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https://www.courtlistener.com/api/rest/v3/opinions/8476857/
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MEMORANDUM **
Sajid Iqbal, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing “whether substantial evidence supports a finding by clear and convincing evidence” that petitioner is removable, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.2004), we deny the petition for review.
Substantial evidence supports the BIA’s conclusion that Iqbal entered his marriage for the purpose of procuring an immigration benefit. Substantial evidence supports the BIA’s determination that Iqbal’s former wife was a credible witness. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). Iqbal’s former wife testified that the marriage was a result of coercion, that they never lived together or consummated the marriage, and that she was unaware of the immigrant visa petition allegedly filed by her for Iqbal’s benefit. See Nakamoto, 363 F.3d at 882-83 (relevant inquiry is whether parties intended to establish a life together at the time of marriage).
Petitioner’s remaining contentions lack merit.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8476861/
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MEMORANDUM **
Karine Martirosyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and we deny in part and dismiss in part the petition for review.
We decline to consider the evidence Martirosyan attached to her opening brief because our review is limited to the administrative record underlying the BIA’s decision. 8 U.S.C. § 1252(b)(4)(A); see Fisher *741V. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc).
Substantial evidence supports the agency’s determination that the brief detentions and beatings Martirosyan suffered, which did not require medical treatment, did not rise to the level of past persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir.1995). Further, the record does not compel the conclusion that Martirosyan has a well-founded fear of future persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153-54 (9th Cir.2005). Accordingly, Martirosyan’s asylum claim fails.
Because Martirosyan failed to establish eligibility for asylum, she necessarily failed to meet the more stringent standard for withholding of removal. See Fisher, 79 F.3d at 960-61.
Substantial evidence supports the agency’s denial of CAT relief because Mar-tirosyan has not established it is more likely than not that she will be tortured if she returned to Armenia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
We lack jurisdiction to consider Martirosyan’s due process contentions concerning her removal from the United States because they arise independently of her final order of removal. See Singh v. Gonzales, 499 F.3d 969, 977-79 (9th Cir.2007)(distinguishing between challenges to final orders of removal over which this court has jurisdiction under 8 U.S.C. § 1252 and challenges that arise independently).
We also lack jurisdiction to consider Martirosyan’s challenge to the IJ’s finding that the Department of Homeland Security had sustained the removal charge under 8 U.S.C. § 1182(a)(6)(C)(i), because it was not raised before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Maria Ester Mendez and Bélica Marisol Garcia-Mendez, mother and daughter and natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an appeal from an immigration judge’s decision denying their applications for relief under the Nicaraguan and Central American Relief Act (“NACARA”), cancellation of removal, and asylum, withholding of removal, *747and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We dismiss in part and deny in part the petition for review.
We lack jurisdiction, under statute, to review the agency’s determination that Mendez was not eligible for NACARA relief because she failed to establish that she timely registered for ABC benefits, and Mendez does not raise a legal or constitutional question that invokes our jurisdiction. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 309(e)(5)(C)(i)-(ii), Pub.L. No. 104-208, 110 Stat. 3009 (1996), as amended by Nicaraguan Adjustment and Central American Relief Act of 1997 § 203(a)(1), Pub.L. 105-100, 111 Stat. 2160 (1997) (providing that “[a] determination by the Attorney General as to whether an alien satisfies the requirements of this clause ... is final and shall not be subject to review by any court”); see also 8 U.S.C. § 1252(d) (restoring jurisdiction over questions of law and constitutional questions).
Contrary to petitioners’ contention, the BIA neither abused its discretion in denying their unsupported motion to file a late brief, nor inadequately explained its reason for doing so. See 8 C.F.R. § 1003.3(c)(1) (BIA has discretion to extend time period for filing of briefs).
In their opening brief, petitioners fail to address, and therefore have waived any challenge to, the agency’s denial of their applications for cancellation of removal, asylum, withholding of removal, and CAT relief. 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).
Petitioners’ due process contentions are unavailing.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
Charles E. Taylor, appointed counsel for Patrick Wilson, has filed a motion to withdraw on appeal, 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 Wilson’s convictions and sentences are AFFIRMED.
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MEMORANDUM **
Yong Sun, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because the discrepancy between Sun’s testimony and his passport regarding his whereabouts on the day of his alleged arrest is substantial and goes to the heart of his claim. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000); Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004) (adverse credibility determination is supported where at least one of the identified grounds is supported by substantial evidence and goes to the heart of the claim). In the absence of credible testimony, Sun’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Sun’s CAT claim is based on the same statements found to be not credi*775ble, and he fails to point to any other evidence in the record to establish it is more likely than not he would be tortured if returned to China, substantial evidence supports the agency’s denial of CAT protection. See id. at 1156-57.
To the extent Sun contends ineffective assistance of counsel or raises a claim based on China’s family planning policy, this court lacks jurisdiction to review the claims because they were not exhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Finally, we decline to consider the evidence Sun attached to his opening brief because our review is limited to the administrative record underlying the BIA’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Flor Maria Herrera-Escobar, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Si-meonov 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). We deny the petition for review.
We agree with the BIA’s conclusion that, even assuming Herrera-Escobar testified credibly, she is not eligible for asylum based on her membership in a particular social group, namely, bus employee cashiers who resist criminal gang extortion. See Barrios v. Holder, 581 F.3d 849, 854-56 (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 v. Mukasey, 542 F.3d 738, 745-46 (9th Cir.2008) (rejecting as a particular social group “young men in El Salvador resisting gang violence”) (internal quotation omitted). Further, substantial evidence supports the agency’s finding that Herrera-Escobar did not demonstrate the threats she experienced from gang members demanding money established past persecution or a well-founded fear of future persecution on account of her political opinion. See Santos-Lemus, 542 F.3d at 746-47; see also Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir.2009) (a protected ground has to be “one central reason” for persecution). Accordingly, because Herrera-Escobar failed to demonstrate that she was persecuted on account of a protected ground, we deny the petition as to her asylum and withholding of removal claims. See Barrios, 581 F.3d at 856.
Herrera-Escobar does not raise any arguments in her opening brief regarding the agency’s denial of her CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Carlos Soto-Lopez appeals from the 77-month sentence imposed following his guilty-plea conviction for being a deported *809alien found in the United States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment. We grant the parties’ requests to take judicial notice of certain documents outside the district court record.
Soto-Lopez contends that the district court procedurally erred by failing to address adequately his argument that he was entitled to the 48-month sentence he would have received had his attorney not advised him to reject the government’s “fast-track” offer. Our review of the record indicates that the judge adequately addressed this argument. See Rita v. United States, 551 U.S. 338, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Carty, 520 F.3d 984, 995 (9th Cir.2008) (en banc).
Soto-Lopez also contends that the district court abused its discretion in imposing the 77-month sentence at the bottom of the Guidelines range rather than the 48-month sentence he would have received had he accepted the government’s offer. Considering the totality of the circumstances, the district court’s sentence was not substantively unreasonable. See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (district court did not abuse its discretion in rejecting defendant’s request for 48-month “fast-track” sentence offered by government and rejected).
Finally, as Soto-Lopez concedes, his contention that the sentencing judge violated the Fifth and Sixth Amendments by increasing his sentence pursuant to an aggravated felony finding is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
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 **
Yong Sun, a native and citizen of China, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because the discrepancy between Sun’s testimony and his passport regarding his whereabouts on the day of his alleged arrest is substantial and goes to the heart of his claim. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000); Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004) (adverse credibility determination is supported where at least one of the identified grounds is supported by substantial evidence and goes to the heart of the claim). In the absence of credible testimony, Sun’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Sun’s CAT claim is based on the same statements found to be not credi*775ble, and he fails to point to any other evidence in the record to establish it is more likely than not he would be tortured if returned to China, substantial evidence supports the agency’s denial of CAT protection. See id. at 1156-57.
To the extent Sun contends ineffective assistance of counsel or raises a claim based on China’s family planning policy, this court lacks jurisdiction to review the claims because they were not exhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Finally, we decline to consider the evidence Sun attached to his opening brief because our review is limited to the administrative record underlying the BIA’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Flor Maria Herrera-Escobar, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.2008), except to the extent that deference is owed to the BIA’s determination of the governing statutes and regulations, Si-meonov 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). We deny the petition for review.
We agree with the BIA’s conclusion that, even assuming Herrera-Escobar testified credibly, she is not eligible for asylum based on her membership in a particular social group, namely, bus employee cashiers who resist criminal gang extortion. See Barrios v. Holder, 581 F.3d 849, 854-56 (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 v. Mukasey, 542 F.3d 738, 745-46 (9th Cir.2008) (rejecting as a particular social group “young men in El Salvador resisting gang violence”) (internal quotation omitted). Further, substantial evidence supports the agency’s finding that Herrera-Escobar did not demonstrate the threats she experienced from gang members demanding money established past persecution or a well-founded fear of future persecution on account of her political opinion. See Santos-Lemus, 542 F.3d at 746-47; see also Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir.2009) (a protected ground has to be “one central reason” for persecution). Accordingly, because Herrera-Escobar failed to demonstrate that she was persecuted on account of a protected ground, we deny the petition as to her asylum and withholding of removal claims. See Barrios, 581 F.3d at 856.
Herrera-Escobar does not raise any arguments in her opening brief regarding the agency’s denial of her CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8476870/
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MEMORANDUM **
Carlos Soto-Lopez appeals from the 77-month sentence imposed following his guilty-plea conviction for being a deported *809alien found in the United States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment. We grant the parties’ requests to take judicial notice of certain documents outside the district court record.
Soto-Lopez contends that the district court procedurally erred by failing to address adequately his argument that he was entitled to the 48-month sentence he would have received had his attorney not advised him to reject the government’s “fast-track” offer. Our review of the record indicates that the judge adequately addressed this argument. See Rita v. United States, 551 U.S. 338, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Carty, 520 F.3d 984, 995 (9th Cir.2008) (en banc).
Soto-Lopez also contends that the district court abused its discretion in imposing the 77-month sentence at the bottom of the Guidelines range rather than the 48-month sentence he would have received had he accepted the government’s offer. Considering the totality of the circumstances, the district court’s sentence was not substantively unreasonable. See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (district court did not abuse its discretion in rejecting defendant’s request for 48-month “fast-track” sentence offered by government and rejected).
Finally, as Soto-Lopez concedes, his contention that the sentencing judge violated the Fifth and Sixth Amendments by increasing his sentence pursuant to an aggravated felony finding is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to § 1326(b). See United States v. Herrera-Bianco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
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 **
Jose-Luis Favela-Hernandez appeals from his 71-month sentence for re-entry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Favela-Hernandez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Antonio Derryl Thomas appeals from the district court’s judgment revoking his supervised release and imposing a 30-day sentence of imprisonment, plus a new 32-month term of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Thomas’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bonar Romulus Panggabean, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the immigration judge’s (“U”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009); Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). We deny the petition for review.
The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Panggabean’s asylum application. See 8 C.F.R. §§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Therefore, we deny the petition with respect to Panggabean’s asylum claim.
Substantial evidence supports the IJ’s finding that Panggabean was not credible because he testified inconsistently regarding the attacks he allegedly suffered due to his involvement in the Christian youth ministry in college, see Chebchoub v. INS, *822257 F.3d 1038, 1043 (9th Cir.2001) (finding that petitioner’s “testimony about the events leading up to his departure” “ ‘went to heart of [his] asylum claim’ ” and “ ‘related to the basis for his alleged fear of persecution’ ”), and he failed to specify the injuries he suffered after such attacks, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th Cir.1999) (holding level of specificity proper consideration in adverse credibility determination). Moreover, because Pang-gabean’s testimony lacked credibility, his failure to present easily available corroborating evidence was fatal to his application. See Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir.2000) (“[I]f the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate his testimony can be fatal to his asylum application.”). Therefore, we deny the petition with respect to his withholding of removal claim.
Finally, because Panggabean’s CAT claim was based on the same statements the agency found not credible and he does not point to any evidence to show it is more likely than not that he would be tortured if returned to Indonesia, we deny the petition with respect to his CAT claim. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The joint stipulated motion of relator UNITE HERE and Cintas Corporation to voluntarily dismiss the appeal under Federal Rule of Appellate Procedure 42(b) because of settlement in this qui tam action is GRANTED. Each party will bear its own costs and fees.
The motion of Workers United to intervene in this action is DENIED as moot.
The motion of Cintas Corporation for leave to file a sur-reply memorandum is DENIED as moot.
This case is CLOSED.
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MEMORANDUM **
Mario Santos-Salado and Wendy Robles-Palma, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen and reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and reconsider, and review de novo claims of due process violations, including ineffective assistance of counsel claims, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen re*861garding ineffective assistance of counsel because petitioners failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
In their opening brief, petitioners fail to challenge the BIA’s decision denying their motion to reconsider and have waived any challenge to the BIA’s determination that they failed to identify any error of fact or law in the BIA’s prior order denying their motion to reopen. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ramon Astorga Salazar and his wife, Maria Del Carmen Astorga, natives and citizens of Mexico, petition pro se for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. *863We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review petitioners’ contention that they demonstrated eligibility for relief under the Convention Against Torture because they failed to raise that issue before the BIA and thereby failed to exhaust their administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (the court lacks jurisdiction to review contentions not raised before the agency).
The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because it was filed over eleven months after the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal), and petitioners did not show that any regulatory exception to the time limitation applied, see 8 C.F.R. § 1003.2(c)(3), or that they were entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (deadline for filing motion to reopen can be equitably tolled “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Bonar Romulus Panggabean, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the immigration judge’s (“U”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009); Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004). We deny the petition for review.
The record does not compel the conclusion that changed or extraordinary circumstances excused the untimely filing of Panggabean’s asylum application. See 8 C.F.R. §§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Therefore, we deny the petition with respect to Panggabean’s asylum claim.
Substantial evidence supports the IJ’s finding that Panggabean was not credible because he testified inconsistently regarding the attacks he allegedly suffered due to his involvement in the Christian youth ministry in college, see Chebchoub v. INS, *822257 F.3d 1038, 1043 (9th Cir.2001) (finding that petitioner’s “testimony about the events leading up to his departure” “ ‘went to heart of [his] asylum claim’ ” and “ ‘related to the basis for his alleged fear of persecution’ ”), and he failed to specify the injuries he suffered after such attacks, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th Cir.1999) (holding level of specificity proper consideration in adverse credibility determination). Moreover, because Pang-gabean’s testimony lacked credibility, his failure to present easily available corroborating evidence was fatal to his application. See Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir.2000) (“[I]f the trier of fact either does not believe the applicant or does not know what to believe, the applicant’s failure to corroborate his testimony can be fatal to his asylum application.”). Therefore, we deny the petition with respect to his withholding of removal claim.
Finally, because Panggabean’s CAT claim was based on the same statements the agency found not credible and he does not point to any evidence to show it is more likely than not that he would be tortured if returned to Indonesia, we deny the petition with respect to his CAT claim. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The joint stipulated motion of relator UNITE HERE and Cintas Corporation to voluntarily dismiss the appeal under Federal Rule of Appellate Procedure 42(b) because of settlement in this qui tam action is GRANTED. Each party will bear its own costs and fees.
The motion of Workers United to intervene in this action is DENIED as moot.
The motion of Cintas Corporation for leave to file a sur-reply memorandum is DENIED as moot.
This case is CLOSED.
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MEMORANDUM **
Mario Santos-Salado and Wendy Robles-Palma, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen and reconsider. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and reconsider, and review de novo claims of due process violations, including ineffective assistance of counsel claims, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005), and we deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen re*861garding ineffective assistance of counsel because petitioners failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and the ineffective assistance is not plain on the face of the record. See Reyes v. Ashcroft, 358 F.3d 592, 597-99 (9th Cir.2004).
In their opening brief, petitioners fail to challenge the BIA’s decision denying their motion to reconsider and have waived any challenge to the BIA’s determination that they failed to identify any error of fact or law in the BIA’s prior order denying their motion to reopen. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ramon Astorga Salazar and his wife, Maria Del Carmen Astorga, natives and citizens of Mexico, petition pro se for review of an order of the Board of Immigration Appeals (“BIA”) denying their motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. *863We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review petitioners’ contention that they demonstrated eligibility for relief under the Convention Against Torture because they failed to raise that issue before the BIA and thereby failed to exhaust their administrative remedies. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (the court lacks jurisdiction to review contentions not raised before the agency).
The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because it was filed over eleven months after the BIA’s final order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be filed within ninety days of final order of removal), and petitioners did not show that any regulatory exception to the time limitation applied, see 8 C.F.R. § 1003.2(c)(3), or that they were entitled to equitable tolling, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (deadline for filing motion to reopen can be equitably tolled “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions for review, Mario Hernandez Gonzalez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for cancellation of removal, and the BIA’s order denying his motion to reopen, based on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s continuous physical presence determination, Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004), and for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petitions for review.
The record does not compel the conclusion that Hernandez Gonzalez met his burden to establish continuous physical presence where he provided insufficient evidence of his presence from 1993 to 2000. See Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999) (a contrary result is not compelled where there is “[t]he possibility of drawing two inconsistent conclusions from the evidence”) (internal quotation marks and citation omitted).
The BIA acted within its discretion in denying as untimely Hernandez Gonzalez’s motion to reopen because it was filed more than 90 days after the BIA’s final removal order, see 8 C.F.R. § 1003.2(c)(2), and Hernandez-Gonzalez did not show he was entitled to equitable tolling, see Iturribarria, 321 F.3d at 897.
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Pro se appellant Harold Wolford, a federal pretrial detainee currently incarcerated in Youngstown, Ohio, appeals from the District Court’s order dismissing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In January 2008, Wolford was indicted in the United States District Court for the Western District of Pennsylvania on co*232caine and weapon possession charges. Counsel was appointed to represent him and the Magistrate Judge ordered him temporarily detained pending a hearing. On May 11, 2009, Wolford filed a pro se petition to dismiss the indictment in his criminal case, challenging the court’s jurisdiction and seeking his immediate release. This petition was denied by the Magistrate Judge. Dissatisfied with that result, Wol-ford initiated the instant civil action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241, again challenging the court’s jurisdiction and seeking his release from detention. In his complaint, Wolford again claimed that Public Law 80-772 and 18 U.S.C. § 3231 were enacted unconstitutionally, and thus the District Court lacked jurisdiction to prosecute him. The District Court dismissed the petition, concluding that Public Law 80-772 and 18 U.S.C. § 3231 were properly enacted and constitutional. Wolford now appeals from the order of the District Court dismissing his petition for habeas corpus pursuant to 28 U.S.C. § 2241.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the District Court’s dismissal. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000). Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
Wolford’s habeas petition was properly denied. His contention that he is being held in custody pursuant to an unlawful grant of jurisdictional authority because the criminal jurisdiction statute, 18 U.S.C. § 3231, was enacted by less than a quorum of Congress, is without merit. Section 3231 was properly enacted and is binding. The 1948 amendment to that statute, Public Law 80-772, passed both houses of Congress and was signed into law by President Truman on June 25,1947. See United States v. Risquet, 426 F.Supp.2d 310, 311 (E.D.Pa.2006).
We will summarily affirm the District Court’s judgment denying habeas relief.
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OPINION
PER CURIAM.
Appellant Fayed Tawalbeh, a federal prisoner incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey, was charged in United States District Court for the Western District of Virginia with being a member of a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962(c) (“RICO”), and conspiring to violate RICO in violation of 18 U.S.C. § 1962(d). Tawalbeh also was charged with conspiring to damage and destroy by means of fire a building known as “The Corner Store” and to use an incendiary destructive device, a “Molotov cocktail,” in violation of 18 U.S.C. § 371; maliciously damaging and destroying by means of fire The Corner Store in violation of 18 U.S.C. § 844(i); using an incendiary destructive device, a “Molotov cocktail,” during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and conspiracy to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846. A jury acquitted him of the RICO and drug distribution conspiracy counts, but found him guilty on the remaining counts. The sentencing court imposed a total term of imprisonment of 70 months on the arson counts, and an additional 30 years pursuant to 18 U.S.C. § 924(c) for use of a Molotov cocktail during and in relation to a crime of violence, for a total sentence of 430 months.
*234The United States Court of Appeals for the Fourth Circuit affirmed the judgment of conviction and sentence in United States v. Abed, 2000 WL 14190 (4th Cir. January 10, 2000) (district court did not err in sentencing Tawalbeh to mandatory, consecutive thirty-year sentence under section 924(c) for using Molotov cocktail to commit The Corner Store arson). The United States Supreme Court denied certiorari.
On November 6, 2000, Tawalbeh filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, contending in part that the evidence was insufficient to prove his involvement in the arson and insufficient to convict him of aiding and abetting the use of a Molotov cocktail. The motion was denied on the merits, see Tawalbeh v. United States, 2001 WL 1274562 (W.D.Va. October 19, 2001), and Tawalbeh appealed. The Fourth Circuit denied Tawalbeh’s request for a certificate of appealability in an appeal docketed at C.A. No. 02-6835, and the Supreme Court denied certiorari.
On March 26, 2007, Tawalbeh filed a motion pursuant to 18 U.S.C. § 3582(c)(2) in the sentencing court, seeking relief under Amendment 599 of the Guidelines. The motion was denied as an unauthorized second or successive section 2255 motion, and the court provided information in its Memorandum Opinion on how to apply to the Fourth Circuit Court of Appeals for authorization to file a second or successive section 2255 motion, see Tawalbeh v. United States, 2007 WL 1097864 (W.D.Va. April 9, 2007). The Fourth Circuit affirmed in an appeal docketed at C.A. No. 07-6787.
On March 3, 2008, Tawalbeh filed a motion for authorization to file a second or successive section 2255 motion in the Fourth Circuit Court of Appeals, see In re: Tawalbeh, C.A. No. 08-0137. Tawalbeh contended in his application (which is available for viewing on the public docket) that he had newly discovered evidence of both actual innocence and prosecutorial misconduct. The application included affidavits from Christopher L. Womack, Patricia Khaled, and certain documents obtained through the Freedom of Information Act. The Fourth Circuit denied Tawalbeh authorization to file a second section 2255 motion on March 31, 2008.
At issue in the instant appeal, on July 24, 2009, Tawalbeh filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in United District Court for the District of New Jersey, where he is confined, contending that he has newly discovered evidence showing that he is actually innocent of conspiracy to commit arson, arson, and use of a Molotov cocktail, and that his incarceration is accordingly a miscarriage of justice. The application included affidavits from Kimberly Spradlin, Rayed Fawzy Abed, and Patricia Khaled, and contained some of the same documentary evidence he submitted with his previous motion for authorization to file a second or successive section 2255 motion. In an order entered on October 16, 2009, the District Court denied the habeas corpus petition for lack of jurisdiction.
Tawalbeh appeals. Our Clerk advised him that his appeal was subject to summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We have reviewed that submission.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no substantial question is presented by the appeal. Our review is plenary. United States v. Thompson, 70 F.3d 279, 280-81 (3d Cir.1995).
*235We will summarily affirm the order of the District Court because no substantial question is presented by this appeal. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or sentence. See Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Under the explicit terms of 28 U.S.C. § 2255, unless a section 2255 motion would be “inadequate or ineffective,” even a habeas corpus petition cannot be entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). Section 2255 is not inadequate or ineffective simply because Tawalbeh is prevented by the gatekeeping requirements of the statute, see 28 U.S.C. § 2255(h), from litigating his claims of innocence and prosecutorial misconduct.1 “It is the efficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)). It thus makes no difference that, as Tawalbeh asserts in his summary action response, some of his evidence is new and could not actually have been considered by the sentencing court in the context of his first section 2255. Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, see In re: Dorsainvil, 119 F.3d 245 (3d Cir.1997), and would not apply here because Tawalbeh does not claim that he was convicted for conduct later deemed to be noncriminal by a change in law. See id. at 251.
For the foregoing reasons, we will summarily affirm the order of the District Court dismissing Tawalbeh’s habeas corpus petition for lack of jurisdiction.
. Section 2255 provides that:
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
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OPINION
PER CURIAM.
Eric Cook, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania denying his motion for transcripts. We will affirm.
In 2003, Cook pleaded guilty in District Court to possession of a firearm by a convicted felon. He was sentenced to 62 months in prison and three years of supervised release. Cook was later released from prison, and, in 2008, he was arrested on drug-related charges. The Probation Office petitioned for Cook’s arrest because he had violated the conditions of his supervised release. On May 21, 2009, the District Court held a hearing on the revocation of Cook’s supervised release. The District Court found that Cook had violated the conditions of his supervised release and ordered that he serve 24 months in prison. Cook did not appeal.1
In September 2009, Cook filed a pro se motion requesting that a transcript of his revocation hearing be prepared and provided to him free of cost. Cook stated that he sought the transcript for purposes of preparing a motion pursuant to 28 U.S.C. § 2255 challenging the revocation of his supervised release. The District Court denied the motion, noting that there was nothing pending before the court at that time. This appeal followed.
Cook asserts that he has a valid ineffective assistance of counsel claim based upon counsel’s failure to file a notice of appeal from the District Court’s order revoking his supervised release. Cook contends that there is insufficient evidence supporting the revocation. Cook also asserts that counsel failed to challenge evidence presented at his hearing where a witness was not made available for cross-examination.
If Cook had filed a motion pursuant to 28 U.S.C. § 2255 raising his ineffective assistance of counsel claims and he was granted in forma pauperis status, the transcript would have been prepared at the government’s expense only if the trial judge certified that the suit was not frivolous and that the transcript was needed to decide the issues presented. See 28 *239U.S.C. § 753(f). The District Court did not abuse its discretion in denying Cook’s motion for transcripts where there was no pending § 2255 motion and his motion for transcripts did not set forth the claims he wished to pursue.
Because this appeal does not raise a substantial question, we will affirm the District Court’s order.
. On July 28, 2009, Cook filed a motion for an extension of time to file a notice of appeal. The District Court denied the motion, explaining that the 30-day period that it was authorized to extend the time to appeal had passed.
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OPINION
PER CURIAM.
Appellant Curtis L. McKeithan, proceeding pro se, sought a reduction in his sentence of imprisonment pursuant to 18 U.S.C. § 3582(e), which the District Court denied. For the reasons that follow, we will summarily affirm.
In 2001, following a jury trial in the United States District Court for the Middle District of Pennsylvania, McKeithan was convicted of conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base (crack), distribution and possession with intent to distribute in excess of 50 grams of cocaine base (crack), and related offenses. The *240Court determined his base offense level to be 38, with a 4 level upward adjustment for his lead role in the offense, for a total base offense level of 42, with a criminal history category of III. This resulted in an imprisonment range of 360 months to life. McKeithan was sentenced to a total of 420 months’ imprisonment, consisting of 360 months for the drug-related offenses with a consecutive 60 month sentence for the possession of a firearm conviction.
In 2007, the United States Sentencing Commission enacted Amendment 706, which lowered the base offense level for cocaine base (“crack”) offenses, and made the Amendment retroactive. McKeithan thereafter filed a motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that the sentencing court may modify a term of imprisonment:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
In determining whether a defendant’s sentence is eligible for such a reduction, the sentencing court is directed to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” See U.S. Sentencing Guidelines § lB1.10(b).
In support of his motion, McKeithan made several arguments regarding the District Court’s discretion in sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Spears v. United States, — U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), and the unfairness of the disparity in sentences between him and his co-defendant. However, as both the Government and the Federal Public Defender explained to the District Court, while McKeithan’s base offense level under the new Sentencing Guidelines would be readjusted to a 40, he remains in the same sentencing range.1 Accordingly, the District Court denied McKeithan’s motion.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s interpretation of the Sentencing Guidelines de novo and its decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
In his informal brief, which we construe as his opposition to possible summary action, McKeithan argues that the District Court erred in not considering the sentencing factors listed in 18 U.S.C. § 3553(a) and in not exercising its discretion in sentencing him under Booker and its progeny. There is a split amongst the U.S. Courts of Appeals as to whether the *241sentencing guidelines are advisory rather than mandatory in the context of a Section 8582 sentence modification. Compare United States v. Hicks, 472 F.3d 1167 (9th Cir.2007), with United States v. Dillon, 572 F.3d 146, 149-50 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009). However, this issue does not arise unless the sentencing range under the amended guidelines is lower than it was at the time of the defendant’s original sentencing. See Mateo, 560 F.3d at 154 (“[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level”). Because McKeithan’s sentencing range was not affected by Amendment 706, he is not eligible for a reduction in his sentence pursuant to Section 3582(c). Accordingly, the District Court properly denied McKeithan’s motion for a reduction in sentence.
