the final action in a series of lawsuits initiated in 1993.”
On March 3, 2009, the District Court entered an order dismissing the complaint as “frivolous and malicious” under 28 U.S.C. § 1915(e)(2)(B). The District Court noted that the claims were duplica-tive of those contained in the plaintiffs’ earlier complaints and arose from the same facts underlying the previous causes of action. Additionally, the District Court concluded that the property claims under 42 U.S.C. § 1983 were time-barred, that the allegations regarding the deprivation of due process failed to state a claim, and that the complaint “is so confusing and unintelligible that it violates Fed.R.Civ.P. 8(a) and no party could possibly reply to it.”
We have jurisdiction pursuant to 28 U.S.C. § 1291,1 and we agree with the District Court that the complaint is frivolous under § 1915, as the claims are “based on an indisputably meritless legal theory.” See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The complaint, which is not a model of clarity, appears to seek review of state court decisions regarding the “subject property.” Such claims are barred by the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). Further, because the legal theory on which the claims are based is untenable, the District Court did not err by dismissing the complaint without providing the plaintiffs an opportunity to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (noting that dismissal of case without leave to amend is proper when amendment would be futile or inequitable).
For these reasons, we will summarily affirm the District Court’s order dismissing the complaint. We deny the motion to stay the appeal as moot.
. As the District Court acknowledged in its May 20, 2009 order, its order dismissing the complaint did not comply with Federal Rule of Civil Procedure 58(a). Accordingly, the appellants had 150 days from the entry of the March 3, 2009 order to appeal from the dismissal of the complaint. See United Auto. Workers Local 259 Social Sec. Dep’t v. Metro Auto Center, 501 F.3d 283, 287 (3d Cir.2007). For this reason, the appellants' June 3, 2009 notice of appeal is timely. See Fed. R.App. P. 4(a)(7)(ii).
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OPINION
PER CURIAM.
On January 21, 2009, Anthony Carter, Sr., filed a motion to proceed in forma pauperis and pro se complaint in the United States District Court for the District of Delaware asserting claims of employment discrimination under Title VII of the Civil Rights Act of 1964 against defendant Mar-mon Keystone. According to the complaint, the alleged discriminatory acts (harassment and discrimination based on race) took place on February 13, 2004, those acts are not continuing, and Carter received a right-to-sue letter from the Equal Employment Opportunity Commission on April 5, 2005. The District Court granted Carter leave to proceed in forma pauperis and dismissed his complaint under 28 U.S.C. § 1915(e)(2). The District Court observed that Carter had ninety days to file a complaint after receipt of the April 2005 right-to-sue letter, but he untimely filed his complaint in January 2009. Carter timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s § 1915(e)(2) dismissal is plenary. Allah v. Seiverling, 229 F.3d 220 (3d Cir.2000). After a careful review of the record, we conclude that this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, and thus we will summarily affirm the District Court’s judgment.
As the District Court explained, a claim brought under Title VII must be filed within ninety days of plaintiffs receipt of the right-to-sue letter. See 42 U.S.C. § 2000e — 5(f)(1); McGovern v. City of Phila., 554 F.3d 114, 115 n. 1 (3d Cir.2009). We regard the ninety-day filing period as a statute of limitations, making it subject to the doctrine of equitable tolling. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 470 (3d Cir.2001). Equitable tolling is generally appropriate in *273Title VII cases only when “the defendant has actively misled the plaintiff; when the plaintiff ‘in some extraordinary way’ was prevented from asserting her rights; or when the plaintiff timely asserted her rights in the wrong forum.” Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999) (citations omitted). Plaintiff bears the burden to show that equitable tolling is warranted. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d Cir.2005).
Carter offers no viable argument at all for an equitable tolling of the limitations period, and his complaint, as plainly indicated on its face, was filed well after expiration of the ninety-day period to bring suit. While the statute of limitations ordinarily must be raised as an affirmative defense, and is subject to principles of waiver if not timely asserted, a district court has authority to dismiss an in forma pauperis complaint sua sponte under § 1915(e) if the limitations defense is obvious from the complaint, and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006). The District Court properly invoked that authority here.
We note that Carter appears to have filed his untimely complaint in an effort to obtain review on the merits after the District Court dismissed his previous Title VII suit based on the same right-to-sue letter. This Court affirmed the dismissal of that prior complaint because Carter “was given two opportunities to properly effect service of process or obtain a waiver of service from Marmon Keystone,” but he “failed to comply with the requirements of Rule 4 on either occasion.” Carter v. Mar-mon Keystone, 278 Fed.Appx. 141, 142 (3d Cir.2008) (per curiam). The District Court did not err here in refusing Carter another “bite at the apple” through the filing of this untimely Title VII complaint.