Based on the foregoing, we conclude that this appeal presents no “substantial question,” and will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
. Because McKeithan’s five-year sentence on the gun charge was not affected by Amendment 706, McKeithan is not eligible for re-sentencing on that charge.
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OPINION
PER CURIAM.
Joseph Fessler and Ann Fessler (“the Fesslers”) appeal from an order of the United States District Court for the Middle District of Pennsylvania denying their motion entitled “Requestin [sic] Counter-suit Against Kirk Sauer Community Development Wilkes Barre, PA. Motion for Sanctions.” For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
In 1973, the Fesslers’ property was taken by eminent domain by the City of Wilkes-Barre, Pennsylvania. Following a denial of what they deemed an adequate relocation benefit, the Fesslers filed numerous state and federal lawsuits against the City of Wilkes-Barre Redevelopment Authority and the United States Department of Housing and Urban Development.
On October 24, 2007, the Fesslers, proceeding pro se, filed an action in the District Court against several current and former employees of the Wilkes-Barre Redevelopment Authority and the Department of Housing and Urban Development related to their dissatisfaction with the City of Wilkes-Barre’s denial of a relocation payment to the Fesslers. The Defendants moved to dismiss the case and the Fesslers moved for default judgment against Defendant Alphonso Johnson on grounds that he failed to timely answer their Complaint.
On August 22, 2008, the District Court granted Defendants’ motions to dismiss the case and denied the Fesslers’ motion for default judgment. The Fesslers filed a timely appeal to this Court and we summarily affirmed the judgment of the District Court. See Fessler v. Sauer, 316 Fed.Appx. 174 (3d Cir.2009).
In September 2009, the Fesslers filed in the District Court the current motion entitled “Requestin [sic] Countersuit Against Kirk Sauer Community Development Wilkes Barre, PA. Motion for Sanctions.”1 The District Court denied the motion with*243out opinion and the Fesslers have appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court appropriately denied the Fesslers’ motion. By the time that the Fesslers filed their motion in the District Court, final judgment had already been entered in their case. Because the Fesslers’ motion did not seek relief under a specific Federal Rule of Civil Procedure, and mindful that Federal Rules of Civil Procedure 59 and 60 govern the opening of final judgments, we consider whether the motion should have been characterized as a motion for relief thereunder. It should not have been.
First, the Fesslers would not have been entitled to relief under Rule 59(e) as the motion was filed beyond the ten days provided for under the Rule. See Fed.R.Civ.P. 59. Second, the Fesslers would not have been entitled to relief under Rule 60(b) as the they did not set forth any basis for granting relief under the Rule, including the catch-all provision in Rule 60(b)(6) that allows a court to relieve a party from a judgment for “any other reason that justifies relief.” See Fed.R.Civ.P. 60; see also Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008). Even construing the motion liberally, we cannot discern any conceivable basis to reopen the judgment.
As there is no substantial question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Appellants’ document entitled “Payment of Legal Fees,” which appears to seek an order from this Court directing the Appellees to pay Appellants’ legal fees, is denied.
. The Defendants in the case had previously filed a motion for sanctions and attorneys fees against the Fesslers which the District Court denied.
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*245OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Razo, a citizen of the Philippines, was employed on board the cruise ship MW Empress of the Seas. Royal Caribbean was the operator and bareboat charterer of the M/V Nordic Empress. Nordic Empress Shipping owned the ship. Razo alleges that he was injured during a lifeboat drill. He brought various claims against numerous parties in New Jersey state court, including claims for Jones Act negligence and unseaworthiness against Royal Caribbean and Nordic. The case was removed to the District Court.
Razo was employed by the terms of a collective bargaining agreement that incorporated a Philippine Overseas and Employment Administration (“POEA”) standard contract. Relying on the terms of that contract, Royal Caribbean and Nordic successfully sought to compel arbitration of his claims. Razo now appeals the District Court’s order to compel, arguing that the claims are not removable pursuant to the Savings to Suitors clause of 28 U.S.C. § 1338 and the anti-removal statute, 28 U.S.C. § 1445(a), applicable to Jones Act and the Federal Employer’s Liability Act cases.
Razo first complains that the District Court erred in ruling that an arbitration agreement existed between himself and Royal Caribbean at the time of Razo’s injury. We agree with the District Court that the following provision was properly incorporated into Razo’s contract: “[i]n cases of claims and disputes arising from [seafaring] employment, the parties covered by a collective bargaining agreement, shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.”
Razo argues that this incorporated language conflicts with Section 5 of the contract, which states: “all claims disputes or controversies that may arise from this employment contract shall be brought by the herein parties exclusively before the proper courts in Metro Manila.” We agree with the District Court however, that the plain language of Section 5 dictates the venue of the arbitration. Therefore, we do not find any conflict between Section 2 and Section 5.
Razo next argues that, even if the provisions of the contract do not conflict, the agreement is unenforceable under the New York Convention Act. 9 U.S.C. § 201 et seq. An arbitration agreement falls under the Convention if: “(1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a Convention signatory; (3) the agreement arises out of a commercial legal relationship; and (4) a party to the agreement is not an American citizen.” Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d 270, 273 (5th Cir.2002). Moreover, the Convention Act mandates arbitration if these requirements are met. Id.
We have already ruled that there is an agreement to arbitrate. It is beyond question that the Philippines is a signatory to the Convention and that Razo is not a United States citizen. We also find that the District Court was correct in concluding that contracts of employment for seaman are not excluded from the term “commercial” in the Convention Act. For these reasons we do not find any error in the District Court’s conclusion that the Con*246vention Act applies to the contract at issue, compelling arbitration here.
Moreover, we find no reason to disturb the District Court’s ruling that the forum for arbitration is the Philippines. The District Court correctly ruled that Razo’s reliance on the Jones Act (46 U.S.C. § 30104 et seq.), the Federal Employer’s Liability Act (45 U.S.C. § 51 et seq.) and 46 U.S.C. § 30509 is misplaced. The Convention Act provides a separate basis for jurisdiction, and seaman employment contracts are encompassed by that Act. Therefore, the Jones Act does not apply and, because of this, the provisions of the Federal Employer’s Liability Act are not implicated. Moreover, Razo cannot rely on 46 U.S.C. § 30509, which applies to passengers of common carriers. Finally, it is axiomatic that Razo, as a plaintiff, cannot invoke forum non conveniens to move the arbitration from the Philippines.
With regard to Nordic’s appeal of the District Court’s remand of Razo’s unseaworthiness claims against Nordic, we agree with the District Court’s analysis that, as owner of the ship, Nordic cannot dodge potential liability through contractual provisions. Moreover, the District Court was correct in determining that Nordic cannot rely upon the arbitration agreement that binds Royal Caribbean and Razo as a defense here. The District Court properly remanded this claim.
For all of these reasons, we will affirm the order of the District Court.
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OPINION
PER CURIAM.
Petitioner Robert Gene Rega, proceeding pro se, filed this mandamus petition pursuant to 28 U.S.C. § 1651(a), seeking an order compelling the District Court to adjudicate petitioner’s motion to compel discovery. For the reasons that follow, we will deny the petition.
I.
Rega is currently an inmate at the State Correctional Institution (“SCI”) at Greene, in Waynesburg, Pennsylvania. On February 6, 2008, Rega filed a civil rights action in the Western District of Pennsylvania against the Secretary of the Department of Corrections (“DOC”) and other DOC and SCI officials, alleging a failure to protect and/or intervene in connection with an assault by another inmate, deliberate indifference to his serious medical needs, and retaliation.
Rega alleges that on or about May 25, 2009, he issued discovery requests to the named defendants. On July 15, 2009, Rega filed a motion to compel responses to his discovery requests. Rega supplemented this motion on July 27, 2009. Defendants opposed the motion, and on August 31, 2009, Rega filed a reply.1 On October 26, 2009, Rega filed the instant petition for writ of mandamus seeking an order compelling the District Court to rule on his motion. Rega believes that the District Court’s delay is preventing Rega from obtaining evidentiary support for his claims necessary to respond to defendants’ anticipated motion for summary judgment.
II.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Before a writ of mandamus will issue, the petitioner must establish that the writ is not being used as a substitute for the regular appeals process, that there is no alternative remedy or other adequate means to obtain the desired relief, and that the right to the relief sought is “clear and indisputable.” Id. at 403, 96 S.Ct. 2119; see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005).
As a general rule, “matters of docket control and conduct of discovery” are within the sound discretion of the District Court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Nonetheless, mandamus may be warranted in cases where a district court’s delay is “tantamount to a failure to exercise jurisdiction.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). This case, however, does not present such a situation. Rega filed his motion to compel on July 15, 2009, defendants’ responded, and Rega filed a reply on August 31, 2009. A delay of four months in the disposition of a motion to *248compel “does not yet rise to the level of a denial of due process,” and we are confident that the District Court will enter an order in due course. See Id. (holding that district court’s delay of four months did not warrant mandamus relief).
Accordingly, Rega’s mandamus petition will be denied. This denial is without prejudice to petitioner filing a new petition for writ of mandamus if the District Court does not act within 120 days of the date of this order.
. On the same date, Rega also filed a motion to compel responses to plaintiffs’ first and second set of interrogatories. That motion appears to be a separate motion to compel from the one at issue here.
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OPINION
PER CURIAM.
Rahim Caldwell, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his civil rights complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We will affirm.
In December 2008, Caldwell filed a complaint pursuant to 42 U.S.C. § 1983 against the Egg Harbor Police Department. His one-sentence complaint alleged that “the defendant ] violated his constitutional rights by falsely arresting plaintiff for asking for a lawyer, and other rights, false charges, bail, jail time, and making false identification of plaintiff with multiple photos and eating in front of plaintiff while laughing, and taunting plaintiff by waving food at plaintiff while laughing at plaintiff.” The District Court concluded that the Egg Harbor Police Department was not a “person” subject to liability under § 1983, dismissed the complaint without prejudice, and permitted Caldwell to cure the defect within 30 days. Caldwell did not file an amended complaint, however. Instead, he filed a notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n. 5 (3d Cir.1992); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223 (3d Cir.2007); Fed.R.Civ.P. 58. We exercise plenary review over the District Court’s sua sponte dismissal of the complaint. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). When reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See id. In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), we are required to “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
“[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Indeed, it is well-settled that, under § 1983, municipal liability arises only when a constitutional deprivation re-*252suits from an official custom or policy. Id. at 690-91, 98 S.Ct. 2018. Because Caldwell failed to identify any such customs or policies at the Egg Harbor Police Department, the District Court properly dismissed his complaint. Cf. Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir.1997) (holding that, for purposes of § 1983 claims, municipalities and police departments are treated as single entity); see also N.J. Stat. Ann. § 40A:14-118 (recognizing that police departments are created as executive and enforcement branches of government, whether as divisions, departments, or agencies of municipalities).
Caldwell argues that the District Court improperly dismissed his case “before [the] defendant ] [was] served and before plaintiff could file any motions.” Pursuant to § 1915(e)(2)(B), courts must sua sponte dismiss in forma pauperis actions that are frivolous or fail to state a claim. But before dismissing such an action for failure to state a claim, the District Court must grant leave to file an amended complaint, or explain why amendment would be futile. See Phillips, 515 F.3d at 245-46. In this case, the District Court notified Caldwell of the deficiencies in his complaint and provided him with an opportunity to file an amended complaint. He failed to take advantage of that opportunity, however, and he has offered no justification for his failure to do so. Cf. In re Westinghouse See. Litig., 90 F.3d 696, 703-04 (3d Cir.1996) (holding that district court did not abuse its discretion when it dismissed complaint with prejudice following plaintiffs decision not to amend). Therefore, we conclude that the District Court did not err.
For the reasons given, we will affirm the judgment of the District Court.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Plaintiffs appeal the District Court’s grant of Defendant’s motion for summary judgment on their claims under the Equal Credit Opportunity Act (“ECOA”), the Fair Housing Act (“FHA”), and the Ad*253ministrative Procedures Act (“APA”). For the following reasons, we will affirm the judgment of the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case.2 Plaintiffs filed this class action on January 10, 2000, alleging national origin discrimination in the United States Department of Agriculture’s administration of two rural housing loan programs. The class definition, as modified by this Court in a prior decision, includes:
All Virgin Islanders who applied or attempted to apply for, and/or received, housing credit, services, home ownership, assistance, training, and/or educational opportunities from the USDA through its Rural Development offices (and predecessor designations) located in the U.S. Virgin Islands at any time between January 1, 1981 and January 10, 2000.
Chiang v. Veneman, 385 F.3d 256, 274 (3d Cir.2004). Plaintiffs’ First Amended Complaint included six counts. Count I alleged discrimination prior to the distribution of loan applications. Count II alleged discrimination between distribution of the applications and the funding of loans. Count III alleged discrimination at or subsequent to the funding of loans. Counts IV and V included claims of discrimination under the FHA and the APA respectively. Finally, Count VI alleged a violation of the Equal Protection Clause.' However, this final count was effectively withdrawn by Plaintiffs when they failed to amend it to provide a more definite statement of their claim, as required by the District Court. On August 20, 2008, 2008 WL 3925260, the District Court granted Defendant summary judgment on all of the Plaintiffs’ claims.
II.
Plaintiffs raise five issues on appeal. First, they contend that the District Court erred in considering their ECOA “pattern or practice” discrimination claim as three separate claims. Second, they assert that the court erred in finding their claims were barred by the statute of limitations. Third, they challenge various elements of the court’s analysis of their discrimination claims. Fourth, they argue that the court erred in denying their Rule 56(f) motion to withhold a decision on summary judgment pending additional discovery. Fifth, they claim the court .erred by dismissing the entire action when the Plaintiffs’ individual claims were not at issue.3
Substantially for the reasons set forth in the District Court’s thorough and well-reasoned Memorandum and Order of August 20, 2008, this Court will affirm the District Court’s order granting summary judgment in favor of Defendant.
We briefly comment on one issue raised in the briefs. Contrary to Plaintiffs’ assertion that it is “the trial standard of proof,” the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was appropriately applied by *254the District Court in the context of summary judgment. As we have declared: “Under [the McDonnell Douglas] analysis, the employee must first establish a prima facie case. If the employee is able to present such a case, then the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its adverse employment decision. If the employer is able to do so, the burden shifts back to the employee, who, to defeat a motion for summary judgment, must show that the employer’s articulated reason was a pretext for intentional discrimination.” Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir.2008) (emphasis added).
We have considered the Plaintiffs’ other arguments on appeal and find them to be without merit. For the foregoing reasons, we will affirm the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. A more detailed discussion of the factual background in this case can be found in our prior decision on an interlocutory appeal challenging the grant of class certification, Chiang v. Veneman, 385 F.3d 256 (3d Cir.2004).
.We exercise plenary review over a district court’s summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).
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OPINION
PER CURIAM.
Kevin Paul Woodruff appeals pro se from the District Court’s order denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. Because the appeal presents no substantial question, we will summarily affirm.
I.
Woodruff is a federal prisoner serving a 235-month sentence. In September 2005, while he was incarcerated at USP-Victor-ville, Woodruff received an incident report charging him with possession of a weapon and refusing an order. Woodruff requested that a videotape of the events be shown at his disciplinary hearing, but the Disciplinary Hearing Officer (“DHO”) denied the request, stating that the tape did “not focus on” Woodruff. The DHO found Woodruff guilty of possession of a weapon and assessed him a forty-day loss of good time credit, among other sanctions. In May 2006, while incarcerated at USP-Lewisburg, Woodruff received an incident report for refusing to provide a urine sample. At his hearing, Woodruff testified that he had already provided a sample for the month. He stated that he had questioned the officer about the type of sample he was being ordered to give, asked to speak with the Lieutenant, and stated that he was not refusing the order. The DHO found Woodruff guilty of interfering with staff, most like refusing to provide a urine sample, and assessed him forty-one days loss of good time credit.
Woodruff exhausted his administrative remedies and then filed the § 2241 habeas petition at issue here. He challenges the loss of good time credits as a result of both disciplinary findings, and claims that he was denied due process at both hearings. He also claims that he was transferred to the Special Management Unit in retaliation for filing administrative grievances and for racially motivated reasons, and that he was denied appropriate medical care. Finally, Woodruff asserts that the Bureau of Prisons has miscalculated his sentence by disallowing vested good time credits and by denying him prior custody credit. The District Court denied the petition by memorandum and order entered on March 12, 2009, 2009 WL 703200. On September 11, 2009, 2009 WL 2997005, the District Court denied Woodruffs timely motion for reconsideration.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. 2253(a). A certificate of appealability is not required to appeal from the denial of this § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009), We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
III.
Each of Woodruffs claims lack merit, substantially for the reasons explained by the District Court.
A. Disciplinary Violations
Federal prisoners have a liberty interest in statutory good time credits. See Vega, 493 F.3d at 317 n. 4 (citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. *2652963, 41 L.Ed.2d 935 (1974), and 18 U.S.C. § 3624(b)(1)). Thus, “[w]here a prison disciplinary hearing may result in the loss of good time credits, ... the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity ... to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (citing Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963). In addition, the disciplinary decision must be supported by “some evidence,” meaning, “any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 105 S.Ct. 2768.
The District Court correctly found that Woodruff received written notice more than twenty-four hours prior to each hearing, received a copy of the incident reports, and initially appeared before the Unit Disciplinary Committee at each prison. In each ease, he attended the hearing and had the opportunity to call witnesses, present evidence, and have a staff representative’s assistance. In each case, the DHO prepared a written record, documented his findings, and explained the sanctions imposed.
Woodruff argues that he was denied the opportunity to view and present an allegedly exculpatory videotape at the first disciplinary hearing at USP-Victor-ville. The DHO expressly addressed Woodruffs request regarding the videotape, stating that the tape did not focus on him. The DHO considered that an eyewitness officer reported that he observed Woodruff with a weapon in his hand, saw him hand it to another inmate who disposed of it, and then found two weapons in the area of similar size and description as the one alleged to have been in Woodruffs possession. Woodruff also admitted that he had approached the area of the altercation with the intent to break it up. As such, the District Court correctly determined that there was “some evidence” to support the DHO’s finding that Woodruff was in possession of a weapon.
As to the incident at USP-Lewis-burg, Woodruff told the correctional officer who ordered him to prove a urine sample that he had already given a monthly sample, and he requested that the Lieutenant be called to clarify the situation. Woodruff claims that his request did not constitute a refusal to provide a specimen. The DHO investigated Woodruffs argument, and found that he had not provided a sample for the month. The DHO concluded that when Woodruff refused to provide a specimen until he spoke with the Lieutenant, he interfered with the correctional officer as he attempted to perform his duties. Accordingly, the District Court properly determined that there was “some evidence” that Woodruff attempted to interfere with staff, most like refusing to provide a urine sample.
B. Special Management Unit Confinement
Woodruff claims that he was placed in the Special Management Unit in retaliation for filing administrative grievances and for racially motivated reasons. He further claims that he was denied adequate medical care for asthma while housed in the unit. We agree with the District Court that these claims are challenges to the conditions of Woodruffs confinement, rather than a challenge to the validity of his conviction or the length of his sentence. See Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.2002) (habeas relief is the appropriate remedy “where the deprivation of rights is such that it necessarily impacts the fact or length of detention”). *266We thus agree that these claims would be appropriately brought in an action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and that they are not cognizable in a habeas petition. See Leamer, 288 F.3d at 542-44.
C. Computation of Sentence
Woodruff claims that the Bureau of Prisons (“BOP”) miscalculated his sentence by denying him prior custody credit for time served in California state custody following a state parole revocation. He also argues that the BOP improperly disallowed good time credit following two disciplinary incidents in 1998, which occurred while he was in federal custody, but prior to sentencing. Finally, he contends that his good time credits earned prior to 2005 were “vested” and irrevocable. He asserts that a proper calculation of his sentence would result in his immediate release, and he seeks monetary damages.
When Woodruff was sentenced on July 14, 1998, the sentencing court directed that he was not to receive credit for time in state custody on a parole hold. He received credit for the period that began when his sentence for a California state parole violation ended and ended when he was sentenced for his federal conviction. The District Court correctly rejected Woodruffs claim relating to prior custody credit. Pursuant to 18 U.S.C. § 3585(b), Woodruff is not entitled to credit for time spent in state custody prior to his federal sentence that was credited to his state sentence. See Vega, 493 F.3d at 314 (time credited against a state parole violation sentence is not properly credited toward a federal sentence).
Woodruff next claims that he is entitled to credit restoration because he was sentenced under the Sentencing Reform Act (“SRA”). The District Court found that Woodruffs offense was committed while the SRA was in effect. Under the SRA, Woodruff is eligible to receive fifty-four days of good time credit per year, awarded at the end of each year on his “anniversary date.” See 18 U.S.C. § 3624(b) (1991). The BOP has fifteen days from the anniversary date to subtract good time credits as the result of disciplinary proceedings and award the remainder days, which then vest. Id. Once good time credits have vested, they may be withdrawn only under very limited circumstances. Id. The District Court examined each disciplinary incident for which the BOP disallowed Woodruff good time credits, and correctly determined that in each case, the good time credits were denied in the appropriate year and no vested credits were disallowed. In Woodruffs July 2005 to July 2006 term, the BOP imposed eighty-one days of good time credit loss as the result of disciplinary violations, but disallowed only the maximum fifty-four days at the end of that term. Accordingly, the District Court properly concluded that Wood-ruff is not entitled to any credit restoration.
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cm. I.O.P. 10.6.
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Aaron C. Boring and Christine Boring appeal from an order of the United States District Court for the Western District of Pennsylvania dismissing their complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we affirm in part and reverse in part.
I. Background
On April 2, 2008, the Borings commenced an action in the Court of Common Pleas of Allegheny County, Pennsylvania against Google, Inc., asserting claims for invasion of privacy, trespass, injunctive relief, negligence, and conversion. The Bor-.ings sought compensatory, incidental, and consequential damages in excess of $25,000 for each claim, plus punitive damages and attorney’s fees.
The Borings’ claims arise from Google’s “Street View” program, a feature on Google Maps1 that offers free access on the Internet to panoramic, navigable views of streets in and around major cities across the United States. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street. According to Google, “[t]he scope of Street View is public roads.” (Appellee’s Ans. Br. at 10.) Google allows individuals to report and request the removal of inappropriate images that they find on Street View.
The Borings, who live on a private road in Pittsburgh, discovered that Google had taken “colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization.” (App. at A81.) They allege that their road is clearly marked with a “Private Road, No Trespassing” sign (Appellants’ Op. Br. at 11), and they contend that, in driving up their road to take photographs for Street View and in making those photographs available to the public, Google “disregarded [their] privacy interest.” (Id.)
On May 21, 2008, Google invoked diversity jurisdiction, removed the action to the United States District Court for the Western District of Pennsylvania, and filed a motion to dismiss. The Borings then filed an amended complaint, substituting a claim for unjust enrichment for their earli*277er conversion claim.2 On August 14, 2008, Google again moved to dismiss the Borings’ complaint for failure to state a claim.
On February 17, 2009, the District Court granted Google’s motion to dismiss as to all of the Borings’ claims. The Court dismissed the invasion of privacy claim because the Borings were unable to show that Google’s conduct was highly offensive to a person of ordinary sensibilities. Boring v. Google, Inc., 598 F.Supp.2d 695, 699-700 (W.D.Pa.2009). The Court dismissed the negligence claim because it found that Google did not owe a duty to the Borings. Id. at 701. In dismissing the trespass claim, the Court held that “the Borings have not alleged facts sufficient to establish that they suffered any damages caused by the alleged trespass.” Id. at 702. The Court found the unjust enrichment claim wanting because the parties had no relationship that could be construed as contractual and the Borings did not confer anything of value upon Google. Id. at 703. The Court also held that the Borings had failed to plead a plausible claim for injunctive relief under Pennsylvania’s “demanding” standard for a mandatory injunction, and dismissed the punitive damages claim because the Borings failed to “allege facts sufficient to support the contention that Google engaged in outrageous conduct.” Id. at 701 n. 3, 704. In sum, the Court concluded that the Borings “failed to state a claim under any count” and that “any attempted amendment would be futile.” Id. at 698, 704 n. 8.
The Borings moved for reconsideration, asserting that it was error to dismiss their trespass and unjust enrichment claims, as well as their request for punitive damages. The District Court denied the motion. Boring v. Google, Civ. A. No. 08-694, 2009 WL 931181 (W.D.Pa. Apr. 6, 2009). The Court again said that the Borings had failed to allege conduct necessary to support a punitive damages award. 2009 WL 931181, at *2. It also declined to reconsider the dismissal of the unjust enrichment claim because the Borings did not point to any flaw in the Court’s disposition of that claim. Id. Finally, the Court addressed the Borings’ trespass claim only to “eliminate any possibility that the language in [its opinion] might be read to suggest that damages are part of a prima facie case for trespass.” Id., at *1. To clarify, the Court explained that it had dismissed the trespass claim because the Borings had “failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of the trespass” and because they failed to request nominal damages in their complaint. Id., at *1.
The Borings filed a timely notice of appeal from both the District Court’s order granting the motion to dismiss and the subsequent denial of their motion for reconsideration.
II. Discussion3
A. Standard of Review
We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid *278dismissal, the complaint must set forth facts that raise a “plausible inference” that the defendant inflicted a legally cognizable harm upon the plaintiff. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1952, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (explaining that a plaintiff must “identify!] facts that are suggestive enough to render [his claim] plausible”); Phillips, 515 F.3d at 234 (stating that “a plaintiff must ‘nudge [his or her] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss”) (citations omitted). Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”). We must disregard “formulaic recitation of the elements of a cause of action....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). Legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papas an v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (cited with approval in Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950. In short, when the well-pleaded complaint does not permit us “to infer more than the mere possibility of misconduct,” the pleader is not entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949).
On appeal, the Borings contend that the District Court erred in dismissing their invasion of privacy, trespass, unjust enrichment, and punitive damages claims, as well as their request for injunctive relief. We address each claim in turn.
B. Invasion of Privacy
Pennsylvania law recognizes four torts under the umbrella of invasion of privacy: “[1] unreasonable intrusion upon the seclusion of another; [2] appropriation of another’s name or likeness; [3] unreasonable publicity given to another’s private life; and [4] publicity that unreasonably places the other in a false light before the public.” See Burger v. Blair Med. Assocs., Inc., 600 Pa. 194, 964 A.2d 374, 376-77 (2009) (citing Restatement (Second) of ToRts §§ 652B-E (1977)). The District Court treated the Borings’ complaint as asserting claims for both intrusion upon seclusion and publicity to private life, and it held that the complaint failed to state a claim for either, focusing on the lack of facts in the complaint to support a conclusion that the Street View images would be highly offensive to a reasonable person. The Borings contend that the District Court was wrong to decide, on a 12(b)(6) motion to dismiss, that “a reasonable person would not be highly offended” after having discovered, as the Borings did, that someone “entered onto secluded private property [and] took 360 [degree] pictures .... ” (Appellants’ Op Br. at 19.)
i. Intrusion upon Seclusion
To state a claim for intrusion upon seclusion, plaintiffs must allege conduct *279demonstrating “an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and aver sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.” Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (2002) (citations omitted). Publication is not an element of the claim, and thus we must examine the harm caused by the intrusion itself. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir.1992).
No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there. The Restatement cites knocking on the door of a private residence as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. See Restatement (Second) of ToRts, § 652B cmt. d. The Borings’ claim is pinned to an arguably less intrusive event than a door knock. Indeed, the privacy allegedly intruded upon was the external view of the Borings’ house, garage, and pool — a view that would be seen by any person who entered onto their driveway, including a visitor or a delivery man. Thus, what really seems to be at the heart of the complaint is not Google’s fleeting presence in the driveway, but the photographic image captured at that time. The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive.4
Significantly, the Borings do not allege that they themselves were viewed inside their home, which is a relevant factor in analyzing intrusion upon seclusion claims. See, e.g., Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875, at *26 (W.D.Pa. Mar. 24, 2008) (holding that no reasonable person would find the fact that defendant entered into plaintiffs condominium to speak with a third party highly offensive because plaintiff was not in the condominium at the time), aff'd, 310 Fed.Appx. 526 (3d Cir.2009); GTE Mobilnet of S. Texas Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 618 (Tex.App.2001) (finding that “the mere fact that maintenance workers ... look[ed] over into the adjoining yard is legally insufficient evidence of highly offensive conduct.”).
The Borings suggest that the District Court erred in determining what would be highly offensive to a person of ordinary sensibilities at the pleading stage, but they do not cite to any authority for this proposition. Courts do in fact, decide the “highly offensive” issue as a matter of law at the pleading stage when appropriate. See, e.g., Diaz v. D.L. Recovery Corp., 486 F.Supp.2d 474, 475-480 (E.D.Pa.2007) (denying defendant’s motion to dismiss as to plaintiffs invasion of privacy claim because allegations that debt collector called debtor at her home stating he would “repossess all of her household belongings and even her car” stated a claim for invasion of privacy). The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google’s conduct in light of the Borings’ public filing of the present lawsuit. However, the District Court’s comments came after the Court had already concluded that Google’s conduct would not be highly offensive to a person of ordinary sensibilities. Thus, the Court *280properly applied an objective standard in deciding whether the conduct was highly offensive.5
In sum, accepting the Borings’ allegations as true, their claim for intrusion upon seclusion fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
ii. Publicity Given to Private Life
To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is “(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.” Harris by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 483 A.2d 1377, 1384 (1984) (citing Restatement (Second) of Torts § 652D). For the reasons just described with respect to the intrusion upon seclusion claim, we agree with the District Court that the Borings have failed to allege facts sufficient to establish the third element of a publicity to private life claim, i.e., that the publicity would be highly offensive to a reasonable person. It is therefore unnecessary to address the other three prongs.6
In conclusion, accepting the Borings’ allegations as true, their claim for publicity given to private life fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
C. Trespass
The District Court dismissed the Bor-ings’ trespass claim, holding that trespass was not the proximate cause of any compensatory damages sought in the complaint and that, while nominal damages are generally available in a trespass claim, the Borings did not seek nominal damages in their complaint. While the District Court’s evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous.
Trespass is a strict liability tort, “both exceptionally simple and exceptionally rigorous.” Prosser on Torts at 63 (West, 4th ed.1971). Under Pennsylvania law, it is defined as an “unprivileged, intentional intrusion upon land in possession of another.” Graham Oil Co. v. BP Oil Co., 885 F.Supp. 716, 725 (W.D.Pa.1994) (citing Kopka v. Bell Tel. Co., 371 Pa. 444, 91 A.2d 232, 235 (1952)). Though claiming not to have done so, it appears that the District Court effectively made damages an element of the claim, and that is problematic, since “[o]ne who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.” *281Restatement (Second) Torts § 163; see also Corr. Med. Care, Inc. v. Gray, Civ. A. No. 07-2840, 2008 WL 248977, *11 (E.D.Pa. Jan. 30, 2008) (holding that a complaint alleging that defendants entered into plaintiffs’ home on specified dates was “sufficient to survive a motion to dismiss under Pennsylvania trespass law.”).
Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential.7 Cf. 1 Stein on Personal Injury Damages § 1.3 (3d ed.2009) (“harm is not a prerequisite to a cause of action [for trespass,] and nominal damages can be awarded [even though] there has been and will be no substantial harm.”); 75 Am.Jur.2d Trespass § 112 (2009) (“[I]n the absence of proven or actual damages, plaintiffs are entitled to nominal damages in an action for trespass.” (citations omitted)). It was thus improper for the District Court to dismiss the trespass claim for failure to state a claim. Of course, it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.8 For now, it is enough to note that they “bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage” C & K Coal Co. v. United Mine Workers of Am., 537 F.Supp. 480, 511 (W.D.Pa.1982), rev’d in part on other grounds, 704 F.2d 690, 699 (3d Cir.1983), if they want more than a dollar.
D. Unjust Enrichment
To succeed on a claim of unjust enrichment, a plaintiff must allege facts sufficient to establish “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Lackner v. Glosser, 892 A.2d 21, 34 (Pa.Super.Ct.2006) (quotation omitted). Typically, with an unjust enrichment claim, a “plaintiff seeks to recover from defendant for a benefit conferred under an unconsummated or void contact,” and the law then implies a quasi-contract which requires the defendant to compensate the plaintiff for the value of the benefit conferred. See Steamfitters Local Union No. 4-20 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir.1999) (citations omitted); Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 998-99 (3d Cir.1987).
The District Court dismissed the Bor-ings’ unjust enrichment claim after finding that they had not alleged any relationship *282between themselves and Google that could be construed as contractual, and because “it cannot be fairly said that the Borings conferred anything of value upon Google.” (App. at A12-A13.) The Court further held that the unjust enrichment claim failed because the Borings had not adequately alleged any other tort, and Pennsylvania does not recognize unjust enrichment as a stand-alone tort.
We agree that the facts alleged by the Borings provide no basis for an unjust enrichment claim against Google. The complaint not only fails to allege a void or unconsummated contract, it does not allege any benefit conferred upon Google by the Borings, let alone a benefit for which the Borings could reasonably expect to be compensated. The complaint alleges that Google committed various torts when it took photographs of the Borings’ property without their consent. The complaint does not allege, however, that the Borings gave or that Google took anything that would enrich Google at the Borings’ expense. An unjust enrichment “claim makes sense in cases involving a contract or a quasi-contract, but not, as here, where plaintiffs are claiming damages for torts committed against them by [the] defendant ].”9 Romy v. Burke, No. 1236, 2003 WL 21205975, at *5 (Pa. Com. Pl. Philadelphia May 2, 2003).
E. Injunctive Relief
Pennsylvania law provides that in order to establish the right to injunctive relief, a plaintiff must “establish that his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested.” Kuznik v. Westmoreland County Bd. of Comm’rs, 588 Pa. 95, 902 A.2d 476, 489 (2006) (citing Harding v. Stickman, 823 A.2d 1110, 1111 (Pa.Commw.Ct.2003)). An injunction is an extraordinary remedy. See Ambrogi v. Reber, 932 A.2d 969, 974 (Pa.Super.Ct.2007).
The District Court held that the complaint failed to set out facts supporting a plausible claim of entitlement to injunctive relief. We agree that the Borings have not alleged any claim warranting injunctive relief. The complaint claims nothing more than a single, brief entry by Google onto the Borings’ property. Importantly, the Borings do not allege any facts to suggest injury resulting from Google’s retention of the photographs at issue, which is unsurprising since we are told that the allegedly offending images have long since been removed from the Street View program.
F. Punitive Damages
Pennsylvania law provides that a defendant must have engaged in “outrageous” or “intentional, reckless or malicious” conduct to sustain a claim for punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747-48 (1984). Indeed, “punitive damages cannot be based upon ordinary negligence.” Hutchinson ex rel. Hutchinson v. Buddy, 946 A.2d 744, 747 (Pa.Super.Ct.2008).
*283The Borings’ complaint fails to allege conduct that is outrageous or malicious. There is no allegation that Google intentionally sent its driver onto their property or that Google was even aware that its driver had entered onto the property. Moreover, there are no facts suggesting that Google acted maliciously or recklessly or that Google intentionally disregarded the Borings’ rights.
The Borings argue that a claim for punitive damages must always be determined by a jury, after discovery. But courts do indeed dismiss claims for punitive damages in advance of trial. See Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445, 447 (2005) (reversing a denial of summary judgment as to a punitive damages claim because “[a] showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed”); Feld, 485 A.2d at 748 (holding that submission of punitive damages issue to jury was error).10 And, under the pleading standards we are bound to apply, there is simply no foundation in the complaint for a demand for punitive damages. Cf. Iqbal, 129 S.Ct. at 1950 (explaining that while a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct”); Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (explaining that a plaintiff must “identify[ ] facts that are suggestive enough to render [his claim] plausible”).
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of Google’s motion to dismiss the Borings’ claims for invasion of privacy, unjust enrichment, in-junctive relief, and punitive damages. We reverse, however, with respect to the trespass claim, and remand with instructions that the District Court permit that claim to go forward.
. Google Maps is a service offered by Google that “gives users the ability to look up addresses, search for businesses, and get point-to-point driving directions — all plotted on interactive street maps....” (App. at A5.)
. For ease of reference, the amended complaint is referred to herein simply as the "complaint.”
. Google timely removed the action to the District Court pursuant to 29 U.S.C. §§ 1441 and 1446. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction over the final orders of the District Court under 28 U.S.C. § 1291.
. Though not pertinent to our decision, we note Google's assertion, which is not seriously contested by the Borings, that the Street View photograph is similar to a view of the Bor-ings' house that was once publicly available online through the County Assessor’s website.
. Google spends much time arguing that the Borings' driveway was not actually a private place sufficient to sustain an invasion of privacy claim. It notes that numerous courts have found no intrusion upon seclusion based upon a view that can be seen from the outside of the home, and points to the fact that images of the Borings' home were already available on the Internet. Because we conclude that the alleged conduct would not be highly offensive to a person of ordinary sensibilities, we need not decide whether the Borings’ driveway was a "private place" for purposes of an invasion of privacy claim.
. We note, however, that the facts revealed may not actually be “private facts,” as required by prong 2, because the Borings’ property allegedly is or recently was available to public view by virtue of tax records and maps on other Internet sites. See Strickland v. Univ. of Scranton, 700 A.2d 979, 987 (Pa.Super.Ct.1997) (explaining that "a matter which was of public record [was] not a private fact").
. The District Court cited to a single case from 1899 to support its claim that plaintiffs in a trespass case are required to plead nominal damages. However, the case it cited was not a trespass case. See Morris & Essex Mut. Coal Co. v. Del., L. & W.R. Co., 190 Pa. 448, 42 A. 883, 884 (1899). In fact, that case is expressly inapplicable to this case. See id. (“The whole proceeding was to recover damages based, not upon a wrongful invasion of plaintiff's [property] rights, but upon an act of assembly which authorized the taking of the property.”). Similarly, none of the cases cited by Google in its brief are trespass cases. In fact, Google itself indicates the possibility that we may have to remand the case to proceed with a nominal damages trespass claim. While it may be true that for some claims, the failure to seek nominal damages waives a claim for nominal damages, that is not the case with trespass claims.
. We imply nothing about whether the claim would survive summary judgment, either as to liability or damages, or about the limits on proof that may be appropriate.
. Because we find that the Borings stated a claim for trespass (see supra, Section Il.C.ii) and thus survived a 12(b)(6) motion to dismiss as to that claim, we need not address whether unjust enrichment is a stand-alone tort under Pennsylvania law. Instead, we hold that the Borings have failed to state a claim for unjust enrichment, regardless of whether it is a stand-alone tort, because they have failed to allege facts sufficient to establish a benefit conferred upon Google by the Borings. Thus, on remand, the Borings are not entitled to recover under their unjust enrichment claim.
. Appellants rely on two cases to argue that punitive damages must always be determined by a jury after discovery: Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989), and Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.2d 154 (1997). Kirkbride addressed whether a punitive damages award must bear a reasonable relationship to the compensatory award, rather than addressing what kind of conduct must be alleged in order to survive a 12(b)(6) motion to dismiss on a punitive damages claim. 555 A.2d at 801. The Jacque case, in addition to having no binding authority on our Court, addressed whether a punitive damages claim may be awarded in connection with a trespass claim, where nominal damages had been awarded and the trespass was committed "for an outrageous purpose but no significant harm resulted." 563 N.W.2d at 161. Thus, that court did not hold that the issue of punitive damages must always go to the jury.
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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/8476929/
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OPINION
AMBRO, Circuit Judge.
Ahmed Joaquin pled guilty in the District of New Jersey to possession of a firearm by a convicted felon and was sentenced to 96 months’ imprisonment, to run consecutively to an undischarged sentence on drug charges in state court. He now appeals that sentence as procedurally and substantively unreasonable. We disagree, and thus affirm.1
I.
In July 2007, two Newark police officers in plainclothes observed Joaquin running from a group of uniformed police officers who had responded to a report of a stolen vehicle near a public housing complex. The officers stopped and frisked Joaquin and discovered a loaded .32 caliber pistol in his pocket. The officers arrested Joaquin and during a search of his person discovered two “decks” of heroin and a vial of cocaine.
Joaquin was initially charged with drug and firearm offenses in New Jersey state court. The United States Attorney’s Office for the District of New Jersey then adopted the case for federal prosecution.2 In January 2008, a federal grand jury returned an indictment charging Joaquin with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pled guilty to this offense in June 2008.
Joaquin was sentenced in December 2008. The United States Probation Office determined that his total offense level was 25, which included a four-level upward adjustment because Joaquin possessed a firearm in connection with a drug-trafficking *291offense. U.S.S.G. § 2K2.1(b)(6). His criminal history category was VI, with a resulting Guideline range of 110 to 120 months’ imprisonment. At sentencing, Joaquin argued, among other things, that (1) the § 2K2.1(b)(6) enhancement was improper because he had not been engaged in a drug transaction when he was stopped by police; and (2) his criminal history category of VI overstated the seriousness of his criminal record, warranting a downward departure under U.S.S.G. § 4A1.3. The District Court agreed with Joaquin’s first argument and declined to apply the four-level enhancement. The Court rejected his second argument, finding that, “if anything, the criminal history category ... understate^] Mr. Joaquin’s [criminal] record.” 3
Joaquin’s adjusted offense level was 21, with a resulting Guideline range of 77 to 96 months’ imprisonment. At sentencing, he requested that the District Court sentence him at the bottom of the Guideline range. Joaquin also requested that his sentence run concurrently to a six-year sentence he was serving on drug-trafficking offenses brought in state court, which was imposed in December 2007 (shortly before he was indicted federally in January 2008).4 The District Court rejected Joaquin’s requests and sentenced him to 96 months’ imprisonment, to run consecutively to his undischarged state court sentence. Joaquin timely appealed.
II.
“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.
Where “a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). The district court must consider the 18 U.S.C. § 3553(a) factors when deciding whether to impose a concurrent or consecutive sentence. Id. § 3584(b). The policy statement in U.S.S.G. § 5G1.3(c) provides that a sentence may be imposed consecutively to an undischarged sentence “to achieve a reasonable punishment for the instant offense.”
III.
Joaquin contends that the District Court’s sentence was procedurally unrea*292sonable because the Court was “so overly preoccupied with the punitive aspects of sentencing” that it failed to consider mitigating factors demonstrating that a consecutive sentence was “greater than necessary” to achieve the sentencing objectives of 18 U.S.C. § 3553(a).
The record reveals otherwise. The District Court stated that it had “listened very carefully” to Joaquin’s arguments that a concurrent sentence was warranted in light of his underprivileged background, his brief employment after he was released from prison in 2004, and the fact that he had recently learned to read and write. The Court, however, was not persuaded that these factors outweighed the need for a consecutive sentence. See United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007) (a district court’s “failure to give mitigating factors the weight a defendant contends they deserve” does not render the sentence unreasonable).
The Court explained that Joaquin’s significant criminal record “indieate[d] that [he] indeed need[ed] to be deterred,” and that a lengthy sentence was required “to demonstrate to [him] that [his] ... felony weapons convictions, plus all of [his] prior drug convictions[,] are extraordinarily serious in our current environment.” See 18 U.S.C. §§ 3553(a)(2)(A), (B). The Court noted that Joaquin had received “relatively lenient sentences” for his past crimes, which included (1) five convictions for drug offenses for which Joaquin received terms of imprisonment with periods of parole ineligibility of one, two, or three years; (2) an arrest for assaulting the woman he was dating, for which he was permitted to plead guilty to a lesser offense and was fined $150; and (3) another arrest for assaulting the same person in violation of a restraining order, for which he was permitted to plead guilty to contempt of court and served 28 days in prison. Finally, the Court emphasized the need to deter others from engaging in similar conduct, and to protect the public from further crimes Joaquin might commit. See id. §§ 3553(a)(2)(B), (C).
Joaquin nonetheless complains that when he was sentenced on state drug charges in December 2007, he believed “there would be no federal charges” arising out of his July 2007 arrest.5 Joaquin represents that, had he known he would face such a federal charge, he would have attempted to delay his sentencing in state court until after his sentencing in federal court, thus avoiding the imposition of a consecutive federal sentence, as well as the three additional criminal history points that resulted from his state court conviction.6 He contends that the District Court committed procedural error by failing to consider the possibility that a consecutive sentence would create a “disparate sentencing situation between [ ] Joaquin and a similarly situated defendant,” as Joaquin now faces “a much longer sentence than someone who was able to resolve [both] offenses in a single jurisdiction, or someone who had been sentenced first at the federal level and thereafter received a concurrent sentence in state court.”
We disagree. 18 U.S.C. § 3553(a)(6) directs district courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See also U.S.S.G. § 5G1.3 cmt. n. 3(A) (district courts should consider whether a consecutive or concurrent sentence will “achieve a reasonable incremental punishment for the instant offense and *293avoid unwarranted disparity”). It is apparent that the District Court determined that any “disparity” resulting from the sequence of Joaquin’s state and federal court sentencings was not unwarranted in light of Joaquin’s criminal record. The Court noted that Joaquin had been jointly sentenced for four prior offenses and, as a result, had received a “package deal” that likely reduced his aggregate sentence for those offenses. The Court explained that a consecutive sentence was necessary in this case to impress upon Joaquin that there is “a point where courts will not give [him] package deals for all of [his] offenses simply as a matter of expediency.” In this context, we discern no procedural error in the Court’s decision to impose a consecutive sentence.
In sum, our review of the record confirms that the District Court gave “rational and meaningful” consideration to the relevant § 3553(a) factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc). We therefore conclude that the Court’s sentence was proeedurally reasonable.
IV.
Joaquin finally argues that the District Court’s imposition of a term of 96 months’ imprisonment — to run consecutively to his state court sentence of six years (with a parole ineligibility of three years) — resulted in an “overly punitive” and substantively unreasonable sentence. We conclude, however, that his sentence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008); see also Tomko, 562 F.3d at 568. Accordingly, we affirm his sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction tinder 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). "The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). We also review the District Court's decision to impose a consecutive sentence for abuse of discretion. United States v. Swan, 275 F.3d 272, 275 (3d Cir.2002).
. According to the Presentence Investigation Report, the stale charges were dismissed.
. Joaquin does not challenge on appeal the District Court’s denial of a downward departure under § 4A1.3.
. According to the Presentence Investigation Report, these charges arose from Joaquin's May 2006 arrest for selling heroin and crack cocaine in Newark.
. Joaquin has not identified the basis for his belief that he would not be charged federally.
. Even without those additional criminal history points, Joaquin’s criminal history category would have remained VI.
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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/8476931/
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OPINION
AMBRO, Circuit Judge.
Arthur Garcia pled guilty to using a facility of interstate commerce to entice a minor to engage in sexual activity and traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with a minor. He was sentenced to 83 months’ imprisonment, and now appeals that sentence. We affirm.1
I.
In September 2003, Garcia, who was 56 years old and living in California at the *295time, began exchanging instant messages over the Internet with a 14-year-old girl living in Pennsylvania. During the course of their sexually explicit conversations, Garcia misrepresented both his identity and his age, and expressed his desire to travel to Pennsylvania to have sex with her.
In January 2004, Garcia flew to Pennsylvania, rented a ear, and drove to the victim’s school bus stop to meet her. Garcia gave her $100 and a cell phone that he used to communicate with her over the next week. Later that week, Garcia picked the victim up from her school bus stop and, posing as the girl’s father, called her school and reported that she would be absent from school that day. Garcia then took the victim to his hotel room, where he had sexual intercourse with her multiple times. Garcia dropped the victim off at a friend’s house the following day, and was arrested as he was returning his rental car at the airport.
In August 2005, Garcia pled guilty to one count of using a facility of interstate commerce to persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and one count of traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). With an offense level of 25 and a criminal history category of I, Garcia’s Guidelines range was 60 to 71 months’ imprisonment.2
In January 2006, the District Court sentenced Garcia to 100 months’ imprisonment after applying a four-level upward departure based on. “an aggravating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission” that took Garcia’s case out of the “heartland of typical cases.” *296United States v. Garcia, 225 Fed.Appx. 47, 49 (3d Cir.2007). In April 2007, we vacated that sentence and remanded for resentencing because the Court had applied an upward departure without notice to Garcia. Id.; see also Fed.R.Crim.P. 32(h).
On remand, the District Court imposed a twelve-month upward variance from the Guidelines range, and sentenced Garcia to 83 months’ imprisonment. He timely appealed.
II.
“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.
We do not “presume that a sentence is unreasonable simply because it falls outside the” Guidelines range. Id. at 567. Rather, “[w]here ... a distinct court decides to vary from the Guidelines’ recommendations, we ‘must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’ ” Id. at 561 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586).
III.
Garcia argues that the District Court’s sentence was procedurally unreasonable for two reasons: (1) the Court failed to take into account the period Garcia spent on home confinement while awaiting his sentencing; and (2) it relied on impermissible factors in imposing an upward variance. We address each argument in turn.
Garcia first argues that the District Court failed to consider that he had been under home confinement for 14 months prior to his sentencing, which involved “severe restrictions on his freedom” that weighed in favor of a within-Guidelines sentence.3 We disagree. The record confirms that the Court considered this argument, which Garcia made both in his sentencing memorandum and during argument immediately before the Court imposed its sentence. That the Court did not specifically mention Garcia’s home confinement in explaining the reasons for its sentence does not make that sentence procedurally unreasonable. See Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (explaining that a brief statement of reasons can be sufficient where a district court is presented with “straightforward, conceptually simple arguments”).
*297Garcia next argues that the District Court impermissibly considered his age, education, marital status, and number of children in imposing its sentence. In support, he relies on a single sentence from the Court’s lengthy statement of reasons, where it described Garcia as “an educated, married, 56-year-old man with four children” who had engaged in “extensive predatory conduct” and had exercised “extreme influence” over a 14-year-old child.
We discern no procedural error. The District Court was simply describing “the nature and circumstances of the offense and the history and characteristics of the defendant,” factors which it was required to consider.4 18 U.S.C. § 8553(a)(1). In particular, we believe it was appropriate for the Court to comment on Garcia’s age and education level in explaining why his “grooming and cultivation of the victim” was “particularly troubling” and warranted a sentence above the Guidelines range.5
In sum, our review of the record confirms that the District Court gave “rational and meaningful” consideration to the relevant § 3553(a) factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en bane). Accordingly, we affirm that sentence.6
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries" discussed below. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc).
. Using the 2003 edition of the Guidelines, the United States Probation Office initially calculated Garcia's offense level under U.S.S.G. § 2G1.1(c)(2), which applies if the "offense involved criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse,” because the victim reported that Garcia pulled her back onto the bed when she tried to leave and held her down while he had intercourse with her. Section 2G1.1 (c)(2) references § 2A3.1 ("Criminal Sexual Abuse”), which provides for a base offense level of 27. Id. § 2A3.1(a). Probation also applied (1) a four-level increase because “the offense was committed by the means set forth in 18 U.S.C. § 2241(a) or (b),” which include "knowingly causing] another person to engage in a sexual act ... by using force against that [ ] person," 18 U.S.C. § 2241(a)(1); (2) a two-level increase because the victim was between 12 and 16 years old; and (3) a two-level increase because Garcia knowingly misrepresented his identity and used a computer to persuade, induce, entice, or coerce the victim to engage in prohibited sexual conduct. U.S.S.G. §§ 2A3.1(b)(1), (2), (6). Accordingly, Probation determined that Garcia’s offense level was 32 (after a three-level decrease for acceptance of responsibility, id. § 3E1.1). With a criminal history category of I, Garcia's resulting Guidelines range was 121 to 151 months' imprisonment.
At sentencing, Garcia disputed that he had forcible sex with the victim, and accordingly argued that application of § 2A3.1 was inappropriate. The District Court found that the Government had not proven that Garcia engaged in forcible sex with the victim by a preponderance of the evidence. As a result of the Court’s finding, Garcia’s offense level was recalculated under § 2A3.2 ("Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape)”), resulting in a base offense level of 24, id. § 2A3.2(a)(l), and a four-level total increase because Garcia knowingly misrepresented his identity and used a computer to persuade the victim to engage in prohibited sexual conduct. Id. §§ 2A3.2(b)(2), (3). After the three-level decrease for acceptance of responsibility, Garcia's resulting offense level was 25, with a Guidelines range of 57 to 71 months’ imprisonment. Because Count One carried a mandatory minimttm term of 5 years' imprisonment, Garcia's Guidelines range became 60 to 71 months' imprisonment.
. Garcia concedes that he is not statutorily entitled to credit for the period he spent under home confinement. See Reno v. Koray, 515 U.S. 50, 57, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (‘‘[U]nder the language of the Bail Reform Act of 1984, a defendant suffers ‘detention’ only when committed to the custody of the Attorney General; a defendant admitted to bail on restrictive conditions ... is ‘released.’ ”).
. Although the Guidelines provide that certain factors — including a defendant's age, education, and vocational skills — are "not ordinarily relevant in determining whether a departure is warranted," U.S.S.G. §§ 5H1.1, 5H1.2 (emphasis added), the District Court imposed an upward variance in imposing the sentence, not an upward departure in calculating the Guidelines range.
. Garcia also appears to argue that the District Court's emphasis on the influence he exercised over the victim was impermissible because that influence was the basis for a two-level increase in his offense level. See U.S.S.G. § 2A3.2(b)(2). For the same reasons, the Court did not err by considering this fact in imposing an upward variance.
.To the extent Garcia challenges the substantive reasonableness of his sentence, we reject that challenge as well, as we cannot say that "no reasonable sentencing court would have imposed the same sentence on th[is] particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
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01-04-2023
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11-05-2022
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OPINION
AMBRO, Circuit Judge.
In this action to quiet title, Moco Investments, Inc. appeals the District Court’s entry of judgment in favor of the United States. We affirm.1
I.
The relevant facts are undisputed. In March 2003, the Internal Revenue Service (“IRS”) assessed taxes against Chad and Nadine Bacek for the 2001 tax year. Additionally, the IRS assessed taxes against Chad Bacek in May 2004 and May 2005 for the 2003 and 2004 tax years, respectively. On May 31, 2005, Moco Investments, Inc. (“Moco”), a New Jersey limited liability company, acquired from the Baceks a parcel of real property located in Middlesex County. However, Moco did not immediately record its deed. In December 2005, the IRS recorded the notice of a federal tax lien (in the amount of approximately $10,000) against the property the Baceks had conveyed to Moco. Moco recorded its deed to the property shortly thereafter, in January 2006.
Moco sought to have the tax lien released, and in August 2006 filed suit in the District Court for the District of New Jersey against the United States, the IRS,2 and the Baceks.3 In December 2006, the Government moved for judgment on the pleadings. Moco opposed the Government’s motion, and separately moved for summary judgment. In January 2008, the District Court granted the Government’s motion and denied that of Moco, which has timely appealed.4
*308II.
“If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount ... shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U.S.C. § 6321. Such a tax lien arises at the time the tax is assessed. See 26 U.S.C. § 6322; In re DeAngelis, 373 F.2d 755, 757 (3d Cir.1967) (“[N]on-payment of taxes after demand creates a lien commencing at the assessment date”).
Here, a tax lien “upon all [of the Baeeks’] property ..., whether real or personal,” arose when the IRS assessed taxes against the Baeeks in March 2003, May 2004, and May 2005 — before the Baceks conveyed the property to Moco. 26 U.S.C. § 6321. Accordingly, the transfer of the property to Moco did not affect the lien because it arose before the transfer. See United States v. Bess, 357 U.S. 51, 57, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958) (internal quotation marks omitted) (as a general matter, “[t]he transfer of property subsequent to the attachment of [a]lien does not affect the lien, for it is of the very nature and essence of a lien[ ] that no matter into whose hands the property goes, it passes cum onere [in effect, with the burden of the lien]”); see also United States v. Avila, 88 F.3d 229, 233 (3d Cir.1996).
An exception to this rule appears in 26 U.S.C. § 6323, which provides that a federal tax lien is not valid “against any purchaser ... until notice [of the lien] ... has been filed by the Secretary.” Id. § 6323(a) (emphasis added). A “purchaser” is defined as a “person who, for adequate and full consideration ..., acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice.” Id. § 6323(h)(6). *309Accordingly, the IRS lien is not valid against Moco if, before the IRS filed notice of the lien, Moco qualified “under [New Jersey] law [as a] subsequent purchased ] without actual notice.” Id.