For these reasons, the District Court’s judgment will be affirmed.
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OPINION
PER CURIAM.
Petitioners Carlos Zapata-Marulanda and Gloria Galeano de Zapata (“petitioners”), husband and wife, are natives and citizens of Colombia. They seek review of a final order of removal. Because we conclude that substantial evidence supports the BIA’s determination that petitioners do not have a well-founded fear of future persecution and, as a result, that they are not entitled to asylum, we will deny their petition for review.
I.
Petitioners last entered the United States on April 26, 2003. In November 2003, they were served with a Notice to Appear, charging them as overstays in violation of 8 U.S.C. § 1227(a)(1)(B). Petitioners conceded removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).1 In the alternative, petitioners requested voluntary departure. In support of their requests, Zapata-Maru-landa, as lead petitioner, argued that he had been persecuted by guerrillas from the Revolutionary Armed Forces of Colombia (“FARC”)2 on account of an imputed political opinion.
According to Zapata-Marulanda, this persecution began in 1997 after he — in his position as a supervisor in a textile factory — reported a loss of inventory in the fabric used to make uniforms for the armed forces of Colombia. The army intelligence unit (rather than the police) conducted an investigation and discovered that several workers were stealing the material and selling it to the guerrillas; this allowed the guerrillas to sew and tailor authentic-looking uniforms. The workers were eventually fired and arrested. Some*275how the guerrillas discovered Zapata-Ma-rulanda’s involvement in the investigation and targeted him as a “military objective” for his actions. Zapata-Marulanda received threatening phone calls, during which the stolen fabric was referenced, and three unknown men appeared at Zapata-Marulanda’s workplace looking for him.
Because of his fear of retribution from the guerillas, Zapata-Marulanda was forced to quit his job of 26 years, and he and his wife moved from place to place (including three trips to the United States). Zapata-Marulanda alleged that despite these moves, FARC caught up with him in July of 2001 while he was in Barranquilla. At that time, three men— who were allegedly guerrillas looking for Zapata-Marulanda — were in a shootout with police across the street from where petitioner was hiding out. All three were fatally wounded. For the next year or so, petitioners moved around to ensure their own safety and eventually relocated to the United States for good in 2003.
After a hearing during which Zapata-Marulanda testified to these events, the Immigration Judge (“IJ”) denied petitioners all relief with the exception of voluntary departure. The IJ characterized petitioners’ case as one amounting to “a request for protection under or similar to our whistle blower laws.” (IJ Op. at 6.) The IJ further commented that the “main issue in these cases is whether the connection between the alleged persecutor and the [petitioners] has been established. Id. at 7. The IJ concluded that Zapata-Marulanda’s testimony was not supportive of such a “link.”3 Without discussing petitioners’ prayer for relief in the form of withholding of removal or under the CAT, the IJ denied petitioners’ requests for relief and ordered them removed after a 60-day period of voluntary departure.
The BIA dismissed petitioners’ appeal. Citing to Matter of Fuentes, 19 I. & N. Dec. 658, 661 (BIA 1988), the BIA concluded that Zapata-Marulanda did not suffer past persecution on account of a protected ground. It further concluded that, in any event, the acts described by Zapata-Maru-landa did not detail mistreatment of sufficient severity to constitute past persecution. The BIA likewise determined that Zapata-Marulanda does not have a well-founded fear of future persecution, reasoning that he has never been physically harmed in Colombia, and any alleged fear is belied by petitioners’ repeated travels back and forth between the United States and Colombia after the July 2001 shootout, before finally coming to the United States and seeking asylum in 2003. Finally, the BIA concluded that petitioners necessarily failed to satisfy the standard for withholding of removal, or to establish that it is more likely than not that Zapata-Marulan-da would be tortured by the government of Colombia upon returning to that country. Petitioners filed this petition for review.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Abdulai v. Ashcroft, 239 *276F.3d 542, 547 (3d Cir.2001). Because the BIA provided its own analysis, we review the decision of the BIA. See Lukwago v. Ashcroft, 329 F.3d 157, 166 (3d Cir.2003). We review the BIA’s factual findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007), upholding them “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). We will treat Zapata-Marulanda’s testimony, summarized above, as credible. See Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir.2009) (“Under the Act, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal”) (emphasis added, quotation omitted).
III.
The only issue presented is whether the BIA’s determination that petitioners are not entitled to asylum is supported by substantial evidence.4 We conclude that it is.
To obtain asylum as refugees, petitioners must show that they are unable or unwilling to return to Colombia because of past persecution or a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42). “[Pjersecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotation omitted). A demonstration of a well-founded fear of persecution, by itself, would entitle petitioners to asylum relief. See Camara, 580 F.3d at 202. A demonstration of past persecution, on the other hand, “raises a presumption of a well-founded fear of future persecution” that shifts the burden to the Government. Ab-dulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
The alleged persecution must be “on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control.’ ” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285, 288 (3d Cir.2007) (quotation omitted); see also Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir.2005) (“[A]n applicant must show that the persecution was motivated, at least in part, by one of the protected characteristics”) (emphasis in original). Race, religion and political opinion are all statutorily enumerated grounds. See 8 U.S.C. § 1101(a)(42)(A).
As already noted, the BIA relied on its decision in Matter of Fuentes to support its conclusion that petitioners had “not suffer[ed] past persecution in Colombia on account of a protected ground under the Act.” (BIA Op. at 2.) It reasoned that revolutionary struggles involving guerrillas often involve violence against “civilian institutions that support domestic stability and the strength of the existing government,” and that the dangers those institutions face “are no more related to their personal characteristics or political beliefs than are the dangers faced by military combatants.” Id. The BIA’s reliance on Matter of Fuentes is misplaced as it does not appear that Zapata-Marulanda was targeted by FARC because the textile plant where he worked made uniforms for *277the military. It does not appear, however, that Zapata-Marulanda was targeted by FARC because the textile plant where he worked made uniforms for the military. Rather, he, and he alone, was targeted because the information he provided sabotaged FARC’s illicit supply of military-issued materials that was being stolen by its operatives working within that company.
But even assuming both that Zapata-Marulanda was targeted by FARC because of an imputed political opinion, see, e.g., Delgado v. Mukasey, 508 F.3d 702, 707 (2d Cir.2007) (petitioner who would be targeted by FARC in the future for betraying them, when coupled with government’s unwillingness to control FARC, could show persecution for an imputed political opinion in the form of opposition to FARC), and that the July 2001 shootout is sufficient to constitute past persecution, see, e.g., Sanchez Jimenez v. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir.2007) (attempted murder of petitioner by FARC constitutes past persecution), the record reveals substantial evidence to rebut any presumption that petitioners’ fear of future persecution is well-founded. See Camara, 580 F.3d at 202 (“a well-founded fear of future persecution is the touchstone of asylum”). As advanced by the Government, and as specifically outlined by the BIA,
[Zapata-Marulanda]’s claim to a well-founded fear of future persecution is undercut by the fact that he traveled to the United States on three previous occasions, and returned to Colombia each time. All three trips to the United States occurred during the time frame that [Zapata-Marulanda] alleges the persecution was taking place in Colombia. Finally, [Zapata-Marulanda] remained in Colombia for nearly two years after the July 2001 shoot out [sic] between the police and FARC before finally coming to the United States and filing for asylum.
(BIA Op. at 2.) For those reasons, we agree with the BIA that petitioners do not have a well-founded fear of future persecution.5
Accordingly, we will deny the petition for review.
. Zapata-Marulanda is the lead petitioner, and Galeano de Zapata sought derivative asylum pursuant to 8 U.S.C. § 1158(b)(3)(A).
. FARC is "a leftist guerrilla revolutionary group, ... active throughout much of Colombia. The FARC was officially formed in 1966 and has continuously and often violently opposed the Colombian government since that time. The FARC is designated as a terrorist organization by the United States Government. While the FARC is active throughout Colombia, it holds particular sway in many rural areas where it effectively controls local politics and the civilian population.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 335 (3d Cir.2008).
. While the IJ noted that a newspaper article that Zapata-Marulanda submitted in support of the July 2001 shootout was never rebutted by DHS, he nonetheless stated that the article (also characterized as "the best evidence in the case”) had internal problems. Although the article reported that the shootout occurred on July 28, Zapata-Marulanda stated that it happened on July 29. Moreover, the IJ noted that the article mentioned Zapata-Marulanda by name and intimated that he had been targeted for assassination, but he nonetheless criticized the article for failing to indicate the reason for the attempted assassination and the force behind that attempt. Despite these observations, the IJ did not make an adverse credibility determination.
. By failing to challenge the BIA's determination that they are ineligible for withholding of removal and CAT relief in their opening brief, petitioners have waived those issues. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.2000) (“Rule 28(a) of the Federal Rules of Appellate Procedure and our Local Appellate Rule 28.1(a) require appellants to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief'); see also Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. Moreover, petitioners' children have resided in Colombia since the time of the alleged persecution without any harm. See Abdulrah-man, 330 F.3d at 592 n. 3 (presumption of well-founded fear of persecution can be rebutted with evidence that petitioner can reasonably avoid persecution by relocating to another part of his or her country); cf. Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) ("[Wjhen family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of a petitioner's well-founded fear of future persecution is diminished”).
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01-04-2023
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11-05-2022
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