We agree with the District Court that the tax lien is valid against the property now owned by Moco because it recorded its deed too late. New Jersey is a “race-notice” jurisdiction, meaning that, “as between two competing parties[,] the interest of the party who first records the instrument will prevail.” Cox v. RKA Corp., 164 N.J. 487, 758 A.2d 1112, 1116-17 (2000)(citing N.J. Stat. Ann. §§ 46:21-1, 46:22-1). Under this framework, Moco’s interest in the property became valid against subsequent purchasers when it recorded its deed. However, Moco did not record its deed until January 2006, a month after the IRS recorded the tax hen. Accordingly, the lien was vahd against Moco because Moco was not a “purchaser” within the meaning of § 6823 when the IRS recorded its hen.
Moco nonetheless contends that the tax hen is not vahd because the Baceks “no longer had an interest” in the property when the IRS recorded the hen. Moco is mistaken. As noted, a federal tax hen arises at the time the tax is assessed, not when the hen is recorded. See 26 U.S.C. § 6322; In re DeAngelis, 373 F.2d at 757; see also United States v. V. & E Eng’g & Constr. Co., 819 F.2d 331, 335 (1st Cir.1987) (rejecting buyers’ arguments that tax hen on the purchased property “d[id] not exist until notice [was] filed,” and that “at the time of the notice there was no ‘property or right to property’ to which the hen could attach because [it] had already [been] sold”). Although Moco’s deed was immediately vahd as between Moco and the Baceks, it was not vahd against subsequent purchasers until it was recorded. See N.J. Stat. Ann. § 46:22-1 (“any ... deed ... shall be vahd and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees”) (emphasis added); see also H.K. v. State, 184 N.J. 367, 877 A.2d 1218, 1228 (2005) (“[A]n unrecorded deed is ‘perfectly efficacious in passing title from grantor to grantee, subject to all subsequent recorded hens against the grantor and subject to potential divestment by a subsequent bona fide grantee without notice.’ ”) (quoting Siligato v. State, 268 N.J.Super. 21, 632 A.2d 837, 840 (N.J.Super.Ct.App.Div.1993)).
In sum, Moco’s interest in the property was not' “vahd ... against [a] subsequent purchased ] without actual notice” until it recorded its deed in January 2006. 26 U.S.C. § 6323(h)(6). Thus, Moco was not a “purchaser” within the meaning of § 6323 when the IRS recorded its hen in December 2005. Accordingly, the tax hen is vahd against Moco.
Moco also contends that the District Court impermissibly “used federal law to create in the [Baceks] an interest in the [property].” We reject this argument as well. Although whether an interest in property “constitutes ‘property and rights to property5 for the purposes of ... 26 U.S.C. § 6321[ ] .... largely depends upon state law,” United States v. Craft, 535 U.S. 274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), it is undisputed that the Baceks had a vahd interest in the property when the tax assessment was made. In any event, the District Court correctly applied New Jersey law to determine when Moco became a “purchaser” within the meaning of 26 U.S.C. § 6323.
For these reasons, we affirm the District *310Court’s judgment.5
. Moco's Complaint is entitled: ‘‘Complaint to Compel Release of IRS Lien and for Damages.” Although the Complaint lacks a jurisdictional statement, it was properly treated as an action under 28 U.S.C. § 2410, which grants jurisdiction to district courts over ‘‘any civil action or suit” against the United States "to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.” Id. § 2410(a). We have appellate jurisdiction under 28 U.S.C. § 1291.
. Although Moco named the IRS as a defendant, the United States alone is the proper defendant in a suit under 28 U.S.C. § 2410.
. Though named as defendants, the Baceks were never served and did not enter their appearance in the District Court. While we generally lack jurisdiction to review orders that are not final as to all parties absent a certification by the District Court under Fed. R.Civ.P. 54(b), “a named defendant who has not been served is not a ‘party’ within the meaning of Rule 54(b)." Gomez v. Gov't of Virgin Islands, 882 F.2d 733, 736 (3d Cir.1989). Accordingly, the District Court’s order granting the Government's motion for judgment on the pleadings was final for purposes of 28 U.S.C. § 1291.
.As the Government points out, its motion for judgment on the pleadings should have been treated as a motion for summary judgment, as it (1) was filed before the Government answered the Complaint, and thus before the “pleadings [were] closed,” Fed. R.Civ.P. 12(c); and (2) included materials outside the pleadings — Certificates of Assessments and Payments for the Baceks’ 2001, 2003, and 2004 tax years, which established that taxes were assessed against the Baceks before they conveyed the property to Moco. Because the District Court did not exclude these materials in ruling on the Government’s motion, it effectively converted the motion to one for summary judgment. See Fed.R.Civ.P. 12(d); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.1989) (”[T]he label a district court places on its disposition is not binding on an *308appellate court.”); see also Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 284 (3d Cir.1991) (construing district court’s disposition as the entry of summary judgment, rather than a dismissal under Rule 12(b)(6), where the court did not exclude additional material attached to plaintiff’s motion to dismiss counterclaim). Having done so, the Court needed to give the parties notice of the conversion to a motion for summary judgment. See Rose, 871 F.2d at 342.
Moco does not discuss in its brief the District Court's treatment of the Government's motion; accordingly, it has waived any challenge to the Court’s conversion. See Laborers' Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994). In any event, Moco does not dispute the authenticity of the Certificates of Assessments and Payments attached to the Government's motion, nor does it contend that it was denied a " 'reasonable opportunity’ to present all material relevant to a summary judgment motion." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 288 (3d Cir.1999) (quoting Fed.R.Civ.P. 12(d)). Indeed, in its motion for summary judgment (filed before Moco responded to the Government's motion for judgment on the pleadings), Moco asserted that the “facts [were] undisputed,” and attached no additional materials or affidavits in support of its motion. Accordingly, we conclude that the failure to provide notice of the summary judgment conversion was harmless. See Rose, 871 F.2d at 342 (the failure to provide proper notice does not require reversal where the error is harmless); accord In re Rockefeller, 184 F.3d at 288.
Having determined that the District Court converted the Government’s motion to a motion for summary judgment, we exercise plenary review over its grant of summary judgment, applying the same standard that a district court must apply. See Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007). We view the facts in the light most favorable to the nonmoving party. Id., Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). A party is entitled to summary judgment only “if the pleadings, the discovery and disclosure materials on file, and any affidavits^] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
. Though not in play because it lost, had Moco won it sought punitive damages from the United States. We point out that Moco could not have been awarded punitive damages against the United States. See 28 U.S.C. § 2674.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476939/
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Asch Webhosting, Inc. (“Asch”), filed this civil action against Adelphia Business Solutions Investment LLC, doing business as Telcove (“Tel-cove”), alleging breach of contract, breach of the covenant of good faith and fair dealing, and intentional interference with contractual relations. Asch appeals the order of the District Court granting summary judgment in favor of Telcove.
Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm essentially for the reasons stated by the District Court.
I.
Telcove is an internet service provider (“ISP”), which purchases capacity from “upstream” providers of internet services and sells that capacity to smaller ISPs “downstream,” like Asch. Telcove and Asch entered into a three-year agreement (“Agreement”) under which Telcove agreed to provide internet services to Asch. Shortly after activating Asch’s internet service in February 2004, Telcove began receiving complaints about emails sent from internet protocol (“IP”) addresses associated with Asch. Telcove eventually received nearly fifteen hundred complaints about emails sent from these IP addresses. In addition, one of Telcove’s upstream providers notified Telcove that it risked losing its internet service because of the content of an email sent from an IP address associated with Asch. On April 28, 2004, Telcove informed Asch by letter that it was terminating its internet service on April 30, 2004. The letter notified Asch that the Agreement was being terminated in accordance with sections (b) and (g) of the Acceptable Use Policy set forth in the Agreement. However, after a discussion between counsel, Telcove agreed to continue providing internet service to Asch so that it would have time to procure internet services from another provider. On June 10, 2004, Telcove stopped providing internet service to Asch.
Asch did not reach agreement with another internet provider and ceased operations. Asch then initiated this civil action against Telcove. Telcove moved for summary judgment on these claims, arguing that an exculpatory clause in the Agreement prevented Asch from recovering the damages it sought. The District Court granted summary judgment in favor of *312Telcove and subsequently denied Asch’s motion for reconsideration. Asch filed a timely appeal.
II.
The District Court granted summary judgment in favor of Telcove, concluding that Asch’s claim for damages was precluded by the exculpatory clause included in the Agreement between the parties and that the exculpatory clause was enforceable. Under New Jersey law, exculpatory clauses in private contracts are “generally sustained so long as they do not adversely affect the public interest.” Chem. Bank of N.J. Nat’l Ass’n v. Bailey, 296 N.J.Super. 515, 687 A.2d 316, 322 (N.J.Super.1997).1 They are ordinarily upheld in the commercial context because “[t]he judiciary will not undertake the writing of a different or better contract between the parties.” See id. (quoting Swisscraft Novelty Co. v. Alad Realty Corp., 113 N.J.Super. 416, 274 A.2d 59, 62 (N.J.Super.1971)). Thus, an exculpatory clause will be enforced if “1) it does not adversely affect the public interest; 2) the exculpated party is not under a legal duty to perform; 3) it does not involve a public utility or common carrier; or 4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.” Gershon v. Regency Diving Ctr., Inc., 368 N.J.Super. 237, 845 A.2d 720, 727 (N.J.Super.2004). Asch argues that the first and fourth exceptions apply to the exculpatory clause at issue here.
The exculpatory clause at issue states as follows:
W arranties/Disclaimers
TELCOVE’S INTERNET SERVICE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS UNLESS STATED OTHERWISE IN THE TELCOVE’S SERVICE LEVEL AGREEMENT (SLA). NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO TELCOVE’S INTERNET SERVICES(S) OR ANY INFORMATION OR SOFTWARE THEREIN. CUSTOMER RELEASES TELCOVE FROM ALL LIABILITY OR RESPONSIBILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES DUE TO LOSS OF REVENUES OR LOSS OF BUSINESS, SUFFERED BY CUSTOMER IN CONNECTION WITH THEIR USE OF OR INABILITY TO USE THE TELCOVE INTERNET SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TELCOVE DISCLAIMS TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW ANY RESPONSIBILITY FOR (AND UNDER NO CIRCUMSTANCES SHALL BE LIABLE FOR) ANY CONDUCT, CONTENT, GOODS AND SERVICES AVAILABLE ON OR THROUGH THE INTERNET OR TELCOVE SERVICES. IN NO EVENT SHALL TELCOVE’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER TO TELCOVE FOR THE TELCOVE SERVICES. USE OF ANY INFORMATION OBTAINED VIA TELCOVE’S INTERNET SERVICE IS AT THE CUSTOMER’S OWN RISK. TELCOVE SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF THE IN*313FORMATION OBTAINED THROUGH ITS SERVICES.
[PA 56] (emphasis in original).
In this litigation, Asch argued that Tel-cove’s termination of the Agreement destroyed its business. Accordingly, as damages, it sought the fair market value of its business, allegedly $1.43 million, in consequential damages. If the exculpatory clause is enforceable, by its terms it relieves Telcove of any liability for the damages Asch seeks because Asch agreed to release Telcove from “all liability or responsibility for any direct, indirect, incidental or consequential damages .... suffered by [Asch] in connection with [its] use of or inability to use the Telcove internet services.” Id. (emphasis added). Thus, the District Court correctly concluded that the exculpatory clause, if enforceable, barred Asch from recovering the damages it sought in this action.2
The District Court also determined that the exculpatory clause was enforceable under New Jersey law because enforcement of the clause was neither adverse to the public interest nor unconscionable. We agree with both of these conclusions.
On appeal, Asch argues that the District Court erred by concluding that enforcing the clause would not adversely affect the public interest. Asch contends that a willful and predatory breach of contract would be contrary to the public interest. Cf. Lucier v. Williams, 366 N.J.Super. 485, 841 A.2d 907, 913-16 (N.J.Super.2004) (holding that a limitation of liability clause in a home inspection contract essentially operated as an exculpatory clause and could not be enforced because it contravened New Jersey public policy). Assuming that enforcing an ex-
culpatory clause in the case of such a breach would affect the public interest, Asch has not established that Telcove’s actions were “predatory.” Telcove produced evidence demonstrating that it had received numerous complaints about activity related to Asch’s IP addresses and decided to terminate Asch’s internet service on that basis. Importantly, Asch has not presented evidence suggesting that Telcove had a reason, other than the explanations it gave, for terminating its services to a paying client. Although Asch points to a series of emails sent among Telcove employees regarding Asch’s request for additional IP addresses, these emails do not demonstrate that Telcove acted predatorily by terminating the Agreement. Furthermore, assuming that Telcove breached the Agreement, enforcing an exculpatory clause after a willful breach of contract does not necessarily violate public policy. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 563 A.2d 31, 38 (1989) (“Where a person interferes with the performance of his or her own contract, the liability is governed by principles of contract law.... Contract law serves contractual parties’ economic interest, such as enabling them efficiently [to] breach the contract, free from the threat of punitive damages.” (internal citations and quotations omitted)); Saxon Constr. & Mgmt. Corp. v. Masterclean of N.C., Inc., 273 N.J.Super. 231, 641 A.2d 1056, 1059 (N.J.Super.1994) (discussing factors to consider when determining if enforcing a contractual term violates public policy). Because the public interest would not be adversely affected by the enforcement of this clause, the District Court properly enforced it.
Next, Asch contends that the District Court erred by concluding that the *314exculpatory clause in the Agreement was not unconscionable. “In determining whether a contract is unconscionable, courts focus on the bargaining power of the parties, the conspicuousness of the putative unfair term, and the oppressiveness and unreasonableness of the term.” Carter v. Exxon Co. USA, 177 F.3d 197, 207 (3d Cir.1999). Here, the District Court found there was no evidence of unequal bargaining power between the parties because Asch was a commercial entity that had previously entered into internet service agreements with several other service providers and was managed by an experienced businessman who had graduated from law school. In addition, the Court noted that the term was prominently presented in the parties’ agreement and was not unreasonable or oppressive.
We agree with the District Court’s conclusions about the bargaining power of the parties and the conspicuousness of the exculpatory clause. See id. Moreover, we agree that the clause is not unconscionable as applied to the facts of this civil action. See id. (“It is only when the circumstances of the transaction, including the sellers’ breach, cause the consequential damage exclusion to be inconsistent with the intent and reasonable commercial expectations of the parties that invalidation of the exclusionary clause would be appropriate .... ” (quoting Kearney & Trecker Corp. v. Master Engraving Co., 107 N.J. 584, 527 A.2d 429, 437-38 (1987))). Here, Telcove provided Asch with notice of its intent to terminate the Agreement and continued providing internet service to Asch while it negotiated service agreements with other internet providers. One provider offered a monthly fee that was within $200 of Telcove’s monthly fee, but Asch declined that offer and ceased operations. Thus, Telcove gave Asch notice and the opportunity to find another provider before terminating its service to Asch. Enforcing the exculpatory clause under these circumstances is not oppressive or unreasonable, and, therefore, the clause is not unconscionable.
Finally, Asch claims that the District Court erred by granting the motion for summary judgment by relying on Telcove’s assertion that it received 1500 complaints related to Asch’s IP addresses. Asch argues that the great majority of these complaints were anonymous and were not verified by Telcove. However, the District Court did not make a finding that the complaints Telcove received were accurate or that Asch was involved in “spamming” or sending emails with pornographic content. Instead, the Court found that Tel-cove relied on the complaints in good faith and that Asch did not demonstrate any bad faith of the part of Telcove. Accordingly, the Court did not err by considering this evidence when granting summary judgment.
III.
The judgment of the District Court will be affirmed.
. The parties agree that New Jersey law applies to the Agreement.
. Asch does not dispute the District Court's interpretation of the exculpatory clause, arguing only that the clause was unenforceable.
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OPINION
BARRY, Circuit Judge.
Appellant David Miles appeals his sentence of imprisonment following his plea of guilty to a three-count superceding information charging him with three acts of bank robbery, in violation of 18 U.S.C. § 2113(a). Arguing that the sentence is both proeedurally and substantively unreasonable, Miles asks us to remand to the District Court for re-sentencing. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and will affirm.
BACKGROUND
Because the parties are familiar with the pertinent facts and issues, we include only those necessary to resolve this appeal. During a nine-day period from late November through December 2007, Miles robbed three federally insured banks located in Pennsylvania. Most relevant to this appeal is his robbery on December 4, 2007 of the Wachovia Bank in York, Pennsylvania.
On June 10, 2008, Miles pled guilty to three counts of bank robbery. The Probation Office prepared a presentence report *316(“PSR”) and calculated a total offense level of twenty-seven. With Miles’s criminal history category of VI, the Sentencing Guidelines (U.S.S.G.) range was 130-162 months’ imprisonment. Miles objected to the recommended four-level enhancement under U.S.S.G. § 2B3.1(b)(2)(D) for “otherwise using” a dangerous weapon in connection with his robbery of the Wachovia Bank (Count 1). Instead, Miles argued, he merely “brandished” his weapon, which would result in a three-level enhancement under U.S.S.G. § 2B3.1(b)(2)(E).
The District Court held a hearing to address Miles’s objection. The government called Lori Wagner, who was working at the Wachovia Bank on the date of the robbery. Wagner testified that Miles, with his face covered, walked toward her and “said something like this is no joke, this is the real deal.” (App. at 75-76.) She remembered that “he pointed his hand at me and told me to stand against the wall.” (Id.) Although she could not recall if Miles was holding anything, she read into evidence a statement she made to the police on the day of the robbery, which stated in part as follows:
I was walking across the lobby. A guy came in wearing a black ski mask and jacket. Said this was for real. I heard a click, looked at him. He pointed a gun my way and said get to the corner against the wall, told everyone to put money at one teller station, told them to hurry up.
(Id. at 78.) The government then called another Wachovia employee, Angel Montgomery, who was also present during the robbery. Montgomery recalled seeing Miles enter the bank, “holding a gun up in the air.” (Id. at 88.) She explained that Miles “pointed at [Wagner] with the gun as she was moving and told her to stand back.” (Id.) Although Montgomery could not recall Miles’s exact words, she testified that he did point what was later found to be a toy gun “in [Wagner’s] direction.” (Id.)
In a March 4, 2009 opinion and order, the District Court rejected Miles’s objection to the application of the four-level enhancement. (Id. at 14.) At sentencing on March 24, 2009, Miles and his attorney explained the progress that Miles had made while in prison in dealing with his drug addiction. They also stressed the troubling circumstances that led him to commit his crimes. The Court imposed a sentence of 120 months’ imprisonment, which was ten months below the bottom of the applicable Guideline range, but not as low as Miles had requested.
STANDARD OF REVIEW
We review the District Court’s interpretation of the Guidelines de novo. United States v. Orr, 312 F.3d 141, 143 (3d Cir. 2002). The District Court’s findings of fact underlying the four-level enhancement for “otherwise using” a dangerous weapon are reviewed under the clearly erroneous standard. See United States v. Grier, 585 F.3d 138, 141 (3d Cir.2009); United States v. Dixon, 982 F.2d 116, 119 (3d Cir.1992). After reviewing a sentence for procedural error, we then “review the substantive reasonableness of the sentence under an abuse-of-discretion standard.” United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).
DISCUSSION
Miles raises two arguments in this appeal. First, he argues that the District Court “erroneously interpreted the Sentencing Guidelines” when it applied the four-level enhancement for having “otherwise used” a dangerous weapon. Second, he characterizes the sentence as substantively unreasonable because the Court “did *317not grant a sufficiently substantial downward departure.” (Appellant’s Br. at 4.)
A. Application of the Four-Level Enhancement
As noted above, Miles argues that during the December 4, 2007 robbery, he merely “brandished” rather than “otherwise used” a dangerous weapon and, therefore, his offense level should have been increased by three levels, rather than four.1
The Guidelines define the terms as follows:
“Brandished” ... means that all or part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person, regardless of whether the weapon was directly visible to that person. Accordingly, although the dangerous weapon does not have to be directly visible, the weapon must be present.
“Otherwise used” ... means that the conduct did not amount to the discharge of a firearm but was more than brandishing, displaying, or possessing a firearm or other dangerous weapon.
U.S.S.G. § 1B1.1, cmt. 1(C), (I). Finding a workable distinction between “brandished” and “otherwise used” is not a new venture. As we explained in United States v. Orr, “[t]he question, then, which must be answered is this: when does conduct constituting brandishing become sufficiently threatening such that the weapon was ‘otherwise used’?” 312 F.3d at 144. In United States v. Johnson, we cited with approval a workable distinction articulated by the Court of Appeals for the First Circuit:
[A] person may “brandish” a weapon to “advise” those concerned that he possesses the general ability to do violence, and that violence is imminently or immediately available-Altering this general display of weaponry by [for instance] specifically leveling a cocked firearm at the head or body of a bank teller or customer, ordering them to move or be quiet according to one’s direction, is a cessation of “brandishing” and the commencement of “otherwise used.”
199 F.3d 123, 127 (3d Cir.1999) (quoting United States v. LaFortune, 192 F.3d 157, 161-62 (1st Cir.1999)). Similarly, in Orr, we held that “pointing a gun at the head of the assistant manager and ordering her to empty money into a garbage bag was a ‘specific threat’ directed at her and was precisely the type of conduct which satisfies the ‘otherwise used’ requirement.” 312 F.3d at 145. We added that “[n]either the guidelines nor the caselaw requires infliction of the violent physical contact ... or a verbalized threat to harm the victim in order to constitute ‘otherwise used.’ ” Id. We fail to see how Miles’s case fits anywhere other than within the parameters of “otherwise used,” as that phrase has been defined by us in the bank robbery context.
Miles argues, however, that the evidence “establishes that [he] did nothing more than wave a toy gun about in an effort to intimidate.” (Appellant’s Br. at 26.) He cites Johnson, 199 F.3d 123, as well as an earlier case by the same name, United *318States v. Johnson, 931 F.2d 238 (3d Cir.1991), in which each of the defendants verbalized threats against their victims while holding weapons. Given Orr, Miles wisely does not argue that our case law requires that a defendant explicitly articulate a threat of violence, but claims that the circumstances of Orr were such that the defendant “explicitly communicated a non-verbal threat of imminent serious harm.... ” (Appellant’s Br. at 23.) Miles reads the facts of his case as being different from those of the cases he cites. We do not.
The District Court’s finding that Miles pointed a gun towards Wagner and ordered her to get against the wall, thus crediting her testimony and statement to the police as well as Montgomery’s testimony, was not clearly erroneous. Indeed, the clear inference from Miles’s order to Wagner was that if she did not comply, she would suffer the consequences. See Orr, 312 F.3d at 145 (robber’s pointing gun at victim’s head and ordering her to comply with his directives is “precisely the type of conduct which satisfies the ‘otherwise used’ requirement”). That, in our view, is an explicit, non-verbal threat of harm.2
Miles’s other efforts to characterize his behavior as “brandishing” the dangerous weapon are equally unavailing. In an attempt to suggest that the government was, itself, convinced that he merely “brandished” his weapon, Miles references the June 10, 2008 change of plea hearing, during which the government stated that he “brandished” a gun at each of the three robberies. He also references the government’s silence at the hearing in response to his attorney’s explanation that, on the basis of the “brandishing” enhancement, the Guideline range would be 120-150 months. Despite what the parties did or did not say, the District Court explained that, with respect to the Guideline range, “we’ll make a final determination on that at a later point in time, aided by the probation officer’s report.” (App. at 63.) The Court also explained that there would be a conference to deal with any objections to the PSR. (Id. at 64-65.) The plea agreement, itself, is also explicit that “any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant’s conduct, including facts that support any specific offense characteristic or enhancement or adjustment ... will be determined by the court.” (Id. at 23 (emphasis added); see also id. at 33, 36.).
Finally, Miles argues that an affirmance would “eviscerate any substantive difference between § 2B3.1(b)(2)(D) and § 2B3.1(b)(2)(E) ... [and would] collapse ‘brandish’ into ‘display,’ and require that any conduct beyond a mere display of a dangerous weapon be held ‘otherwise used.’” (Appellant’s Br. at 31.) Again, we disagree. Had Miles waved his weapon to “ ‘advise’ those concerned that he possessed] the general ability to do violence,” rather than pointed his weapon towards Wagner while ordering her to stand against the wall, his conduct could more easily have been characterized as “brandishing.” See LaFortune, 192 F.3d at 161-62. The District Court properly concluded that Miles “otherwise used” a dangerous weapon when increasing his Guidelines range sentence.3
*319B. Reasonableness of the Sentence
Miles argues that the “District Court abused its discretion in granting only a ten-month downward variance in light of Miles’s lack of a violent past and the fact that he committed these offenses ... because of mental health problems and a serious drug addiction.” (Appellant’s Br. at 31.)
“[W]e ... review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines range.” Wise, 515 F.3d at 218. When a court imposes a sentence outside of the Guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Unless no reasonable sentencing court would have imposed” the sentence at issue for the reasons articulated by the district court, we must affirm. United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009).
The District Court heard testimony and considered the written submissions of the parties on the application of the § 3553(a) factors to this case. Miles was also given the opportunity to speak at length. The Court explained that Miles had an “astonishing criminal history,” and that although it viewed him as “remorseful” and “off illicit and illegal drugs,” his actions nonetheless had a serious and lasting effect on innocent people’s lives. (Id. at 160-62.) The Court noted Miles’s history over the lást several years of “disrespect and disregard for the law[],” and also determined that he needed “a longer sentence and more intensive treatment” than he had previously received during his time in state prison. (Id. at 163.) Recognizing the advisory nature of the Guidelines, the Court then imposed a sentence of 120 months’ imprisonment, ten months below the Guidelines range, and a term of supervised release.
The District Court thoughtfully considered the § 3553(a) factors as they applied to Miles’s case and provided sufficient grounds to support the sentence it imposed. We cannot say that “no reasonable sentencing court” would have imposed the same sentence. Tomko, 562 F.3d at 568. There was no abuse of discretion here.
CONCLUSION
We will affirm the judgment of sentence.
. Miles does not dispute that the toy gun he carried during the robbery was a "dangerous weapon” under the Guidelines. U.S.S.G. § IB 1.1, cmt. 1(D) (dangerous weapon means “an object that is not an instrument capable of inflicting death or serious bodily injury but ... closely resembles such an instrument"); Dixon, 982 F.2d at 124 ("[A] robber's intentional creation of an appearance of possession of a dangerous weapon is sufficient to warrant enhanced punishment.”).
. Miles attacks Wagner’s statement to the police that she heard a "click” when she looked towards him during the robbery. There is sufficient evidence in the record to find that Miles "otherwise used” a dangerous weapon without also considering the "click,” and we need not address it further.
. As for Miles's concern that we have "collapse[d] ‘brandish’ into ‘display,’ " we note that U.S.S.G. § 2B3.1(b) does not address *319"display” and the commentary accompanying U.S.S.G. § 1B1.1 includes the word "display” in its enumerated definitions of "brandished” and "otherwise used.” Miles has not cited any case listing "five distinct categories of conduct ... possessed, displayed, brandished, otherwise used, and discharged." (Appellant's Br. at 20.) Moreover, as Appendix C notes, “[t]he [2000] amendment also deletes the term 'displayed' wherever it appears in the Guidelines Manual in an enhancement with 'brandished.' Because 'brandished' applies in any case in which 'all or part of the weapon was displayed,' the Commission determined the inclusion of "displayed” in these enhancements is redundant.” U.S.S.G. Supp., App. C, vol. II, amend. 601.
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on an appeal from an order of dismissal entered in the District Court on December 19, 2008, under Fed.R.Civ.P. 12(b)(6). Ap*321pellant, David L. Green, an employee of the Department of the Navy, initiated this action pro se in the District Court against Donald C. Winter, the Secretary of Navy in his official capacity, charging that he, Green, submitted an application to his federal employer for the position of supervisor accountant but that the Department of Navy refused to acknowledge or accept his application “due to plaintiff[’s] race/col- or/sex/reprisal, etc.” App. at 33. Winter moved for summary judgment and the District Court dismissed the action because Green did not respond to Winter’s motion. Green then moved for reconsideration and the District Court granted his motion. Nevertheless, in a December 19, 2008 comprehensive memorandum opinion and accompanying order, the Court granted Winter’s motion to dismiss on the merits. The appeal followed.1
The District Court set forth the background of the matter and its reasons for dismissing the action in its memorandum opinion and thus we need not restate at length what the Court said.2 It is sufficient to point out that the action failed in the District Court for three reasons. First, the Court held that Green did not contact an Equal Employment Opportunity counselor at his agency within 45 days “of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action” as 29 C.F.R. § 1614.105(a)(1) requires. Second, Green did not file a timely notice of appeal with the Equal Employment Opportunity Commission (“EEOC”) following a final order of the Department of the Navy mailed to him on March 2, 2002, after a determination that there had not been discrimination against him. Third, the doctrine of sovereign immunity barred a due process of law complaint that Green brought. We, however, address only the first two points as Green does not challenge the sovereign immunity holding.3
Exercising plenary review we see no reason to reject any of the District Court’s conclusions. To start with, Green knew on December 24, 2003, well over 45 *322days before he contacted an EEOC counselor on February 9, 2004, that his employer did not appoint him to the position he had been seeking, and in his brief he does not deny that he had that knowledge. Rather, he contends that he did not know for another month after December 24, 2003, that he was deprived of the appointment by reason of what he regards as discrimination against him. But the fact remains that he knew in December 2003 that the alleged discriminatory act, i.e., the failure of the Navy to make the appointment he sought, had occurred, and thus he was aware in December 2003 that he had been injured by the Navy’s conduct. Accordingly, 29 C.F.R. § 1614.105(a)(1) bars this action. See Oshiver v. Levin, Fish-bein, Sedran, & Berman, 38 F.3d 1380, 1391 (3d Cir.1994).
We recognize that Green contends that an EEOC counselor advised him on February 20, 2004, not to file a formal complaint. But we do not see why that matters as by that time his 45-day period to contact a counselor had expired. In any event, the counselor only gave Green advice which did not preclude him from filing a formal complaint which, in fact, he did on May 18, 2004.
Furthermore, the District Court correctly concluded that Green’s appeal to the EEOC was untimely. As we set forth above, the Department of the Navy mailed Green a notice on March 2, 2002, that there had not been discrimination against him. He had 30 days plus five days added for receipt of the mail notice to him to appeal from that finding to the EEOC. See 29 C.F.R. § 1614.402(a). Nevertheless, he did not appeal until April 12, 2002, and thus he simply did not meet the deadline for an appeal. While we recognize that the EEOC in its decision affirming the dismissal of Green’s complaint recited that the appeal was “timely,” it did not explain why it believed that to be so. In any event, the appeal was not timely and the EEOC’s statement to the contrary does not make it so or bind us. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n. 9 (3d Cir.1983); superceded on another matter by 29 C.F.R. § 1601.13(a)(4). The situation is no different than when on an appeal a court of appeals determines if a district court had subject matter jurisdiction in the case on appeal. A district court’s conclusion that it had jurisdiction does not bind a court of appeals on an appeal from the district court. See Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir.2007). In any event, even if the EEOC was correct the action still would be barred by reason of Green’s delay in contacting an EEOC counselor.
The order of December 19, 2009, 2008 WL 5273579, will be affirmed.
. The District Court had jurisdiction under 42 U.S.C. § 2000e-16 and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal.
. There is some confusion in the record as to what motion the District Court granted after it granted Green's motion for reconsideration. Winter moved for both an order of dismissal and for summary judgment and in its opinion the District Court set forth the standards for consideration of both motions, thereby suggesting that it was granting both a motion to dismiss and a motion for summary judgment. Yet at the outset of its opinion the Court, after reciting that it was considering a "Motion to Dismiss Complaint and/or for Summary Judgment,” indicated that "Defendant’s Motion to Dismiss is granted," app. at 163, and the accompanying order closing the case did not mention summary judgment but stated that "Defendant’s motion to Dismiss in GRANTED.” App. at 178. We, however, will not linger on this point as we are considering the appeal exercising plenary review of the District Court’s opinion and order and, in turn, are considering the case on both the standards for granting motions to dismiss and for summary judgment.
.The District Court denied Green's repeated applications for appointment of an attorney to represent him in orders that he regards as "an abuse of discretion.” Appellant's br. at 9. However, Green does not make a real argument supporting that contention which therefore is not properly before us. See Pennsylvania Dep't of Pub. Welfare v. United States Dep’t of Health and Human Servs., 101 F.3d 939, 945 (3d Cir.1996). In any event, the Court did not abuse its discretion in denying the appointment as Green is an experienced litigator who should have been capable of proceeding pro se. In this regard we point out that the statement of related cases in Winter’s brief lists one appeal to this Court, four district court actions, and seven administrative proceedings before the EEOC.
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OPINION
PER CURIAM.
Appellant Emmett Nelson appeals from the order of the United States District Court for the Western District of Pennsylvania entered on February 4, 2009, denying his petition for a writ of habeas corpus. For the following reasons, we will affirm the District Court’s judgment.
I. Background
In June 2003, Emmett Nelson was arrested on New York state drug and firearm charges. He was released on bond on July 24, 2003. On August 9, 2003, he was arrested on a related federal charge of possession of a weapon in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1). Nelson pleaded guilty to both the state and federal charges. In February 2004, the state court sentenced Nelson to a term of one to three years of imprisonment. Shortly thereafter, the District Court sentenced Nelson to 60 months of imprisonment.
Nelson served his state sentence first, beginning in June 2004. After completing that sentence, he was transferred to federal custody. He began serving his federal sentence on June 17, 2006, and received no credit towards his federal sentence based upon his prior state custody. His projected release date is in October 2010.
In March 2007, after exhausting his administrative remedies within the prison grievance system, Nelson petitioned for a *328writ of habeas corpus pursuant to 28 U.S.C. § 2241. Nelson claimed that the Bureau of Prisons (“BOP”) did not properly compute his federal sentence. The Magistrate Judge recommended that Nelson’s petition be denied. On September 29, 2009, the District Court adopted the Magistrate Judge’s Report and Recommendation and denied Nelson’s petition.
Nelson moved for reconsideration, explaining that he had objected to the Report and Recommendation, but that his objections had not been timely received by the District Court. He also argued that the delay was excusable because it was attributable to the prison’s mail system. The Magistrate Judge recommended granting the motion for reconsideration but denying the habeas corpus petition in any event. On February 4, 2009, the District Court vacated the initial denial of the habeas corpus petition, considered Nelson’s objections, and then reinstated the denial.
Proceeding pro se, Nelson timely filed a notice of appeal.
II. Analysis
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We exercise plenary review over the District Court’s denial of the petition for a writ of habeas corpus. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002).
Nelson claims that, when New York released him on bail on July 24, 2003, New York state relinquished primary jurisdiction over him. Because he was no longer in state custody, he claims, he should receive credit towards his federal sentence for the period from his arrest on the federal charges on August 9, 2003, until his return to New York state custody on June 1, 2004.1 Nelson does not dispute that he received credit toward his state sentence for the 306 days he was imprisoned between August 9, 2003 and June 10, 2004. Instead, Nelson claims that he is entitled to credit towards both sentences for that approximate ten-month period.
Because Nelson had already received credit toward his state sentence for the disputed period, the District Court correctly concluded that Nelson could not receive double credit for that time under 18 U.S.C. § 3585(b). Section 3585(b) provides: “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences .... that has not been credited against another sentence.” Thus, under the plain language of the statute, the BOP is barred from crediting Nelson’s federal sentence for the time he spent in custody that was already credited towai’d his state sentence. See 18 U.S.C. § 3585(b); see also United States v. Wilson, 503 U.S. 329, 337, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) (stating that Congress made clear in § 3585(b) that a prisoner can “not receive double credit for his detention time”).
On appeal, Nelson contends that “[t]he B.O.P. has permitted an award of pre-sentence credit under section 3585(b) in circumstances even when the same period of detention was credited against a prior sentence,” citing this Court’s decision in Rios v. Wiley, 201 F.3d 257 (3d Cir.2000), superceded by statute as recognized in United States v. Saintville, 218 F.3d 246 *329(3d Cir.2000). Nelson’s reliance on Rios is misplaced.
In Rios, federal authorities took custody of Rios, a state prisoner, for a period of 22 months pursuant to a writ of habeas corpus ad prosequendum. When ultimately sentenced on federal charges, the terms of Rios’s federal sentence expressly directed that it was to be served concurrently with Rios’ state sentence and would include “credit for time served.” In affirming the District Court’s grant of habeas corpus relief, we recognized that there are certain very limited exceptions to the application of § 3585(b). See id. at 272. However, as a general matter, that provision bars the award of “double credit.” See id. Indeed, contrary to Nelson’s argument, we determined that the defendant in Rios was not entitled to “double credit” under § 3585(b). See id. at 270. Rather, we concluded that, under a since-amended provision of the sentencing guidelines, the sentencing court exercised its discretion to in sentencing Rios by considering the prior time in federal custody as part of the process of determining the reasonable incremental punishment for Rios’s crime. Id. at 267.2
In Nelson’s case, in contrast to Rios, the federal sentence that Nelson was serving could not, as a matter of law, run concurrently with his state sentence. 18 U.S.C. § 924(c)(l)(D)(ii). (“[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.... ”). The District Court lacked the discretion to attempt to provide Nelson with credit for prior time served and it did not attempt do so. Moreover, Nelson offers nothing to convince us that any recognized exception to the § 3585(b) bar on “double credit” could or should apply to his circumstances.3
Nelson also argues that the District Court erred by failing to consider his objections to the Magistrate Judge’s initial report and recommendation. Although the District Court first denied the petition without considering Nelson’s objections, the record shows that the District Court fully and appropriately addressed this alleged error. The District Court granted Nelson’s motion for reconsideration and reinstated his habeas corpus petition for the express purpose of considering his objections to the Magistrate Judge’s report and recommendation. After doing considering those objections, the District Court once again denied the petition. We find no error in the District Court’s approach.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
. Initially, Nelson argued that because he had completed a three year state sentence, which the state court judge had ordered to be served concurrently with his federal sentence, he should have received three years of credit toward his federal sentence. However, Nelson has since conceded that a sentence under 18 U.S.C. § 924(c) cannot run concurrently with another sentence.
. The Sentencing Guidelines provision, U.S.S.G. § 5G1.3(c), provided: "In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” That section was amended in 1995 so that sentencing courts are no longer required to tie the imposition of the federal sentence to the other, undischarged term of imprisonment in order to achieve a reasonable incremental punishment for both. See Saintville, 218 F.3d at 249.
. The recognized exceptions to the § 3585(b) bar have to do with serving concurrent sentences of differing lengths. See e.g., Kayfez v. Gasele, 993 F.2d 1288 (7th Cir.1993); Willis v. United States, 438 F.2d 923 (5th Cir.1971); see also Rios, 201 F.3d at 272 n. 13 (discussing the Willis/Kayfez exception to § 3585(b)). These exceptions do not apply to Nelson.
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OPINION
PER CURIAM.
Pro se appellant Harold Wolford, a federal pretrial detainee currently incarcerated in Youngstown, Ohio, appeals from the District Court’s order dismissing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In January 2008, Wolford was indicted in the United States District Court for the Western District of Pennsylvania on co*232caine and weapon possession charges. Counsel was appointed to represent him and the Magistrate Judge ordered him temporarily detained pending a hearing. On May 11, 2009, Wolford filed a pro se petition to dismiss the indictment in his criminal case, challenging the court’s jurisdiction and seeking his immediate release. This petition was denied by the Magistrate Judge. Dissatisfied with that result, Wol-ford initiated the instant civil action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241, again challenging the court’s jurisdiction and seeking his release from detention. In his complaint, Wolford again claimed that Public Law 80-772 and 18 U.S.C. § 3231 were enacted unconstitutionally, and thus the District Court lacked jurisdiction to prosecute him. The District Court dismissed the petition, concluding that Public Law 80-772 and 18 U.S.C. § 3231 were properly enacted and constitutional. Wolford now appeals from the order of the District Court dismissing his petition for habeas corpus pursuant to 28 U.S.C. § 2241.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary view over the District Court’s dismissal. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.2000). Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
Wolford’s habeas petition was properly denied. His contention that he is being held in custody pursuant to an unlawful grant of jurisdictional authority because the criminal jurisdiction statute, 18 U.S.C. § 3231, was enacted by less than a quorum of Congress, is without merit. Section 3231 was properly enacted and is binding. The 1948 amendment to that statute, Public Law 80-772, passed both houses of Congress and was signed into law by President Truman on June 25,1947. See United States v. Risquet, 426 F.Supp.2d 310, 311 (E.D.Pa.2006).
We will summarily affirm the District Court’s judgment denying habeas relief.
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OPINION
PER CURIAM.
Appellant Fayed Tawalbeh, a federal prisoner incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey, was charged in United States District Court for the Western District of Virginia with being a member of a criminal enterprise in violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. § 1962(c) (“RICO”), and conspiring to violate RICO in violation of 18 U.S.C. § 1962(d). Tawalbeh also was charged with conspiring to damage and destroy by means of fire a building known as “The Corner Store” and to use an incendiary destructive device, a “Molotov cocktail,” in violation of 18 U.S.C. § 371; maliciously damaging and destroying by means of fire The Corner Store in violation of 18 U.S.C. § 844(i); using an incendiary destructive device, a “Molotov cocktail,” during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and conspiracy to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846. A jury acquitted him of the RICO and drug distribution conspiracy counts, but found him guilty on the remaining counts. The sentencing court imposed a total term of imprisonment of 70 months on the arson counts, and an additional 30 years pursuant to 18 U.S.C. § 924(c) for use of a Molotov cocktail during and in relation to a crime of violence, for a total sentence of 430 months.
*234The United States Court of Appeals for the Fourth Circuit affirmed the judgment of conviction and sentence in United States v. Abed, 2000 WL 14190 (4th Cir. January 10, 2000) (district court did not err in sentencing Tawalbeh to mandatory, consecutive thirty-year sentence under section 924(c) for using Molotov cocktail to commit The Corner Store arson). The United States Supreme Court denied certiorari.
On November 6, 2000, Tawalbeh filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, contending in part that the evidence was insufficient to prove his involvement in the arson and insufficient to convict him of aiding and abetting the use of a Molotov cocktail. The motion was denied on the merits, see Tawalbeh v. United States, 2001 WL 1274562 (W.D.Va. October 19, 2001), and Tawalbeh appealed. The Fourth Circuit denied Tawalbeh’s request for a certificate of appealability in an appeal docketed at C.A. No. 02-6835, and the Supreme Court denied certiorari.
On March 26, 2007, Tawalbeh filed a motion pursuant to 18 U.S.C. § 3582(c)(2) in the sentencing court, seeking relief under Amendment 599 of the Guidelines. The motion was denied as an unauthorized second or successive section 2255 motion, and the court provided information in its Memorandum Opinion on how to apply to the Fourth Circuit Court of Appeals for authorization to file a second or successive section 2255 motion, see Tawalbeh v. United States, 2007 WL 1097864 (W.D.Va. April 9, 2007). The Fourth Circuit affirmed in an appeal docketed at C.A. No. 07-6787.
On March 3, 2008, Tawalbeh filed a motion for authorization to file a second or successive section 2255 motion in the Fourth Circuit Court of Appeals, see In re: Tawalbeh, C.A. No. 08-0137. Tawalbeh contended in his application (which is available for viewing on the public docket) that he had newly discovered evidence of both actual innocence and prosecutorial misconduct. The application included affidavits from Christopher L. Womack, Patricia Khaled, and certain documents obtained through the Freedom of Information Act. The Fourth Circuit denied Tawalbeh authorization to file a second section 2255 motion on March 31, 2008.
At issue in the instant appeal, on July 24, 2009, Tawalbeh filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in United District Court for the District of New Jersey, where he is confined, contending that he has newly discovered evidence showing that he is actually innocent of conspiracy to commit arson, arson, and use of a Molotov cocktail, and that his incarceration is accordingly a miscarriage of justice. The application included affidavits from Kimberly Spradlin, Rayed Fawzy Abed, and Patricia Khaled, and contained some of the same documentary evidence he submitted with his previous motion for authorization to file a second or successive section 2255 motion. In an order entered on October 16, 2009, the District Court denied the habeas corpus petition for lack of jurisdiction.
Tawalbeh appeals. Our Clerk advised him that his appeal was subject to summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We have reviewed that submission.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no substantial question is presented by the appeal. Our review is plenary. United States v. Thompson, 70 F.3d 279, 280-81 (3d Cir.1995).
*235We will summarily affirm the order of the District Court because no substantial question is presented by this appeal. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or sentence. See Davis v. United States, 417 U.S. 333, 343-44, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Under the explicit terms of 28 U.S.C. § 2255, unless a section 2255 motion would be “inadequate or ineffective,” even a habeas corpus petition cannot be entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). Section 2255 is not inadequate or ineffective simply because Tawalbeh is prevented by the gatekeeping requirements of the statute, see 28 U.S.C. § 2255(h), from litigating his claims of innocence and prosecutorial misconduct.1 “It is the efficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)). It thus makes no difference that, as Tawalbeh asserts in his summary action response, some of his evidence is new and could not actually have been considered by the sentencing court in the context of his first section 2255. Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, see In re: Dorsainvil, 119 F.3d 245 (3d Cir.1997), and would not apply here because Tawalbeh does not claim that he was convicted for conduct later deemed to be noncriminal by a change in law. See id. at 251.
For the foregoing reasons, we will summarily affirm the order of the District Court dismissing Tawalbeh’s habeas corpus petition for lack of jurisdiction.
. Section 2255 provides that:
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
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OPINION
PER CURIAM.
Appellant Gregory L. Roberson, proceeding pro se, sought a reduction in his sentence of imprisonment pursuant to 18 U.S.C. § 3582(e), which the District Court denied. For the reasons that follow, we will summarily affirm.
In 2000, following a jury trial in the United States District Court for the Middle District of Pennsylvania, Roberson was convicted of conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base (crack) and cocaine, and distribution and possession with intent to distribute cocaine base (crack). The Court determined his base offense level to be 34, with a 4 level upward adjustment for his role as an organizer and leader, and a 2 level upward adjustment for possession of a dangerous weapon, for a total base offense level of 40, with a criminal history category of VI. This resulted in an imprisonment range of 360 months to life.1 Roberson was sentenced to a total of 360 months’ imprisonment.
In 2007, the United States Sentencing Commission enacted Amendment 706, which lowered the base offense level for cocaine base (“crack”) offenses, and made the Amendment retroactive. Roberson thereafter filed a motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that the sentencing court may modify a term of imprisonment:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in *237section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
In determining whether a defendant’s sentence is eligible for such a reduction, the sentencing court is directed to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” See U.S. Sentencing Guidelines § lB1.10(b).
In his motion, Roberson argued that with a two level reduction, his base offense level would be 32, resulting in a sentencing range of 210-262 months. However, Roberson’s calculation omitted the two upward departures, which actually place him at a total base offense level of 38. As both the Government and the Federal Public Defender explained to the District Court, under the new Sentencing Guidelines, Roberson remains in the same sentencing range. Accordingly, the District Court denied Roberson’s motion.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s interpretation of the Sentencing Guidelines de novo and its decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
In his opposition to possible summary action, Roberson argues that under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), not only are the sentencing guidelines advisory rather than mandatory, but so is the prescription of section 3582 that the sentencing range must have subsequently been lowered before a district court may consider re-sentencing a defendant. Despite Roberson’s assertion to the contrary, no court has held as much. In United States v. Hicks, 472 F.3d 1167 (9th Cir.2007), the Ninth Circuit held that, in the case of a defendant “whose sentencing range has been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),” the district court may treat the new sentencing range as advisory rather than mandatory in re-sentencing that defendant. See id. at 1170; but see United States v. Dillon, 572 F.3d 146, 149-50 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009). As we explained in Mateo, “[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level.” 560 F.3d at 154. Because Roberson’s sentencing range was not affected by Amendment 706, he is not eligible for a reduction in his sentence pursuant to Section 3582(c). Accordingly, the District Court properly denied Roberson’s motion for a reduction in sentence.
Based on the foregoing, we conclude that this appeal presents no “substantial question,” and will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
. According to the Government, while the guideline range is 360 to life, the upper range in this particular case was 1080 months, calculated by combining the statutory maximum sentence for each of the crimes of which Roberson was convicted.
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OPINION
PER CURIAM.
Eric Cook, a federal prisoner proceeding pro se, appeals an order of the United States District Court for the Western District of Pennsylvania denying his motion for transcripts. We will affirm.
In 2003, Cook pleaded guilty in District Court to possession of a firearm by a convicted felon. He was sentenced to 62 months in prison and three years of supervised release. Cook was later released from prison, and, in 2008, he was arrested on drug-related charges. The Probation Office petitioned for Cook’s arrest because he had violated the conditions of his supervised release. On May 21, 2009, the District Court held a hearing on the revocation of Cook’s supervised release. The District Court found that Cook had violated the conditions of his supervised release and ordered that he serve 24 months in prison. Cook did not appeal.1
In September 2009, Cook filed a pro se motion requesting that a transcript of his revocation hearing be prepared and provided to him free of cost. Cook stated that he sought the transcript for purposes of preparing a motion pursuant to 28 U.S.C. § 2255 challenging the revocation of his supervised release. The District Court denied the motion, noting that there was nothing pending before the court at that time. This appeal followed.
Cook asserts that he has a valid ineffective assistance of counsel claim based upon counsel’s failure to file a notice of appeal from the District Court’s order revoking his supervised release. Cook contends that there is insufficient evidence supporting the revocation. Cook also asserts that counsel failed to challenge evidence presented at his hearing where a witness was not made available for cross-examination.
If Cook had filed a motion pursuant to 28 U.S.C. § 2255 raising his ineffective assistance of counsel claims and he was granted in forma pauperis status, the transcript would have been prepared at the government’s expense only if the trial judge certified that the suit was not frivolous and that the transcript was needed to decide the issues presented. See 28 *239U.S.C. § 753(f). The District Court did not abuse its discretion in denying Cook’s motion for transcripts where there was no pending § 2255 motion and his motion for transcripts did not set forth the claims he wished to pursue.
Because this appeal does not raise a substantial question, we will affirm the District Court’s order.
. On July 28, 2009, Cook filed a motion for an extension of time to file a notice of appeal. The District Court denied the motion, explaining that the 30-day period that it was authorized to extend the time to appeal had passed.
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OPINION
PER CURIAM.
Appellant Curtis L. McKeithan, proceeding pro se, sought a reduction in his sentence of imprisonment pursuant to 18 U.S.C. § 3582(e), which the District Court denied. For the reasons that follow, we will summarily affirm.
In 2001, following a jury trial in the United States District Court for the Middle District of Pennsylvania, McKeithan was convicted of conspiracy to distribute and possess with intent to distribute in excess of 50 grams of cocaine base (crack), distribution and possession with intent to distribute in excess of 50 grams of cocaine base (crack), and related offenses. The *240Court determined his base offense level to be 38, with a 4 level upward adjustment for his lead role in the offense, for a total base offense level of 42, with a criminal history category of III. This resulted in an imprisonment range of 360 months to life. McKeithan was sentenced to a total of 420 months’ imprisonment, consisting of 360 months for the drug-related offenses with a consecutive 60 month sentence for the possession of a firearm conviction.
In 2007, the United States Sentencing Commission enacted Amendment 706, which lowered the base offense level for cocaine base (“crack”) offenses, and made the Amendment retroactive. McKeithan thereafter filed a motion seeking a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that the sentencing court may modify a term of imprisonment:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
In determining whether a defendant’s sentence is eligible for such a reduction, the sentencing court is directed to “determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” See U.S. Sentencing Guidelines § lB1.10(b).
In support of his motion, McKeithan made several arguments regarding the District Court’s discretion in sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Spears v. United States, — U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009), and the unfairness of the disparity in sentences between him and his co-defendant. However, as both the Government and the Federal Public Defender explained to the District Court, while McKeithan’s base offense level under the new Sentencing Guidelines would be readjusted to a 40, he remains in the same sentencing range.1 Accordingly, the District Court denied McKeithan’s motion.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s interpretation of the Sentencing Guidelines de novo and its decision whether to grant or deny a defendant’s motion to reduce his sentence pursuant to § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
In his informal brief, which we construe as his opposition to possible summary action, McKeithan argues that the District Court erred in not considering the sentencing factors listed in 18 U.S.C. § 3553(a) and in not exercising its discretion in sentencing him under Booker and its progeny. There is a split amongst the U.S. Courts of Appeals as to whether the *241sentencing guidelines are advisory rather than mandatory in the context of a Section 8582 sentence modification. Compare United States v. Hicks, 472 F.3d 1167 (9th Cir.2007), with United States v. Dillon, 572 F.3d 146, 149-50 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009). However, this issue does not arise unless the sentencing range under the amended guidelines is lower than it was at the time of the defendant’s original sentencing. See Mateo, 560 F.3d at 154 (“[t]o be entitled to a reduction of sentence, a defendant’s sentencing range must have been lowered by recalculation based on the amended base offense level”). Because McKeithan’s sentencing range was not affected by Amendment 706, he is not eligible for a reduction in his sentence pursuant to Section 3582(c). Accordingly, the District Court properly denied McKeithan’s motion for a reduction in sentence.
Based on the foregoing, we conclude that this appeal presents no “substantial question,” and will summarily affirm the judgment of the District Court. See 3d Cir. LAR 27.4 & I.O.P. 10.6.
. Because McKeithan’s five-year sentence on the gun charge was not affected by Amendment 706, McKeithan is not eligible for re-sentencing on that charge.
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OPINION
PER CURIAM.
Joseph Fessler and Ann Fessler (“the Fesslers”) appeal from an order of the United States District Court for the Middle District of Pennsylvania denying their motion entitled “Requestin [sic] Counter-suit Against Kirk Sauer Community Development Wilkes Barre, PA. Motion for Sanctions.” For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
In 1973, the Fesslers’ property was taken by eminent domain by the City of Wilkes-Barre, Pennsylvania. Following a denial of what they deemed an adequate relocation benefit, the Fesslers filed numerous state and federal lawsuits against the City of Wilkes-Barre Redevelopment Authority and the United States Department of Housing and Urban Development.
On October 24, 2007, the Fesslers, proceeding pro se, filed an action in the District Court against several current and former employees of the Wilkes-Barre Redevelopment Authority and the Department of Housing and Urban Development related to their dissatisfaction with the City of Wilkes-Barre’s denial of a relocation payment to the Fesslers. The Defendants moved to dismiss the case and the Fesslers moved for default judgment against Defendant Alphonso Johnson on grounds that he failed to timely answer their Complaint.
On August 22, 2008, the District Court granted Defendants’ motions to dismiss the case and denied the Fesslers’ motion for default judgment. The Fesslers filed a timely appeal to this Court and we summarily affirmed the judgment of the District Court. See Fessler v. Sauer, 316 Fed.Appx. 174 (3d Cir.2009).
In September 2009, the Fesslers filed in the District Court the current motion entitled “Requestin [sic] Countersuit Against Kirk Sauer Community Development Wilkes Barre, PA. Motion for Sanctions.”1 The District Court denied the motion with*243out opinion and the Fesslers have appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court appropriately denied the Fesslers’ motion. By the time that the Fesslers filed their motion in the District Court, final judgment had already been entered in their case. Because the Fesslers’ motion did not seek relief under a specific Federal Rule of Civil Procedure, and mindful that Federal Rules of Civil Procedure 59 and 60 govern the opening of final judgments, we consider whether the motion should have been characterized as a motion for relief thereunder. It should not have been.
First, the Fesslers would not have been entitled to relief under Rule 59(e) as the motion was filed beyond the ten days provided for under the Rule. See Fed.R.Civ.P. 59. Second, the Fesslers would not have been entitled to relief under Rule 60(b) as the they did not set forth any basis for granting relief under the Rule, including the catch-all provision in Rule 60(b)(6) that allows a court to relieve a party from a judgment for “any other reason that justifies relief.” See Fed.R.Civ.P. 60; see also Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir.2008). Even construing the motion liberally, we cannot discern any conceivable basis to reopen the judgment.
As there is no substantial question presented by this appeal, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Appellants’ document entitled “Payment of Legal Fees,” which appears to seek an order from this Court directing the Appellees to pay Appellants’ legal fees, is denied.
. The Defendants in the case had previously filed a motion for sanctions and attorneys fees against the Fesslers which the District Court denied.
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*245OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviated recitation to explain why we will affirm the order of the District Court.
Razo, a citizen of the Philippines, was employed on board the cruise ship MW Empress of the Seas. Royal Caribbean was the operator and bareboat charterer of the M/V Nordic Empress. Nordic Empress Shipping owned the ship. Razo alleges that he was injured during a lifeboat drill. He brought various claims against numerous parties in New Jersey state court, including claims for Jones Act negligence and unseaworthiness against Royal Caribbean and Nordic. The case was removed to the District Court.
Razo was employed by the terms of a collective bargaining agreement that incorporated a Philippine Overseas and Employment Administration (“POEA”) standard contract. Relying on the terms of that contract, Royal Caribbean and Nordic successfully sought to compel arbitration of his claims. Razo now appeals the District Court’s order to compel, arguing that the claims are not removable pursuant to the Savings to Suitors clause of 28 U.S.C. § 1338 and the anti-removal statute, 28 U.S.C. § 1445(a), applicable to Jones Act and the Federal Employer’s Liability Act cases.
Razo first complains that the District Court erred in ruling that an arbitration agreement existed between himself and Royal Caribbean at the time of Razo’s injury. We agree with the District Court that the following provision was properly incorporated into Razo’s contract: “[i]n cases of claims and disputes arising from [seafaring] employment, the parties covered by a collective bargaining agreement, shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators.”
Razo argues that this incorporated language conflicts with Section 5 of the contract, which states: “all claims disputes or controversies that may arise from this employment contract shall be brought by the herein parties exclusively before the proper courts in Metro Manila.” We agree with the District Court however, that the plain language of Section 5 dictates the venue of the arbitration. Therefore, we do not find any conflict between Section 2 and Section 5.
Razo next argues that, even if the provisions of the contract do not conflict, the agreement is unenforceable under the New York Convention Act. 9 U.S.C. § 201 et seq. An arbitration agreement falls under the Convention if: “(1) there is an agreement in writing to arbitrate the dispute; (2) the agreement provides for arbitration in the territory of a Convention signatory; (3) the agreement arises out of a commercial legal relationship; and (4) a party to the agreement is not an American citizen.” Francisco v. STOLT ACHIEVEMENT MT, 293 F.3d 270, 273 (5th Cir.2002). Moreover, the Convention Act mandates arbitration if these requirements are met. Id.
We have already ruled that there is an agreement to arbitrate. It is beyond question that the Philippines is a signatory to the Convention and that Razo is not a United States citizen. We also find that the District Court was correct in concluding that contracts of employment for seaman are not excluded from the term “commercial” in the Convention Act. For these reasons we do not find any error in the District Court’s conclusion that the Con*246vention Act applies to the contract at issue, compelling arbitration here.
Moreover, we find no reason to disturb the District Court’s ruling that the forum for arbitration is the Philippines. The District Court correctly ruled that Razo’s reliance on the Jones Act (46 U.S.C. § 30104 et seq.), the Federal Employer’s Liability Act (45 U.S.C. § 51 et seq.) and 46 U.S.C. § 30509 is misplaced. The Convention Act provides a separate basis for jurisdiction, and seaman employment contracts are encompassed by that Act. Therefore, the Jones Act does not apply and, because of this, the provisions of the Federal Employer’s Liability Act are not implicated. Moreover, Razo cannot rely on 46 U.S.C. § 30509, which applies to passengers of common carriers. Finally, it is axiomatic that Razo, as a plaintiff, cannot invoke forum non conveniens to move the arbitration from the Philippines.
With regard to Nordic’s appeal of the District Court’s remand of Razo’s unseaworthiness claims against Nordic, we agree with the District Court’s analysis that, as owner of the ship, Nordic cannot dodge potential liability through contractual provisions. Moreover, the District Court was correct in determining that Nordic cannot rely upon the arbitration agreement that binds Royal Caribbean and Razo as a defense here. The District Court properly remanded this claim.
For all of these reasons, we will affirm the order of the District Court.
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OPINION
PER CURIAM.
Petitioner Robert Gene Rega, proceeding pro se, filed this mandamus petition pursuant to 28 U.S.C. § 1651(a), seeking an order compelling the District Court to adjudicate petitioner’s motion to compel discovery. For the reasons that follow, we will deny the petition.
I.
Rega is currently an inmate at the State Correctional Institution (“SCI”) at Greene, in Waynesburg, Pennsylvania. On February 6, 2008, Rega filed a civil rights action in the Western District of Pennsylvania against the Secretary of the Department of Corrections (“DOC”) and other DOC and SCI officials, alleging a failure to protect and/or intervene in connection with an assault by another inmate, deliberate indifference to his serious medical needs, and retaliation.
Rega alleges that on or about May 25, 2009, he issued discovery requests to the named defendants. On July 15, 2009, Rega filed a motion to compel responses to his discovery requests. Rega supplemented this motion on July 27, 2009. Defendants opposed the motion, and on August 31, 2009, Rega filed a reply.1 On October 26, 2009, Rega filed the instant petition for writ of mandamus seeking an order compelling the District Court to rule on his motion. Rega believes that the District Court’s delay is preventing Rega from obtaining evidentiary support for his claims necessary to respond to defendants’ anticipated motion for summary judgment.
II.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Before a writ of mandamus will issue, the petitioner must establish that the writ is not being used as a substitute for the regular appeals process, that there is no alternative remedy or other adequate means to obtain the desired relief, and that the right to the relief sought is “clear and indisputable.” Id. at 403, 96 S.Ct. 2119; see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005).
As a general rule, “matters of docket control and conduct of discovery” are within the sound discretion of the District Court. In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Nonetheless, mandamus may be warranted in cases where a district court’s delay is “tantamount to a failure to exercise jurisdiction.” Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996). This case, however, does not present such a situation. Rega filed his motion to compel on July 15, 2009, defendants’ responded, and Rega filed a reply on August 31, 2009. A delay of four months in the disposition of a motion to *248compel “does not yet rise to the level of a denial of due process,” and we are confident that the District Court will enter an order in due course. See Id. (holding that district court’s delay of four months did not warrant mandamus relief).
Accordingly, Rega’s mandamus petition will be denied. This denial is without prejudice to petitioner filing a new petition for writ of mandamus if the District Court does not act within 120 days of the date of this order.
. On the same date, Rega also filed a motion to compel responses to plaintiffs’ first and second set of interrogatories. That motion appears to be a separate motion to compel from the one at issue here.
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*249OPINION
PER CURIAM.
Dennis S. Sullivan appeals an order of the United States District Court for the Middle District of Pennsylvania granting motions to dismiss filed by two York County Assistant District Attorneys (“ADA”) and two Penn Township police officers, and dismissing claims brought against two state court judges. We will affirm.
On August 27, 2004, Sullivan was stopped in his vehicle by Penn Township Police Officer Merwede, who charged Sullivan with driving while under suspension, driving an unregistered vehicle, operating a vehicle without a valid inspection, and driving a vehicle without the required proof of financial responsibility. The next day, Sullivan was stopped by Penn Township Police Officer Behrendt and charged with the same violations. District Justice Miner found Sullivan guilty on all charges. Sullivan appealed to the Court of Common Pleas of York County, where he filed a “Sworn Motion to Dismiss on Undisputed Facts of Want of Subject Matter Jurisdiction” (“Motion to Dismiss”). Apparently, the Motion to Dismiss was based on Sullivan’s belief that the “Pennsylvania legislature has no authority to ... authorize arrest and imprisonment for violation^] of ... administrative law.” Assistant District Attorneys Yost and Sommer were assigned to the case. Judge Linebaugh held a de novo hearing, denied Sullivan’s Motion to Dismiss, and found him guilty of the traffic offenses. Sullivan unsuccessfully appealed to the Pennsylvania Superior Court.
Sullivan next filed suit in state court seeking damages from Judges Linebaugh and Miner, ADAs Yost and Sommer, and Officers Merwede and Behrendt. According to Sullivan, the defendants committed “misconduct in office and obstruction of justice” by acting without subject matter jurisdiction in the traffic offense proceedings. The Court of Common Pleas sustained the defendants’ preliminary objections and dismissed the complaint. The Commonwealth Court of Pennsylvania affirmed, holding that the judges, ADAs, and police officers were protected by immunity. The Pennsylvania Supreme Court denied Sullivan’s petition for allowance of appeal.
In April 2008, Sullivan filed a complaint in the United States District Court for the Middle District of Pennsylvania against the same six defendants, alleging that his state “Civil Tort was dismissed ... having never answered matter of want of Subject-matter-jurisdiction.” Sullivan claimed that because that case “proceeded without jurisdiction and therefore without authority” the defendants should be “required to answer ... for the civil tort.” The ADAs and police officers filed motions to dismiss. The matter was referred to a Magistrate Judge, who concluded that Sullivan’s claims were barred by the Rooker-Feldman doctrine and Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The District Court adopted the Report and Recommendation, granted the motions to dismiss, and dismissed the judges from the ease. Sullivan appealed.1
The Rooker-Feldman doctrine divests federal courts of jurisdiction “if the relief requested effectively would reverse a state court decision or void its ruling.” Taliaf-erro v. Darby Twp. Zoning Bd., 458 F.3d *250181, 192 (3d Cir.2006) (internal citations omitted). The doctrine occupies “narrow ground.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). It applies only where “the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment.” Id. at 291, 125 S.Ct. 1517.
Sullivan filed a Motion to Dismiss in the traffic offense proceedings, challenging the state courts’ exercise of jurisdiction. The Court of Common Pleas denied that motion, and Sullivan unsuccessfully appealed to the Superior Court. He next attempted to challenge the state court’s exercise of subject matter jurisdiction by filing a civil suit in state court. That claim was rejected by the Court of Common Pleas, the Commonwealth Court, and the Pennsylvania Supreme Court. Sullivan continues to challenge the state courts’ determinations concerning jurisdiction in the traffic offense proceedings. Ordering the relief he seeks, however, would require the District Court to effectively determine that the state courts’ jurisdictional determinations were improper. Therefore, Sullivan’s claims are barred by the Rooker-Feldman doctrine. To the extent Sullivan was not “appealing” to the District Court, but instead was attempting to relitigate issues previously determined by the Pennsylvania courts, review is barred by res judicata. See Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 310 (3d Cir.2009) (describing conditions in Pennsylvania under which collateral estop-pel will bar a subsequent claim).
For these reasons, we will affirm the judgment of the District Court.2
. We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s decision. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008); Whiteford v. Reed, 155 F.3d 671, 672 (3d Cir.1998) ("Application of the Rook-er-Feldman doctrine is a question of federal subject matter jurisdiction over which we exercise plenary review.”).
. Sullivan's "Motion requesting that admissions and interrogatories and answers or lack thereof be allowed as evidence in brief" and his "Motion Requesting a Hearing of Oral Argument” are denied.
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OPINION
PER CURIAM.
Rahim Caldwell, proceeding pro se, appeals an order of the United States District Court for the District of New Jersey dismissing his civil rights complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We will affirm.
In December 2008, Caldwell filed a complaint pursuant to 42 U.S.C. § 1983 against the Egg Harbor Police Department. His one-sentence complaint alleged that “the defendant ] violated his constitutional rights by falsely arresting plaintiff for asking for a lawyer, and other rights, false charges, bail, jail time, and making false identification of plaintiff with multiple photos and eating in front of plaintiff while laughing, and taunting plaintiff by waving food at plaintiff while laughing at plaintiff.” The District Court concluded that the Egg Harbor Police Department was not a “person” subject to liability under § 1983, dismissed the complaint without prejudice, and permitted Caldwell to cure the defect within 30 days. Caldwell did not file an amended complaint, however. Instead, he filed a notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n. 5 (3d Cir.1992); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223 (3d Cir.2007); Fed.R.Civ.P. 58. We exercise plenary review over the District Court’s sua sponte dismissal of the complaint. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). When reviewing a complaint dismissed under § 1915(e)(2)(B), we apply the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See id. In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), we are required to “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
“[A] municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Indeed, it is well-settled that, under § 1983, municipal liability arises only when a constitutional deprivation re-*252suits from an official custom or policy. Id. at 690-91, 98 S.Ct. 2018. Because Caldwell failed to identify any such customs or policies at the Egg Harbor Police Department, the District Court properly dismissed his complaint. Cf. Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir.1997) (holding that, for purposes of § 1983 claims, municipalities and police departments are treated as single entity); see also N.J. Stat. Ann. § 40A:14-118 (recognizing that police departments are created as executive and enforcement branches of government, whether as divisions, departments, or agencies of municipalities).
Caldwell argues that the District Court improperly dismissed his case “before [the] defendant ] [was] served and before plaintiff could file any motions.” Pursuant to § 1915(e)(2)(B), courts must sua sponte dismiss in forma pauperis actions that are frivolous or fail to state a claim. But before dismissing such an action for failure to state a claim, the District Court must grant leave to file an amended complaint, or explain why amendment would be futile. See Phillips, 515 F.3d at 245-46. In this case, the District Court notified Caldwell of the deficiencies in his complaint and provided him with an opportunity to file an amended complaint. He failed to take advantage of that opportunity, however, and he has offered no justification for his failure to do so. Cf. In re Westinghouse See. Litig., 90 F.3d 696, 703-04 (3d Cir.1996) (holding that district court did not abuse its discretion when it dismissed complaint with prejudice following plaintiffs decision not to amend). Therefore, we conclude that the District Court did not err.
For the reasons given, we will affirm the judgment of the District Court.
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OPINION OF THE COURT
FUENTES, Circuit Judge:
Plaintiffs appeal the District Court’s grant of Defendant’s motion for summary judgment on their claims under the Equal Credit Opportunity Act (“ECOA”), the Fair Housing Act (“FHA”), and the Ad*253ministrative Procedures Act (“APA”). For the following reasons, we will affirm the judgment of the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case.2 Plaintiffs filed this class action on January 10, 2000, alleging national origin discrimination in the United States Department of Agriculture’s administration of two rural housing loan programs. The class definition, as modified by this Court in a prior decision, includes:
All Virgin Islanders who applied or attempted to apply for, and/or received, housing credit, services, home ownership, assistance, training, and/or educational opportunities from the USDA through its Rural Development offices (and predecessor designations) located in the U.S. Virgin Islands at any time between January 1, 1981 and January 10, 2000.
Chiang v. Veneman, 385 F.3d 256, 274 (3d Cir.2004). Plaintiffs’ First Amended Complaint included six counts. Count I alleged discrimination prior to the distribution of loan applications. Count II alleged discrimination between distribution of the applications and the funding of loans. Count III alleged discrimination at or subsequent to the funding of loans. Counts IV and V included claims of discrimination under the FHA and the APA respectively. Finally, Count VI alleged a violation of the Equal Protection Clause.' However, this final count was effectively withdrawn by Plaintiffs when they failed to amend it to provide a more definite statement of their claim, as required by the District Court. On August 20, 2008, 2008 WL 3925260, the District Court granted Defendant summary judgment on all of the Plaintiffs’ claims.
II.
Plaintiffs raise five issues on appeal. First, they contend that the District Court erred in considering their ECOA “pattern or practice” discrimination claim as three separate claims. Second, they assert that the court erred in finding their claims were barred by the statute of limitations. Third, they challenge various elements of the court’s analysis of their discrimination claims. Fourth, they argue that the court erred in denying their Rule 56(f) motion to withhold a decision on summary judgment pending additional discovery. Fifth, they claim the court .erred by dismissing the entire action when the Plaintiffs’ individual claims were not at issue.3
Substantially for the reasons set forth in the District Court’s thorough and well-reasoned Memorandum and Order of August 20, 2008, this Court will affirm the District Court’s order granting summary judgment in favor of Defendant.
We briefly comment on one issue raised in the briefs. Contrary to Plaintiffs’ assertion that it is “the trial standard of proof,” the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), was appropriately applied by *254the District Court in the context of summary judgment. As we have declared: “Under [the McDonnell Douglas] analysis, the employee must first establish a prima facie case. If the employee is able to present such a case, then the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for its adverse employment decision. If the employer is able to do so, the burden shifts back to the employee, who, to defeat a motion for summary judgment, must show that the employer’s articulated reason was a pretext for intentional discrimination.” Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 364 (3d Cir.2008) (emphasis added).
We have considered the Plaintiffs’ other arguments on appeal and find them to be without merit. For the foregoing reasons, we will affirm the District Court.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. A more detailed discussion of the factual background in this case can be found in our prior decision on an interlocutory appeal challenging the grant of class certification, Chiang v. Veneman, 385 F.3d 256 (3d Cir.2004).
.We exercise plenary review over a district court’s summary judgment ruling. Township of Piscataway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007).
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OPINION OF THE COURT
PER CURIAM.
Daniel Alberto Sanez (“Sanez”) has filed a petition for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
I.
Sanez, currently age thirty-seven, is a native and citizen of Peru who entered the United States in 2001 on a non-immigrant visa and overstayed. In proceedings before the Immigration Judge (“IJ”), Sanez conceded his removability due to the overstay, and he applied for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and, alternatively, voluntary departure. Sanez purportedly fears a return to Peru because of his political ties and past activities as a television news producer and reporter.
Beginning in 1996, Sanez was employed as an executive producer at Frecuencia Latina, a Peruvian television station that aired news programming. At the time, the station was aligned with the then-President of Peru, Alberto Fujimori.1 However, in 1997, the station planned to air a story critical of the Fujimori administration, ultimately leading to the station’s chairman, Bai’uch Ivcher, being forced to leave Peru and stripped of his citizenship so that he could no longer own the station. Ivcher was replaced as chairman by Mendel Winter', a Fujimori supporter whose wife, Maria Tex’esa Braschi, was a reporter and program host at Frecuencia Latina.
With the station back in the Fujimori fold, Sanez and Braschi developed a stoxy prior to the 2000 presidential election that *256was critical of candidate Alejandro Toledo based on an allegation that Toledo had fathered an illegitimate child. Sanez thereafter received threatening phone calls at his office and death threats on his personal cell phone, presumably from Toledo supporters. Sanez also worked as a reporter covering the Toledo campaign. On one occasion, a crowd of Toledo supporters physically assaulted Sanez and other members of a Frecuencia Latina crew covering a Toledo rally. Sanez suffered no injury from the assault.
After Fujimori’s contested election victory in 2000, Toledo and his supporters allegedly launched a campaign of retaliation against employees of Frecuencia Latina. Moreover, Toledo supporters released a video showing a Fujimori government official accepting bribes. In the wake of the scandal that followed, Fujimori resigned and left Peru, and Toledo eventually was elected President.
In December 2000, Ivcher (the former chairman of Frecuencia Latina) returned to Peru with the support of Toledo and regained control of the station. Ivcher fired Sanez, Winter, and Braschi. Sanez allegedly was blacklisted as a “traitor” and unable to find employment in the television news business. Winter was tried and convicted in Peru on charges of taking bribes from Fujimori officials. Braschi moved to Ecuador but returned briefly to Peru in 2001 to support her husband’s trial defense, and also returned in 2005 to file for separation from her husband. Peruvian authorities never arrested or detained Braschi on her visits.
Sanez left Peru for the United States in March 2001, fearing that he would be detained and interrogated in Peru due to his role with Frecuencia Latina and his support for Fujimori. Sanez believes that the Peruvian government remains interested in indicting Braschi and therefore would be interested in interrogating Sanez to obtain information against Braschi, and that the current government, under President Alan Garcia, would persecute Sanez due to his past support for Fujimori.
Sanez filed his application for asylum in 2004, in support of which he submitted, inter alia, affidavits from Braschi and other former colleagues, and various reports attesting to the harassment of journalists in Peru. The IJ rejected the asylum application on the ground that it was untimely filed after the expiration of the one-year period in which to file. The IJ also held that Sanez failed to meet his burden of proof for withholding of removal or protection under the CAT. The IJ granted Sa-nez’s alternative request for voluntary departure.
The BIA dismissed Sanez’s appeal. It held that Sanez failed to prove past persecution because his claims of harassment, threats, and a single attack by supporters of Toledo do not rise to the level of harm necessary to constitute persecution. In addition, the firing of Sanez from his job by the new, pro-Toledo station owner did not amount to persecution, particularly in light of Sanez’s testimony that he could have found other work if he had stayed in Peru.
The BIA also found no clear probability of future persecution. It observed that Sanez is not similarly situated to other Peruvian journalists who have suffered harassment and intimidation. Sanez has never been arrested or interrogated, and the record does not reveal any ongoing threat to Fujimori supporters. The BIA noted that Winter was convicted of public corruption because he accepted money from the Fujimori government to air pro-Fujimori programs, and that Braschi, a known journalist and Fujimori supporter, visited Peru after Winter’s arrest and was not arrested. Thus, despite Sanez’s per*257sonal knowledge of his station’s involvement in public corruption, and his alleged knowledge regarding various politicians’ participation in that corruption, the BIA observed that no one from the Peruvian government, either under Toledo or currently under Garcia, has ever contacted Sanez. The BIA concluded that Sanez’s fear that he will be harmed upon return to Peru is ' “not supported by the record.” Appendix at 3. Finally, the BIA denied CAT relief, concluding that Sanez failed to show that it is more likely than not that he will be tortured in Peru. Like the IJ, the BIA entered a voluntary departure order. Sanez timely filed a petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Where, as here, the BIA issued its own decision, we review that decision, and not the decision of the IJ. Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008). The BIA’s conclusions regarding past persecution and the fear of future persecution are findings of fact, reviewed solely for “substantial evidence.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We also review the denial of CAT relief for substantial evidence. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003). Under the deferential substantial evidence standard, agency findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).
Sanez first contends that he was denied due process because the BIA allegedly failed to make an “individualized determination” of the record evidence supporting his claim for withholding of removal. Essentially, Sanez argues that the BIA failed to consider or rule upon each alleged instance of his past persecution, and failed to consider the evidence of past persecution as a whole and in connection with objective evidence of the persecution of journalists generally in Peru. As a result, Sanez contends, the BIA erred in concluding that he failed to prove eligibility for withholding of removal.
This Court has held that, for due process to be satisfied, an alien must receive, inter alia, an “individualized determination” of his interests. Abdulai v. Ashcroft, 239 F.3d 542, 550 (3d Cir.2001).2 Due process has been satisfied where there is “sufficient indicia” that the agency gave “particularized consideration” to the evidence of record. Id. We find no indication here of a due process violation. The BIA clearly considered the record evidence supporting the claim of past persecution, and it addressed Sanez’s various contentions regarding his fear of returning to Peru under the current Garcia administration, finding that fear was “not supported by the record.” Appendix at 3. While Sanez seeks to fault the BIA for failing to mention each piece of record evidence that he finds relevant to his case, due process does not require the BIA to offer such a detailed explication of its reasoning. See, e.g., Myat Thu v. Att’y Gen., 510 F.3d 405, 416 n. 16 (3d Cir.2007) (observing that “[cjonsideration of all evidence does not require comment on all evidence”).3 In short, we are satisfied that *258the BIA rendered the requisite individualized determination.
Moreover, substantial evidence supports the decision to deny withholding of removal. To prevail on this claim, Sanez had to show that he suffered past persecution on the basis of a protected ground, or that such persecution is more likely than not to occur in the future. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). With regard to past persecution, Sanez testified that he received death threats by telephone, that he was assaulted at a rally by Toledo supporters but not injured, and that he was fired from Frecuencia Latina and blacklisted after the station turned pro-Toledo. In addition, the evidence established that journalists have been interrogated and attacked in Peru, and that Winter, the former chairman of Frecuencia Latina, was tried and convicted for accepting bribes from the Fujimori government. This evidence does not compel a finding of past persecution.
While death threats can constitute persecution, such threats must be “so menacing as to cause significant actual suffering or harm.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir.2008) (quotation marks omitted); see also Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005) (explaining that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution”). There is no evidence that Sanez suffered significant actual suffering or harm from the anonymous threats that he received. Similarly, the lone physical assault at the Toledo rally resulted in no actual harm or injury. Finally, Sanez failed to show that his firing and blacklisting engendered economic restrictions so severe as to constitute persecution, particularly in light of his testimony that he could find another job in Peru (albeit not a job in television news reporting). Cf. Li, 400 F.3d at 168 (explaining that “deliberate imposition of severe economic disadvantage ... may constitute persecution” if it threatens life or freedom). Even viewed collectively, this evidence does not compel the conclusion that Sanez suffered persecution in the past.4
As to future persecution, Sanez testified that his former associates have been persecuted, and he argues that, contrary to the BIA’s finding, he is similarly situated to journalists who have been persecuted in Peru, making it likely that he will be persecuted upon return. Substantial evidence, however, supports the BIA’s conclusion that Sanez is not similarly situated to journalists who have been persecuted. Sanez was never arrested, interrogated, or persecuted while in Peru, and he has not established the existence of a current threat of persecution faced by journalists who, like Sanez, were Fujimori supporters. Furthermore, as the BIA noted, Winter was convicted of public corruption in Peru, and, despite Sanez’s unsupported suggestion to the contrary, the evidence in the record does not compel a conclusion that Winter’s conviction was a form of persecution rather than a proper prosecution for *259unlawful conduct. In addition, Braschi has since visited Peru, and the authorities have not questioned or detained her.5 On this record, we cannot disturb the BIA’s finding that Sanez failed to establish grounds for withholding of removal.
Finally, Sanez argues that the BIA erred in denying relief under the CAT because he believes that he likely will be tortured at the hands of the government, particularly when considering the evidence of violence against journalists. Petitioner’s Br. at 34-35. To prevail on his CAT claim, Sanez had to show, through objective evidence, that it is more likely than not that he will be tortured in Peru. See 8 C.F.R. § 208.16(c)(2); Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002). Torture is defined as the intentional infliction of severe pain or suffering “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). “[I]n order to obtain relief under the CAT, a petitioner must show that the alleged torturous acts by the government will be specifically intended, to inflict severe physical or mental pain or suffering.” Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.2008) (en banc) (quotation marks omitted).
Sanez relies upon the 2005 State Department Country Report on Human Rights Practices, noting evidence cited in the Report of the torture of detainees in Peru, as well as acts of violence against journalists. Petitioner’s Br. at 35. Sanez has not, however, established that he personally faces a likelihood of being detained or tortured by government officials upon his return. As the BIA noted, “the record does not indicate any ongoing threats to Fujimori supporters.” Appendix at 3. In addition, the evidence in the Country Report does not compel the conclusion that the current Peruvian government is likely to torture Sanez.
III.
For the foregoing reasons, we will deny the petition for review.
. The IJ characterized Frecuencia Latina as "formerly a financial puppet of Fujimori.'' Appendix at 118. Sanez himself acknowledged that the station illegally took money from the government in exchange for portraying Fujimori in a positive light and attacking opponents of the administration. Id. at 230-31.
. We review de novo the question whether Sanez was denied due process. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003).
. Moreover, the BIA made express reference in its decision to much of the evidence that Sanez complains was overlooked. For example, Sanez asserts that the BIA "failed to discuss why [Sanez] himself would differ from opposition journalists discussed in th[e] objective evidence” of record regarding the mistreatment of opposition journalists in Peru. *258Petitioner’s Br. at 20. The BIA, however, expressly found that the IJ “correctly determined that [Sanez] is not similarly situated to other journalists who, as described in the record, have suffered harassment and intimidation by the public and government.” Appendix at 3. This statement of its reasoning was plainly sufficient to survive due process scrutiny.
. As we have explained, persecution includes "threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but it “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). The events of which Sanez complains simply do not meet this narrow definition.
. Sanez suggests that Braschi’s relative prominence has insulated her from harm while visiting Peru, whereas he would have no such protection because he is a relatively obscure figure. Petitioner’s Br. at 30-31. But Bras-chi’s husband, Winter, was himself a prominent figure, and he was tried and convicted, which at least arguably suggests that prominence is not what has protected Braschi from harm.
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on David Ausburn’s appeal from a judgment resentencing him in this criminal case entered on October 9, 2008, following our remand on his earlier appeal in a precedential opinion. See United States v. Ausburn, 502 F.3d 313 (3d Cir.2007). Inasmuch as we set forth the circumstances of the case in our earlier opinion, we will not repeat at length what we said there and, instead, will set forth only the case’s most significant history. Ausburn pleaded guilty to a single count indictment charging him with a violation of 18 U.S.C. § 2422(b) by using a telephone and a computer to knowingly persuade, induce, entice and coerce a minor to engage in illegal sexual activity. The offense arose out of a relationship that Ausburn developed with a 14-year old girl and her family arising from his interaction with the family in his capacity as a detective and later as police chief of the West Homestead, Pennsylvania, police department. In those positions Ausburn ostensibly acted “as a role model and positive influence” in the life of the 14-year old girl. Ausburn, 502 F.3d at 316.
Ausburn’s base offense level under the Sentencing Guidelines was 24 to which the Court added two levels under U.S.S.G. § 2A3.2(b)(l) because the victim was in his custody, care, or supervisory control. The Court added another two levels under U.S.S.G. § 2A3.2(b) by reason of Aus-burn’s use of a computer as a means to coerce the prohibited sexual conduct. These enhancements increased his adjusted offense level to 28, but there was a 3-level decrease for acceptance of responsi*261bility resulting in a total offense level of 25. Inasmuch as Ausburn had no criminal offense history his criminal history category was I. Thus, his non-binding guideline sentencing range was 57 to 71 months. Nevertheless, the District Court, applying 18 U.S.C. § 3553(a), varied greatly from the non-binding range and imposed a 144-month sentence to be followed by a three-year term of supervised release.
On his original appeal Ausburn raised various contentions but we granted him relief only on the basis of his argument that the sentence was unreasonable. On that point we concluded that the District Court should resentence Ausburn because the Court failed to “provide a statement of reasons sufficient to allow” our review of whether the sentence “was reasonable under the circumstances.” 502 F.3d at 316. Thus, we neither approved nor disapproved the extent of the sentence.
In remanding we did not direct the Court to hear the parties again but it did so and thus they were able to present their positions in full on the resentencing, which they did. After hearing the parties, the Court again sentenced Ausburn to a 144-month custodial sentence but set forth in full detail the reasons for imposing that sentence. The Court made clear that its primary motivation in sentencing Ausburn to a 144-month custodial term was Aus-burn’s reprehensible abuse of his position and the harm he had done to the victim and her family by his criminal conduct. Ausburn has appealed again.
On this appeal Ausburn states the issue as follows:
This Court vacated the original sentence and remanded for resentencing because the record did not justify a sentence that was twice the top of the guideline range. On remand the District Court reimposed the same 144-month sentence, stating that it was warranted because Mr. Aus-burn was a policeman. But the District Court failed to explain why a guideline sentence, or even a lesser variance, would not suffice. It also improperly elevated one of the sentencing factors above all the others, when it focused exclusively on the fact that Mr. Ausburn was a policeman. Was the sentence procedurally erroneous and substantively unreasonable, and did it comply with this Court’s mandate?
Appellant’s br. at 2.
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review' the sentence for reasonableness under an abuse of discretion standard, United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005); United States v. Tom-bo, 562 F.3d 558, 564-65 (3d Cir.2009) (en banc).
There is no question but that the District Court complied with our mandate remanding the case for resentencing for it fully explained its reasons for imposing the sentence and it could have not given a fuller explanation of them. Clearly this is a case in which the District Court believed that Ausburn’s conduct required the imposition of a long custodial sentence both because of his abuse of his position of public trust and because of the harm that he had done. Ausburn’s contention that we vacated the sentence on his first appeal because “the record did not justify a sentence that was twice the top of the guideline range” is incorrect as we merely required the Court to explain in more detail the reason for it imposing the 144-month custodial sentence. Therefore even though we said that the “imposition of a 144-month term of imprisonment was unreasonable” we did so “because the District Court did not provide sufficient reasons in the record to justify its sentence.” *262Ausbum, 502 F.3d at 322. It therefore is clear that we explained on the original appeal that the District Court’s failure was procedural not substantive. Consequently, the substantial issue now before us is whether the sentence was unreasonable to the end that we can say that the Court abused its discretion in imposing it. After our study of the matter we cannot say that the Court did so.
We recognize that it is rare that a court will imposes a sentence more than double the top of the guideline range, but the facts here are extraordinary. Ausburn used his position of respect and authority within the community to insulate himself with the victim and her family ostensibly to befriend the victim while at the same time using the relationship to satisfy his illicit desires and thereby wound the victim and her family grievously. This case is one in which the District Court evidently believed that the 144-month custodial sentence was appropriate because of the need for a sentence “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2). While some courts might have imposed a lesser sentence than that the Court imposed here, we reiterate that we cannot say that 144 months was unreasonable.
The judgment of October 9, 2008, will be affirmed.
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SLOVITER, Circuit Judge,
Dissenting.
The sentencing regime under which we now operate gives discretion to the sentencing court to impose the sentence but leaves to the Court of Appeals the final decision on the reasonableness of the sentence. It is inevitable that within a panel of three circuit judges there may be one judge who has a different view of the reasonableness of a particular sentence than that of his or her colleagues. This is one such case.
I do not find any error of law in my colleagues’ opinion. I also agree with them that on resentencing the District Court did not fail to follow the mandate. As the opinion states, the District Court explained why it believed that this case warranted a sentence double the maximum suggested by the Sentencing Guidelines. The PSR stated that the Guideline range for defendant, based on a total offense level of 25 and a criminal history category of I, was 57 to 71 months. Judge Schwab imposed a sentence of 144 months. It is my belief that such a sentence is unreasonable, and I would not be fulfilling my obligation if I failed to so state.
The principal reason — and indeed the only reason given by the District Court for its extreme variance from the Guidelines— was that the defendant “used his authority as a police officer in his dealings with the victim,” who was a troubled young woman. App. at 145. The difficulty with this explanation is that the applicable Sentencing Guideline already takes into account a defendant’s position of authority.1 I agree with the Government that defendant’s conduct was reprehensible. It was not less so because the victim was a willing participant in the consensual sexual activity, and I would not be dissenting if there had been any suggestion of forcible contact. There wasn’t.
I see no reason why the defendant should be sentenced to 12 years in prison when the Guidelines are satisfied with half that amount. Therefore, I dissent.
. See U.S.S.G. § 2A3.2(b)(l) (2002) (providing for two-offense-level enhancement ”[i]f the victim was in the custody, care, or supervisory control of the defendant.”).
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OPINION
PER CURIAM.
Kevin Paul Woodruff appeals pro se from the District Court’s order denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. Because the appeal presents no substantial question, we will summarily affirm.
I.
Woodruff is a federal prisoner serving a 235-month sentence. In September 2005, while he was incarcerated at USP-Victor-ville, Woodruff received an incident report charging him with possession of a weapon and refusing an order. Woodruff requested that a videotape of the events be shown at his disciplinary hearing, but the Disciplinary Hearing Officer (“DHO”) denied the request, stating that the tape did “not focus on” Woodruff. The DHO found Woodruff guilty of possession of a weapon and assessed him a forty-day loss of good time credit, among other sanctions. In May 2006, while incarcerated at USP-Lewisburg, Woodruff received an incident report for refusing to provide a urine sample. At his hearing, Woodruff testified that he had already provided a sample for the month. He stated that he had questioned the officer about the type of sample he was being ordered to give, asked to speak with the Lieutenant, and stated that he was not refusing the order. The DHO found Woodruff guilty of interfering with staff, most like refusing to provide a urine sample, and assessed him forty-one days loss of good time credit.
Woodruff exhausted his administrative remedies and then filed the § 2241 habeas petition at issue here. He challenges the loss of good time credits as a result of both disciplinary findings, and claims that he was denied due process at both hearings. He also claims that he was transferred to the Special Management Unit in retaliation for filing administrative grievances and for racially motivated reasons, and that he was denied appropriate medical care. Finally, Woodruff asserts that the Bureau of Prisons has miscalculated his sentence by disallowing vested good time credits and by denying him prior custody credit. The District Court denied the petition by memorandum and order entered on March 12, 2009, 2009 WL 703200. On September 11, 2009, 2009 WL 2997005, the District Court denied Woodruffs timely motion for reconsideration.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. 2253(a). A certificate of appealability is not required to appeal from the denial of this § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009), We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
III.
Each of Woodruffs claims lack merit, substantially for the reasons explained by the District Court.
A. Disciplinary Violations
Federal prisoners have a liberty interest in statutory good time credits. See Vega, 493 F.3d at 317 n. 4 (citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. *2652963, 41 L.Ed.2d 935 (1974), and 18 U.S.C. § 3624(b)(1)). Thus, “[w]here a prison disciplinary hearing may result in the loss of good time credits, ... the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity ... to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (citing Wolff, 418 U.S. at 563-67, 94 S.Ct. 2963). In addition, the disciplinary decision must be supported by “some evidence,” meaning, “any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. at 455-56, 105 S.Ct. 2768.
The District Court correctly found that Woodruff received written notice more than twenty-four hours prior to each hearing, received a copy of the incident reports, and initially appeared before the Unit Disciplinary Committee at each prison. In each ease, he attended the hearing and had the opportunity to call witnesses, present evidence, and have a staff representative’s assistance. In each case, the DHO prepared a written record, documented his findings, and explained the sanctions imposed.
Woodruff argues that he was denied the opportunity to view and present an allegedly exculpatory videotape at the first disciplinary hearing at USP-Victor-ville. The DHO expressly addressed Woodruffs request regarding the videotape, stating that the tape did not focus on him. The DHO considered that an eyewitness officer reported that he observed Woodruff with a weapon in his hand, saw him hand it to another inmate who disposed of it, and then found two weapons in the area of similar size and description as the one alleged to have been in Woodruffs possession. Woodruff also admitted that he had approached the area of the altercation with the intent to break it up. As such, the District Court correctly determined that there was “some evidence” to support the DHO’s finding that Woodruff was in possession of a weapon.
As to the incident at USP-Lewis-burg, Woodruff told the correctional officer who ordered him to prove a urine sample that he had already given a monthly sample, and he requested that the Lieutenant be called to clarify the situation. Woodruff claims that his request did not constitute a refusal to provide a specimen. The DHO investigated Woodruffs argument, and found that he had not provided a sample for the month. The DHO concluded that when Woodruff refused to provide a specimen until he spoke with the Lieutenant, he interfered with the correctional officer as he attempted to perform his duties. Accordingly, the District Court properly determined that there was “some evidence” that Woodruff attempted to interfere with staff, most like refusing to provide a urine sample.
B. Special Management Unit Confinement
Woodruff claims that he was placed in the Special Management Unit in retaliation for filing administrative grievances and for racially motivated reasons. He further claims that he was denied adequate medical care for asthma while housed in the unit. We agree with the District Court that these claims are challenges to the conditions of Woodruffs confinement, rather than a challenge to the validity of his conviction or the length of his sentence. See Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.2002) (habeas relief is the appropriate remedy “where the deprivation of rights is such that it necessarily impacts the fact or length of detention”). *266We thus agree that these claims would be appropriately brought in an action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and that they are not cognizable in a habeas petition. See Leamer, 288 F.3d at 542-44.
C. Computation of Sentence
Woodruff claims that the Bureau of Prisons (“BOP”) miscalculated his sentence by denying him prior custody credit for time served in California state custody following a state parole revocation. He also argues that the BOP improperly disallowed good time credit following two disciplinary incidents in 1998, which occurred while he was in federal custody, but prior to sentencing. Finally, he contends that his good time credits earned prior to 2005 were “vested” and irrevocable. He asserts that a proper calculation of his sentence would result in his immediate release, and he seeks monetary damages.
When Woodruff was sentenced on July 14, 1998, the sentencing court directed that he was not to receive credit for time in state custody on a parole hold. He received credit for the period that began when his sentence for a California state parole violation ended and ended when he was sentenced for his federal conviction. The District Court correctly rejected Woodruffs claim relating to prior custody credit. Pursuant to 18 U.S.C. § 3585(b), Woodruff is not entitled to credit for time spent in state custody prior to his federal sentence that was credited to his state sentence. See Vega, 493 F.3d at 314 (time credited against a state parole violation sentence is not properly credited toward a federal sentence).
Woodruff next claims that he is entitled to credit restoration because he was sentenced under the Sentencing Reform Act (“SRA”). The District Court found that Woodruffs offense was committed while the SRA was in effect. Under the SRA, Woodruff is eligible to receive fifty-four days of good time credit per year, awarded at the end of each year on his “anniversary date.” See 18 U.S.C. § 3624(b) (1991). The BOP has fifteen days from the anniversary date to subtract good time credits as the result of disciplinary proceedings and award the remainder days, which then vest. Id. Once good time credits have vested, they may be withdrawn only under very limited circumstances. Id. The District Court examined each disciplinary incident for which the BOP disallowed Woodruff good time credits, and correctly determined that in each case, the good time credits were denied in the appropriate year and no vested credits were disallowed. In Woodruffs July 2005 to July 2006 term, the BOP imposed eighty-one days of good time credit loss as the result of disciplinary violations, but disallowed only the maximum fifty-four days at the end of that term. Accordingly, the District Court properly concluded that Wood-ruff is not entitled to any credit restoration.
IV.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cm. I.O.P. 10.6.
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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/8476924/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Domingo Carrion-Brito appeals from a February 15, 2008 judgment of the United *268States District Court for the Middle District of Pennsylvania sentencing him to 256 months imprisonment and requiring him to pay a $3,000.00 fíne. For the following reasons, we will affirm.
I. Background
On October 18, 2006, Carrion-Brito was indicted with three co-defendants for conspiracy to distribute heroin and for possession of heroin with the intent to distribute. Carrion-Brito was subsequently charged in a superseding information with one count of conspiracy to manufacture, distribute, and possess with the intent to manufacture and distribute heroin, in violation of 21 U.S.C. § 846. He also faced a criminal forfeiture count. The superseding information was based on his purchase of kilogram quantities of heroin and preparation and sale of smaller quantities of heroin for distribution. He was further charged in a separate indictment with making false statements in a passport application, in violation of 18 U.S.C. § 154, and with aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l).1 On August 31, 2007, Carrion-Brito pled guilty to both counts of the superseding information and both counts of the indictment.
A pre-sentence report (“PSR”) was prepared and, after several objections, a second revised PSR was submitted to the Court on February 4, 2008.2 The PSR determined that, pursuant to the 2007 version of the Guidelines, Carrion-Brito’s offense level was 43 and, based on his criminal history, he should be sentenced as a career offender. The PSR also indicated that Carrion-Brito has no assets, debts, income, or living expenses and that, “although [he] may not be able to pay a fíne immediately, it is believed that through the Inmate Financial Responsibility Program, he can pay a fíne below the guideline range in installments.”3 (PSR at 15, ¶ 70.)
On February 15, 2008, the Court held a sentencing hearing. The government and Carrion-Brito informed the Court that they had reached an agreement concerning remaining objections to the PSR. Pursuant to that agreement, Carrion-Brito’s total offense level would be 34 and his criminal history category would be IV, resulting in a Guidelines range of 210 to 262 months on count one of the superseding information, to be followed by a mandatory consecutive two-year sentence on count two of the indictment. The parties also stipulated that the amount of heroin involved in Carrion-Brito’s case was one to three kilograms.
The Court reluctantly accepted the parties’ joint agreement, making clear that it had been inclined to agree with the probation officer’s initial calculation under the Guidelines. At Carrion-Brito’s request, defense counsel brought to the Court’s attention that, in connection with CarrionBrito’s cooperation with law enforcement, “[a] police officer had ... led [CarrionBrito] to believe that he could expect to receive the same or a similar sentence as his co-defendants.”4 (App. at 94a.) Car*269rion-Brito apparently felt misled and hoped that the Court would consider that perceived injustice in sentencing him, despite the fact that counsel had explained to him that no law enforcement officer could tell a defendant what sentence he would receive.
The Court then personally addressed the defendant, stating “Mr. Carrion-Brito, you have a right to speak in your own behalf, and the decision is entirely yours. You can tell me anything you want to say about what you think the proper sentence in this case would be.” (App. at 99a.) Carrion-Brito, addressing the Court, accepted responsibility for his actions and then reiterated defense counsel’s statements concerning the police officer’s alleged misrepresentation regarding the sentence to be imposed. The Court, clearly concerned with Carrion-Brito’s rights, told Carrion-Brito that if he was claiming that his plea was based on misleading information he could withdraw it. The Court also ensured that he had pled guilty with the understanding that the Court could impose upon him any lawful sentence regardless of what he might have been told by the police officer. Carrion-Brito responded that he did not wish to withdraw his plea but that he simply wanted to make the Court aware of what had happened.
The Court then asked Carrion-Brito, “[i]s there anything you want to tell me about yourself that I should know in deciding your sentence? If you would prefer to speak in Spanish, Professor Diaz will translate for you.” (App. at 103a.) Defense counsel, responded, asking the Court to consider a letter. The Court agreed to read the letter5 and then asked, “[anything else for the defendant?” Defense counsel responded in the negative.
At that point, the government moved for a downward departure on account of Carrion-Brito’s cooperation. The Court granted the motion and departed downward by 30 months, bringing the Guidelines range to 180 to 232 months followed by a mandatory 24-month sentence on count two of the indictment. Carrion-Bri-to argued that he should be sentenced at the bottom end of that range.
After considering the factors enumerated in 18 U.S.C. § 3553(a), the Court sentenced Carrion-Brito to a total of 256 months imprisonment comprised of 232 months imprisonment on count one of the superseding information, 120 months imprisonment on count one of the indictment to run concurrently, and a consecutive term of 24 months on count two of the indictment. The Court concluded that Carrion-Brito should be sentenced at the top of the Guidelines range because, first, he had previously received the benefit of leniency when he was sentenced by a different judge for a different offense but then, within less than a year of his release, was arrested again in this case; second, based on his criminal history, he is a “classic career offender”; and third, he benefit-ted significantly from the plea bargain. Additionally, the Court found “that the *270defendant has the ability to pay a fine below the guideline range” and ordered Carrion-Brito to pay a $3,000 fine on count one of the superseding information. Judgment was entered, and Carrion-Brito timely appealed.
II. Discussion6
Carrion-Brito raises two issues on appeal. First, he argues that the District Court erred by denying him the full extent of his right of allocution and that he is therefore entitled to resentencing. Second, he argues that the District Court erred by failing to make specific findings concerning his ability to pay a below-Guidelines fine.
We review for plain error because Carrion-Brito did not advance those arguments before the District Court. See United States v. Adams, 252 F.3d 276, 285-86 (3d Cir.2001); United States v. Torres, 209 F.3d 308, 313 (3d Cir.2000). In order to establish plain error, a defendant must show “(1) there was an error, i.e., a deviation from a legal rule, (2) that the error was ‘plain,’ i.e., clear or obvious, and (3) that the error affected his substantial rights.” United States v. Corso, 549 F.3d 921, 928 (3d Cir.2008). Even if those three criteria are met, a defendant still must establish that our failure to correct the error would result in a miscarriage of justice, that is, the error seriously affected “the fairness, integrity or public reputation of judicial proceedings.” Id. at 929 (internal quotations omitted).
A. The District Count Did Not Deny Carriorir-Bnto His Right to Allo-cute
Carrion-Brito asserts that he is entitled to resentencing because the District Court only partially allowed him to allocute. Specifically, he claims that, even though he had the opportunity to speak to the Court concerning his sentence, his “right of allocution was partly denied ... when trial counsel answered a follow-up question by the district court, which attempted to elicit further allocution from the defendant.” (Appellant’s Op. Br. at 20-21.) According to Carrion-Brito, the Court should have “insist[ed] that the defendant personally answer the question the court had asked him.” {Id. at 22.)
Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires a court, prior to sentencing a defendant, to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence[.]” In United States v. Adams, on which Carrion-Brito predominately relies, we vacated the defendant’s sentence and remanded for resentencing because the district court failed to comply with that rule.7 252 F.3d 276, 277 (3d Cir.2001). The district court in that case asked defense counsel whether his client sought to allocute, and the court *271accepted counsel’s reply in the negative, without ever personally addressing the defendant. Id. at 278. We concluded that the district court erred because the court’s “query, directed towards counsel, does not satisfy the requirement that the district court personally address the defendant himself.” Id. at 279.
In the present case, unlike Adams, the District Court personally addressed the defendant, specifically informed him of his right to share with the Court any information concerning his belief as to the appropriate sentence, and afforded him an opportunity to present such information. That is all that Rule 32 requires. Indeed, Carrion-Brito took the opportunity to reiterate his counsel’s discussion of the alleged representation made to him by a policeman, intimating that he wanted the Court to consider that information when sentencing him. The District Court then engaged the defendant in conversation on that issue, clarifying that he still sought to plead guilty and that he understood that the Court was not bound by any alleged misstatement. The Court’s subsequent follow-up question to Carrion-Brito was evidently an attempt by the Court to be comprehensive, and we do not find any error in the proceedings merely because Carrion-Brito allowed his lawyer to answer the question. In sum, the District Court had already afforded Carrion-Brito the right of allocution by personally addressing him and allowing him to speak on his own behalf concerning his sentence.8
B. The District Court Did Not Commit Plain Error in Imposing a Fine
Carrion-Brito also argues that the
“district court committed plain error because it did not make any specific findings as to the defendant’s ability to pay the $3,000 [fine]; rather, the court’s only finding was that the defendant could pay a fine ‘below the guideline range.’ ” (Appellant’s Op. Br. at 85 (quoting App. at 112a).)
Section 5E1.2 of the United States Sentencing Guidelines requires a court to “impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine.” U.S.S.G. § 5E1.2(a) (2007). A sentencing court must consider several factors in determining the amount of any such fine, among them, “any evidence presented as to the defendant’s ability to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources.” Id. § 5E1.2(d); see also 18 U.S.C. § 3572(a); Torres, 209 F.3d at 313. The defendant bears the burden of establishing that he or she is incapable of paying a fine. Torres, 209 F.3d at 312. A district court is required to make findings “regarding a defendant’s ability to pay a fine or ... a factual record [must] be created such that it can be said that the Court considered the issue.” Id. at 313. The “requirement of specific findings will be satisfied if the District Court adopts a PSR which contains adequate factual findings with reference to an ability to pay such that there can be effective appellate review.” Id.
The PSR notes that Carrion-Brito had been employed sporadically in jobs that paid from $8.00 an hour to $13.50 an hour. As to Carrion-Brito’s ability to pay a fine, the PSR indicated that he has no assets or *272debts, no credit history, no income or living expenses, that he did not file tax returns for the years 2003 through 2006, and that, pursuant to his plea to count two of the superseding information, he agreed to the forfeiture of three vehicles and some cash that had been seized in connection with the investigation. The PSR further states that “[a]lthough the defendant may not be able to pay a fine immediately, it is believed that through the Inmate Financial Responsibility Program, he can pay a fine below the guideline range in installments.” (PSR at 15, ¶ 70.) Carrion-Brito did not object to those aspects of the PSR.
The District Court ordered Carrion-Bri-to to pay a fine of $3,000 on count one of the superseding information, based on its “find[ing] that the defendant has the ability to pay a fine below the guideline range.” (App. at 112a-13a.) However, the Court found that Carrion-Brito did not have the ability to pay interest. The Court ordered that the fine and special assessments be paid within three years of Carrion-Brito’s release from custody.
Even assuming that the District Court erred in imposing a $3,000 fine without expressly adopting the PSR or otherwise stating a basis for its finding,9 such error did not affect Carrion-Brito’s substantial rights because the PSR supports his ability to pay a below-Guidelines fine through the Inmate Financial Responsibility Program and through gainful employment after his release. See Torres, 209 F.3d at 313 (“[Wjhere ... a defendant, whose burden it was to prove his or her inability to pay by a preponderance of the evidence, made utterly no showing in that regard and took no issue with facts of record showing an ability to pay, error sufficient to warrant relief must be very plain, indeed.”). Carrion-Brito never objected to those aspects of the PSR. Indeed, he did not argue before the District Court, and he does not now argue on appeal, that he is incapable of paying the $3,000 fine. Accordingly, there is no basis for concluding that his substantial rights have been affected or that a miscarriage of justice would result if we permit the fine to stand. See United States v. Demes, 941 F.2d 220, 224 (3d Cir.1991) (“We recognize that a court’s omission of a conclusion as to a defendant’s ability to pay a fine might be harmless if it is clear that the defendant did have the ability to pay the fine imposed.”).
C. Other Issues
Carrion-Brito asserts five additional issues on appeal: (1) whether there exists a factual basis for his conviction for aggravated identity theft; (2) whether the District Court erred in failing to consider the law enforcement officer’s prediction as to his likely sentence; (3) whether the District Court erred in failing to consider the disparity between his sentence and those of his co-defendants; (4) whether the Distinct Court erred in failing to meaningfully consider the § 3553(a) factors; and (5) whether the District Court erred by sentencing him at the top of the Guidelines range. Defense counsel, in his thorough discussion of those issues, has presented them in the style of an Anders brief, explaining why the arguments are frivolous but indicating that he has raised them at his client’s insistence. Accordingly, we will review the remaining issues as we would an Anders brief, asking whether counsel has thoroughly examined the record for appealable issues and has explained why any such issues are frivolous, and whether an independent review of the record presents any non-frivolous issues. *273See United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
The record establishes that the District Court complied with proper sentencing procedure under United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006), and imposed a reasonable sentence. Additionally, the record establishes that a factual basis exists for Carrion-Brito’s aggravated identity theft conviction, namely he purchased the name Jose Miguel Casas-Velilla from Mr. Casas-Velilla for $200 and used the name to obtain a passport. See Flores-Figueroa v. United States, — U.S. -, 129 S.Ct. 1886, 1888, 173 L.Ed.2d 853 (2009) (holding that conviction for aggravated identity theft requires finding “that the defendant knew that the means of identification he or she unlawfully transferred, possessed, or used, in fact, belonged to another person” (internal quotations omitted)); United States v. Cefaratti, 221 F.3d 502, 509 (3d Cir.2000) (explaining that a court may ascertain the factual basis for a plea “by looking to the defendant’s own admissions, the government’s proffer of evidence, the presentence report, or whatever means is appropriate in a specific ease-so long as the factual basis is put on the record.” (internal quotations omitted)). In short, Carrion-Brito’s remaining arguments are indeed frivolous, as his able counsel has rightly acknowledged.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of conviction and sentence imposed on Carrion-Brito by the District Court.
. The indictment was filed in the United States District Court for the Eastern District of Pennsylvania, but was transferred to the Middle District of Pennsylvania pursuant to Federal Rule of Criminal Procedure 20.
. For simplicity, all references to the PSR will refer to the second revised PSR.
. The Guidelines fine range was $25,000 to $1,000,000.
.Co-defendants Luis Castro-Castillo and Fernando Lois were charged in separate superseding informations with the same crimes with which Carrion-Brito was charged in his superseding information. They both pled guilty. In both co-defendants' cases, the amount of heroin involved was 60 to 80 grams, in comparison to the kilogram quantities involved in the present case. Additionally, at the plea hearings for Castro-Castillo *269and Lois, the prosecutor identified Carrion-Brito as the head of the operation. The Court sentenced Castro-Castillo to 30 months imprisonment, the bottom end of his Guidelines range, taking into account his “somewhat limited involvement [in the offense], his obvious drug addiction, his family history, and his lack of prior criminal involvement.” (App. at 181a-82a.) The Court sentenced Lois to 34 months imprisonment, the middle of his Guidelines range, taking into account his lack of a significant prior criminal history, among other things. Ariel Valeria-Urena, the third co-defendant, was a fugitive as of the date the PSR was filed.
. The letter is not part of the record on appeal.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Carrion-Brito filed his appeal on February 25, 2008, even though the District Court did not enter judgment on the docket until March 3, 2008. Although his appeal was premature, we have jurisdiction because the appeal ripened upon the District Court's entry of judgment. See FED. R. APP. P. 4(b)(2) ("A notice of appeal filed after the court announces a decision, sentence, or order-but before the entry of the judgment or order-is treated as filed on the date of and after the entry.”); see also United States v. Console, 13 F.3d 641, 649 n. 3 (3d Cir.1993) ("[Defendant] appealed on the day of the sentencing but before the judgment was entered. We nevertheless have jurisdiction.”).
. At the time Adams was decided, the requirements of Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) were located at Federal Rule of Criminal Procedure 32(c)(3)(A).
. Because we conclude that Carrion-Brito was not deprived of his right to allocute, we need not address the issue raised by Carrion-Brito concerning the letter given to the Court by defense counsel at sentencing, namely whether, "[ajssuming that the letter could be the functional equivalent of allocution ... [,] is there anything in the record which shows that the court had read the letter by the time it imposed sentence?” (Appellant’s Op. Br. at 22.)
. Given our disposition of this issue, we need not determine whether there was error, but we note our skepticism at the claim that there was.
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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/8476926/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Aaron C. Boring and Christine Boring appeal from an order of the United States District Court for the Western District of Pennsylvania dismissing their complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we affirm in part and reverse in part.
I. Background
On April 2, 2008, the Borings commenced an action in the Court of Common Pleas of Allegheny County, Pennsylvania against Google, Inc., asserting claims for invasion of privacy, trespass, injunctive relief, negligence, and conversion. The Bor-.ings sought compensatory, incidental, and consequential damages in excess of $25,000 for each claim, plus punitive damages and attorney’s fees.
The Borings’ claims arise from Google’s “Street View” program, a feature on Google Maps1 that offers free access on the Internet to panoramic, navigable views of streets in and around major cities across the United States. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street. According to Google, “[t]he scope of Street View is public roads.” (Appellee’s Ans. Br. at 10.) Google allows individuals to report and request the removal of inappropriate images that they find on Street View.
The Borings, who live on a private road in Pittsburgh, discovered that Google had taken “colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization.” (App. at A81.) They allege that their road is clearly marked with a “Private Road, No Trespassing” sign (Appellants’ Op. Br. at 11), and they contend that, in driving up their road to take photographs for Street View and in making those photographs available to the public, Google “disregarded [their] privacy interest.” (Id.)
On May 21, 2008, Google invoked diversity jurisdiction, removed the action to the United States District Court for the Western District of Pennsylvania, and filed a motion to dismiss. The Borings then filed an amended complaint, substituting a claim for unjust enrichment for their earli*277er conversion claim.2 On August 14, 2008, Google again moved to dismiss the Borings’ complaint for failure to state a claim.
On February 17, 2009, the District Court granted Google’s motion to dismiss as to all of the Borings’ claims. The Court dismissed the invasion of privacy claim because the Borings were unable to show that Google’s conduct was highly offensive to a person of ordinary sensibilities. Boring v. Google, Inc., 598 F.Supp.2d 695, 699-700 (W.D.Pa.2009). The Court dismissed the negligence claim because it found that Google did not owe a duty to the Borings. Id. at 701. In dismissing the trespass claim, the Court held that “the Borings have not alleged facts sufficient to establish that they suffered any damages caused by the alleged trespass.” Id. at 702. The Court found the unjust enrichment claim wanting because the parties had no relationship that could be construed as contractual and the Borings did not confer anything of value upon Google. Id. at 703. The Court also held that the Borings had failed to plead a plausible claim for injunctive relief under Pennsylvania’s “demanding” standard for a mandatory injunction, and dismissed the punitive damages claim because the Borings failed to “allege facts sufficient to support the contention that Google engaged in outrageous conduct.” Id. at 701 n. 3, 704. In sum, the Court concluded that the Borings “failed to state a claim under any count” and that “any attempted amendment would be futile.” Id. at 698, 704 n. 8.
The Borings moved for reconsideration, asserting that it was error to dismiss their trespass and unjust enrichment claims, as well as their request for punitive damages. The District Court denied the motion. Boring v. Google, Civ. A. No. 08-694, 2009 WL 931181 (W.D.Pa. Apr. 6, 2009). The Court again said that the Borings had failed to allege conduct necessary to support a punitive damages award. 2009 WL 931181, at *2. It also declined to reconsider the dismissal of the unjust enrichment claim because the Borings did not point to any flaw in the Court’s disposition of that claim. Id. Finally, the Court addressed the Borings’ trespass claim only to “eliminate any possibility that the language in [its opinion] might be read to suggest that damages are part of a prima facie case for trespass.” Id., at *1. To clarify, the Court explained that it had dismissed the trespass claim because the Borings had “failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of the trespass” and because they failed to request nominal damages in their complaint. Id., at *1.
The Borings filed a timely notice of appeal from both the District Court’s order granting the motion to dismiss and the subsequent denial of their motion for reconsideration.
II. Discussion3
A. Standard of Review
We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid *278dismissal, the complaint must set forth facts that raise a “plausible inference” that the defendant inflicted a legally cognizable harm upon the plaintiff. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1952, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (explaining that a plaintiff must “identify!] facts that are suggestive enough to render [his claim] plausible”); Phillips, 515 F.3d at 234 (stating that “a plaintiff must ‘nudge [his or her] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss”) (citations omitted). Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”). We must disregard “formulaic recitation of the elements of a cause of action....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir.2008). Legal conclusions receive no such deference, and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papas an v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (cited with approval in Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted)). Although a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct.” Iqbal, 129 S.Ct. at 1950. In short, when the well-pleaded complaint does not permit us “to infer more than the mere possibility of misconduct,” the pleader is not entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949).
On appeal, the Borings contend that the District Court erred in dismissing their invasion of privacy, trespass, unjust enrichment, and punitive damages claims, as well as their request for injunctive relief. We address each claim in turn.
B. Invasion of Privacy
Pennsylvania law recognizes four torts under the umbrella of invasion of privacy: “[1] unreasonable intrusion upon the seclusion of another; [2] appropriation of another’s name or likeness; [3] unreasonable publicity given to another’s private life; and [4] publicity that unreasonably places the other in a false light before the public.” See Burger v. Blair Med. Assocs., Inc., 600 Pa. 194, 964 A.2d 374, 376-77 (2009) (citing Restatement (Second) of ToRts §§ 652B-E (1977)). The District Court treated the Borings’ complaint as asserting claims for both intrusion upon seclusion and publicity to private life, and it held that the complaint failed to state a claim for either, focusing on the lack of facts in the complaint to support a conclusion that the Street View images would be highly offensive to a reasonable person. The Borings contend that the District Court was wrong to decide, on a 12(b)(6) motion to dismiss, that “a reasonable person would not be highly offended” after having discovered, as the Borings did, that someone “entered onto secluded private property [and] took 360 [degree] pictures .... ” (Appellants’ Op Br. at 19.)
i. Intrusion upon Seclusion
To state a claim for intrusion upon seclusion, plaintiffs must allege conduct *279demonstrating “an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and aver sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.” Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (2002) (citations omitted). Publication is not an element of the claim, and thus we must examine the harm caused by the intrusion itself. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir.1992).
No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there. The Restatement cites knocking on the door of a private residence as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. See Restatement (Second) of ToRts, § 652B cmt. d. The Borings’ claim is pinned to an arguably less intrusive event than a door knock. Indeed, the privacy allegedly intruded upon was the external view of the Borings’ house, garage, and pool — a view that would be seen by any person who entered onto their driveway, including a visitor or a delivery man. Thus, what really seems to be at the heart of the complaint is not Google’s fleeting presence in the driveway, but the photographic image captured at that time. The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive.4
Significantly, the Borings do not allege that they themselves were viewed inside their home, which is a relevant factor in analyzing intrusion upon seclusion claims. See, e.g., Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875, at *26 (W.D.Pa. Mar. 24, 2008) (holding that no reasonable person would find the fact that defendant entered into plaintiffs condominium to speak with a third party highly offensive because plaintiff was not in the condominium at the time), aff'd, 310 Fed.Appx. 526 (3d Cir.2009); GTE Mobilnet of S. Texas Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 618 (Tex.App.2001) (finding that “the mere fact that maintenance workers ... look[ed] over into the adjoining yard is legally insufficient evidence of highly offensive conduct.”).
The Borings suggest that the District Court erred in determining what would be highly offensive to a person of ordinary sensibilities at the pleading stage, but they do not cite to any authority for this proposition. Courts do in fact, decide the “highly offensive” issue as a matter of law at the pleading stage when appropriate. See, e.g., Diaz v. D.L. Recovery Corp., 486 F.Supp.2d 474, 475-480 (E.D.Pa.2007) (denying defendant’s motion to dismiss as to plaintiffs invasion of privacy claim because allegations that debt collector called debtor at her home stating he would “repossess all of her household belongings and even her car” stated a claim for invasion of privacy). The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google’s conduct in light of the Borings’ public filing of the present lawsuit. However, the District Court’s comments came after the Court had already concluded that Google’s conduct would not be highly offensive to a person of ordinary sensibilities. Thus, the Court *280properly applied an objective standard in deciding whether the conduct was highly offensive.5
In sum, accepting the Borings’ allegations as true, their claim for intrusion upon seclusion fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
ii. Publicity Given to Private Life
To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is “(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.” Harris by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 483 A.2d 1377, 1384 (1984) (citing Restatement (Second) of Torts § 652D). For the reasons just described with respect to the intrusion upon seclusion claim, we agree with the District Court that the Borings have failed to allege facts sufficient to establish the third element of a publicity to private life claim, i.e., that the publicity would be highly offensive to a reasonable person. It is therefore unnecessary to address the other three prongs.6
In conclusion, accepting the Borings’ allegations as true, their claim for publicity given to private life fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
C. Trespass
The District Court dismissed the Bor-ings’ trespass claim, holding that trespass was not the proximate cause of any compensatory damages sought in the complaint and that, while nominal damages are generally available in a trespass claim, the Borings did not seek nominal damages in their complaint. While the District Court’s evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous.
Trespass is a strict liability tort, “both exceptionally simple and exceptionally rigorous.” Prosser on Torts at 63 (West, 4th ed.1971). Under Pennsylvania law, it is defined as an “unprivileged, intentional intrusion upon land in possession of another.” Graham Oil Co. v. BP Oil Co., 885 F.Supp. 716, 725 (W.D.Pa.1994) (citing Kopka v. Bell Tel. Co., 371 Pa. 444, 91 A.2d 232, 235 (1952)). Though claiming not to have done so, it appears that the District Court effectively made damages an element of the claim, and that is problematic, since “[o]ne who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.” *281Restatement (Second) Torts § 163; see also Corr. Med. Care, Inc. v. Gray, Civ. A. No. 07-2840, 2008 WL 248977, *11 (E.D.Pa. Jan. 30, 2008) (holding that a complaint alleging that defendants entered into plaintiffs’ home on specified dates was “sufficient to survive a motion to dismiss under Pennsylvania trespass law.”).
Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential.7 Cf. 1 Stein on Personal Injury Damages § 1.3 (3d ed.2009) (“harm is not a prerequisite to a cause of action [for trespass,] and nominal damages can be awarded [even though] there has been and will be no substantial harm.”); 75 Am.Jur.2d Trespass § 112 (2009) (“[I]n the absence of proven or actual damages, plaintiffs are entitled to nominal damages in an action for trespass.” (citations omitted)). It was thus improper for the District Court to dismiss the trespass claim for failure to state a claim. Of course, it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.8 For now, it is enough to note that they “bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage” C & K Coal Co. v. United Mine Workers of Am., 537 F.Supp. 480, 511 (W.D.Pa.1982), rev’d in part on other grounds, 704 F.2d 690, 699 (3d Cir.1983), if they want more than a dollar.
D. Unjust Enrichment
To succeed on a claim of unjust enrichment, a plaintiff must allege facts sufficient to establish “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Lackner v. Glosser, 892 A.2d 21, 34 (Pa.Super.Ct.2006) (quotation omitted). Typically, with an unjust enrichment claim, a “plaintiff seeks to recover from defendant for a benefit conferred under an unconsummated or void contact,” and the law then implies a quasi-contract which requires the defendant to compensate the plaintiff for the value of the benefit conferred. See Steamfitters Local Union No. 4-20 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir.1999) (citations omitted); Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 998-99 (3d Cir.1987).
The District Court dismissed the Bor-ings’ unjust enrichment claim after finding that they had not alleged any relationship *282between themselves and Google that could be construed as contractual, and because “it cannot be fairly said that the Borings conferred anything of value upon Google.” (App. at A12-A13.) The Court further held that the unjust enrichment claim failed because the Borings had not adequately alleged any other tort, and Pennsylvania does not recognize unjust enrichment as a stand-alone tort.
We agree that the facts alleged by the Borings provide no basis for an unjust enrichment claim against Google. The complaint not only fails to allege a void or unconsummated contract, it does not allege any benefit conferred upon Google by the Borings, let alone a benefit for which the Borings could reasonably expect to be compensated. The complaint alleges that Google committed various torts when it took photographs of the Borings’ property without their consent. The complaint does not allege, however, that the Borings gave or that Google took anything that would enrich Google at the Borings’ expense. An unjust enrichment “claim makes sense in cases involving a contract or a quasi-contract, but not, as here, where plaintiffs are claiming damages for torts committed against them by [the] defendant ].”9 Romy v. Burke, No. 1236, 2003 WL 21205975, at *5 (Pa. Com. Pl. Philadelphia May 2, 2003).
E. Injunctive Relief
Pennsylvania law provides that in order to establish the right to injunctive relief, a plaintiff must “establish that his right to relief is clear, that an injunction is necessary to avoid an injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested.” Kuznik v. Westmoreland County Bd. of Comm’rs, 588 Pa. 95, 902 A.2d 476, 489 (2006) (citing Harding v. Stickman, 823 A.2d 1110, 1111 (Pa.Commw.Ct.2003)). An injunction is an extraordinary remedy. See Ambrogi v. Reber, 932 A.2d 969, 974 (Pa.Super.Ct.2007).
The District Court held that the complaint failed to set out facts supporting a plausible claim of entitlement to injunctive relief. We agree that the Borings have not alleged any claim warranting injunctive relief. The complaint claims nothing more than a single, brief entry by Google onto the Borings’ property. Importantly, the Borings do not allege any facts to suggest injury resulting from Google’s retention of the photographs at issue, which is unsurprising since we are told that the allegedly offending images have long since been removed from the Street View program.
F. Punitive Damages
Pennsylvania law provides that a defendant must have engaged in “outrageous” or “intentional, reckless or malicious” conduct to sustain a claim for punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747-48 (1984). Indeed, “punitive damages cannot be based upon ordinary negligence.” Hutchinson ex rel. Hutchinson v. Buddy, 946 A.2d 744, 747 (Pa.Super.Ct.2008).
*283The Borings’ complaint fails to allege conduct that is outrageous or malicious. There is no allegation that Google intentionally sent its driver onto their property or that Google was even aware that its driver had entered onto the property. Moreover, there are no facts suggesting that Google acted maliciously or recklessly or that Google intentionally disregarded the Borings’ rights.
The Borings argue that a claim for punitive damages must always be determined by a jury, after discovery. But courts do indeed dismiss claims for punitive damages in advance of trial. See Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445, 447 (2005) (reversing a denial of summary judgment as to a punitive damages claim because “[a] showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed”); Feld, 485 A.2d at 748 (holding that submission of punitive damages issue to jury was error).10 And, under the pleading standards we are bound to apply, there is simply no foundation in the complaint for a demand for punitive damages. Cf. Iqbal, 129 S.Ct. at 1950 (explaining that while a plaintiff may use legal conclusions to provide the structure for the complaint, the pleading’s factual content must independently “permit the court to infer more than the mere possibility of misconduct”); Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (explaining that a plaintiff must “identify[ ] facts that are suggestive enough to render [his claim] plausible”).
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of Google’s motion to dismiss the Borings’ claims for invasion of privacy, unjust enrichment, in-junctive relief, and punitive damages. We reverse, however, with respect to the trespass claim, and remand with instructions that the District Court permit that claim to go forward.
. Google Maps is a service offered by Google that “gives users the ability to look up addresses, search for businesses, and get point-to-point driving directions — all plotted on interactive street maps....” (App. at A5.)
. For ease of reference, the amended complaint is referred to herein simply as the "complaint.”
. Google timely removed the action to the District Court pursuant to 29 U.S.C. §§ 1441 and 1446. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. We have appellate jurisdiction over the final orders of the District Court under 28 U.S.C. § 1291.
. Though not pertinent to our decision, we note Google's assertion, which is not seriously contested by the Borings, that the Street View photograph is similar to a view of the Bor-ings' house that was once publicly available online through the County Assessor’s website.
. Google spends much time arguing that the Borings' driveway was not actually a private place sufficient to sustain an invasion of privacy claim. It notes that numerous courts have found no intrusion upon seclusion based upon a view that can be seen from the outside of the home, and points to the fact that images of the Borings' home were already available on the Internet. Because we conclude that the alleged conduct would not be highly offensive to a person of ordinary sensibilities, we need not decide whether the Borings’ driveway was a "private place" for purposes of an invasion of privacy claim.
. We note, however, that the facts revealed may not actually be “private facts,” as required by prong 2, because the Borings’ property allegedly is or recently was available to public view by virtue of tax records and maps on other Internet sites. See Strickland v. Univ. of Scranton, 700 A.2d 979, 987 (Pa.Super.Ct.1997) (explaining that "a matter which was of public record [was] not a private fact").
. The District Court cited to a single case from 1899 to support its claim that plaintiffs in a trespass case are required to plead nominal damages. However, the case it cited was not a trespass case. See Morris & Essex Mut. Coal Co. v. Del., L. & W.R. Co., 190 Pa. 448, 42 A. 883, 884 (1899). In fact, that case is expressly inapplicable to this case. See id. (“The whole proceeding was to recover damages based, not upon a wrongful invasion of plaintiff's [property] rights, but upon an act of assembly which authorized the taking of the property.”). Similarly, none of the cases cited by Google in its brief are trespass cases. In fact, Google itself indicates the possibility that we may have to remand the case to proceed with a nominal damages trespass claim. While it may be true that for some claims, the failure to seek nominal damages waives a claim for nominal damages, that is not the case with trespass claims.
. We imply nothing about whether the claim would survive summary judgment, either as to liability or damages, or about the limits on proof that may be appropriate.
. Because we find that the Borings stated a claim for trespass (see supra, Section Il.C.ii) and thus survived a 12(b)(6) motion to dismiss as to that claim, we need not address whether unjust enrichment is a stand-alone tort under Pennsylvania law. Instead, we hold that the Borings have failed to state a claim for unjust enrichment, regardless of whether it is a stand-alone tort, because they have failed to allege facts sufficient to establish a benefit conferred upon Google by the Borings. Thus, on remand, the Borings are not entitled to recover under their unjust enrichment claim.
. Appellants rely on two cases to argue that punitive damages must always be determined by a jury after discovery: Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989), and Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.2d 154 (1997). Kirkbride addressed whether a punitive damages award must bear a reasonable relationship to the compensatory award, rather than addressing what kind of conduct must be alleged in order to survive a 12(b)(6) motion to dismiss on a punitive damages claim. 555 A.2d at 801. The Jacque case, in addition to having no binding authority on our Court, addressed whether a punitive damages claim may be awarded in connection with a trespass claim, where nominal damages had been awarded and the trespass was committed "for an outrageous purpose but no significant harm resulted." 563 N.W.2d at 161. Thus, that court did not hold that the issue of punitive damages must always go to the jury.
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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/8476928/
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OPINION OF THE COURT
PER CURIAM.
Appellant Hector Sanchez appeals from a decision of the District Court granting Defendants’ motion for summary judgment. For the reasons set forth below, we will affirm the judgment of the District Court.
*285I.
Sanchez is a former employee of SunGard Availability Services, L.P. (“SunGard”). He was hired as a Senior Software Specialist in 1999. The following month, Sanchez was given a copy of SunGard’s Employee Handbook and he signed an Employee Acknowledgment that explicitly outlined his status as an at-will employee. While at SunGard, Sanchez was directly supervised by Fidel Cardenas (“Cardenas”). Sanchez, who is originally from the Dominican Republic, claims that Cardenas, a Cuban-American, made various disparaging remarks about his nationality. In his Complaint, Sanchez described six specific incidents over the course of his six-year tenure at the company in which his nationality served as the basis for discriminatory comments.1
In January 2005, Sanchez was terminated from SunGard. SunGard contends that he was terminated for non-discriminatory reasons. In support of that argument, SunGard points to three incidents in which Sanchez clashed with Cardenas and other SunGard employees during the month before his termination. In December 2004, Cardenas reprimanded Sanchez for failing to carry out his duties, stating in an email to Sanchez that he did not approve of his sitting at his desk while other employees were hard at work. Second, during the first week of January 2005, Sanchez was involved in a verbal altercation with a coworker. Cardenas was forced to intervene. The final incident, which SunGard claims led directly to Sanchez’s discharge, occurred on January 10, 2005. That day, Sanchez arrived at the SunGard facility at approximately 6:15 a.m., but found that his electronic security key did not work. He was unable to access the building. After being admitted into the building by a coworker, Sanchez had problems accessing a different area in the facility due to his malfunctioning key. Approximately twenty minutes later, Sanchez left his key with security personnel, told them to call him when they had fixed the problem, and went home. Sanchez received a call from SunGard at noon requesting that he return to work. When he did so, he was informed by Cardenas that he was being terminated for insubordination and leaving the facility without prior authorization.
Following the termination of his employment on January 10, 2005, Sanchez filed a Complaint in the Superior Court of New Jersey alleging that Cardenas discriminated against him on the basis of his nationality and that SunGard fired him in retaliation for complaining about that discrimination. On the basis of those allegations, Sanchez asserted claims for: (1) retaliatory discharge and the creation of a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New Jersey Law Against Discrimination (“NJLAD”); (2) infliction of emotional distress; (3) breach of contract for reasons of race and national origin; (4) unequal payment in contravention of the Equal Pay Act; (5) breach of implied contract of employment; (6) violation on the part of SunGard of the “progressive disciplinary system established by its own policies, procedures, and practices;” and (7) breach of implied covenant of good faith and fair dealing. Based on the federal nature of Sanchez’s Title VII claims, Defendants removed the case to the District Court in August 2006.
At the close of discovery, Defendants moved for summary judgment on all of *286Sanchez’s claims. After reviewing the parties’ arguments, the District Court determined that Sanchez’s allegations of discrimination, even when viewed in their strongest possible light, did not rise to the level of severity or pervasiveness required to sustain a hostile work environment claim under Title VII or the NJLAD. Furthermore, the District Court found that SunGard articulated legitimate reasons for Sanchez’s termination, and Sanchez was unable to demonstrate that those reasons were a pretext for discriminatory purposes. The District Court also found that Sanchez failed to produce evidence of sufficiently outrageous activity on the part of the Defendants to support his claim for infliction of emotional distress. Lastly, the District Court dismissed the remainder of Sanchez’s claims because they were premised on the existence of an employment contract and it was undisputed that no such contract existed. Sanchez filed a timely appeal from the District Court’s determination.
II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s decision to grant summary judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995). However, a party opposing summary judgment “must present more than just ‘bare assertions, conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005).
III.
After a careful review of the record, we find that the District Court properly entered summary judgment in favor of Defendants on all of Sanchez’s claims.
Title VII and NJLAD Claims
Hostile Work Environment
The District Court dismissed Sanchez’s hostile work environment and retaliation claims because he was unable to establish a prima facie case on either claim. With regard to a hostile work environment claim, this Court has articulated factors that must be proven in order to establish the existence of an actionable hostile work environment under Title VIL A plaintiff must prove: (1) that he suffered intentional discrimination «because of his race or national origin; (2) that the discrimination was severe and pervasive; (3) that the discrimination detrimentally affected him; (4) that the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996).2
In employing this analysis, a court must evaluate the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unrea*287sonably interferes with an employee’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Title VII is not violated by “[m]ere utterance of an ... epithet which engenders offensive feelings in an employee” or by mere “discourtesy or rudeness,” unless so severe or pervasive as to constitute an objective change in the conditions of employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
The District Court correctly ruled that under the totality of the circumstances, any discrimination was not sufficiently severe or pervasive to support a hostile work environment claim. Sanchez alleges that Cardenas made several derogatory comments relating to Sanchez’s Dominican nationality over a period of six years. During that time, Sanchez also received three racially-charged emails. However, none of the content in the emails implicated Sanchez’s own nationality or any other protected trait. Furthermore, he admitted that he did not report the emails or seek redress under the company’s non-discrimination policy and, on at least one occasion, responded to an email from Cardenas without acknowledging the allegedly-discriminatory comments contained therein.
With regard to the alleged discriminatory comments made by Cardenas implicating Sanchez’s nationality, upon review, we agree with the District Court that they did not reach a level of sufficient severity or pervasiveness to alter the conditions of his employment. See Faragher, 524 U.S. at 787, 118 S.Ct. 2275. There is no evidence in the record that the complained-of conduct ever interfered with Sanchez’s ability to do his work. To the contrary, Sanchez stated that he was “routinely applauded for his great teamwork and willingness to both come in early and stay beyond his normal working hours in order to satisfy the company and its clients.” (Complaint at ¶ 1.) Moreover, Sanchez does not assert that he was physically threatened by the comments. See Harris, 510 U.S. at 23, 114 S.Ct. 367. Therefore, while we agree that the comments may have been inappropriate, there is insufficient evidence in the record to suggest that the a reasonable jury could conclude that the comments, when considered cumulatively, were sufficiently severe or pervasive. Accordingly, the District Court properly granted summary judgment on this claim.
Retaliatory Discharge
The District Court also properly granted summary judgment in favor of Defendants on Sanchez’s claim of retaliatory discharge. In order to establish a prima facie case of retaliatory discharge under Title VII or the NJLAD, Sanchez must show: (1) that he engaged in a protected activity; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action. See Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006); Tariaglia v. UBS PaineWebber Inc., 197 N.J. 81, 961 A.2d 1167, 1192 (2008).
Sanchez’s retaliation claim is based entirely upon his alleged experiences during a January 7, 2005 lunch with several of his co-workers at SunGard, which he claims led to his dismissal. During the lunch, Sanchez claims that he reported to coworkers that he was being discriminated against, harassed, and bullied. However, none of Sanchez’s colleagues was able to recall the incident, nor is there any evidence to suggest that Cardenas was ever told of Sanchez’s alleged comments. As mentioned earlier, Sanchez does not allege that he ever reported any of the other comments made by Cardenas regarding *288his nationality during his six-year employment with SunGard.
First, we agree with the District Court that the alleged remark Sanchez made to his co-workers during lunch was too vague to constitute protected activity. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (Bd Cir.1995) (holding that complaints must be specific enough to notify management of the particular type of discrimination at issue in order to constitute “protected activity”). Moreover, because the individuals who were responsible for deciding to discharge Sanchez were unaware of his complaints of discrimination, Sanchez has failed to establish a causal connection between his termination and his alleged reporting the discrimination. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 415 (3d Cir.1999) (affirming a grant of summary judgment on a retaliation claim under Title VII where there was no evidence that the principals who made the decision to fire the plaintiff were aware of the protected action). Summary judgment was therefore appropriate as Sanchez failed to establish a prima facie case of retaliatory discharge.3
Infliction of Emotional Distress
We also agree with the District Court that there is insufficient record evidence to sustain Sanchez’s claim of infliction of emotional distress. In New Jersey, it is “extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress.” Griffin v. Tops Appliance City, Inc., 337 N.J.Super. 15, 766 A.2d 292, 297 (N.J.Super.Ct.App.Div.2001). The distress suffered by the plaintiff must be so severe that “no reasonable man could be expected to endure it.” Buckley v. Trenton Saving Fund Soc’y, 111 N.J. 355, 544 A.2d 857, 863 (1988). Having concluded that the District Court properly determined that the alleged discriminatory comments made by Cardenas were not so severe or pervasive as to alter the conditions of Sanchez’s employment, we agree with the District Court’s further assessment that the comments, although inappropriate, were not sufficiently outrageous in character to sustain a claim for infliction of emotional distress.
Unequal Payment
Sanchez also claims that SunGard compensated him at a lesser rate than similarly situated employees in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d). The District Court correctly concluded that Sanchez failed to set forth any evidence that he was paid less than similarly-situated female employees at SunGard. See Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir.2000).
Contract Claims
Sanchez’s remaining claims — breach of contract for reasons of race and national origin, breach of implied contract of employment, violation on the part of SunGard of the “progressive disciplinary system established by its own policies, procedures and practices,” and breach of implied covenant of good faith and fair dealing — were *289also properly dismissed.4 As the District Court correctly noted, it is undisputed that Sanchez was an at-will employee and that no employment contract between the parties existed. Summary judgment was therefore appropriate.
. Sanchez also claimed for the first time in his brief opposing Defendants’ summary judgment motion that Cardenas also sent several racist emails to him about African-Americans and Arab people.
. We have held that the elements for a hostile work environment claim under NJLAD "closely resemble the first four elements of [a] Title VII hostile work environment claim.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001). Accordingly, the reasoning we apply regarding Sanchez’s Title VII claim applies to his NJLAD claim as well.
. We note that even if Sanchez could establish a prima facie case of retaliation, he would be unable to demonstrate that SunGard’s stated reason for terminating his employment was pretextual. SunGard presented substantial evidence that Sanchez's termination was motivated by non-discriminatory considerations. Specifically, during the month before his termination, Sanchez was reprimanded for dereliction of his duties and was involved in an altercation with a co-worker. On the day he was terminated, he left work without authorization.
. Sanchez claims that the District Court failed to consider all of the claims in his Complaint. A review of Sanchez's Complaint shows that the District Court properly considered and reviewed all of the claims set forth in the Complaint.
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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/8476930/
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OPINION
AMBRO, Circuit Judge.
Ahmed Joaquin pled guilty in the District of New Jersey to possession of a firearm by a convicted felon and was sentenced to 96 months’ imprisonment, to run consecutively to an undischarged sentence on drug charges in state court. He now appeals that sentence as procedurally and substantively unreasonable. We disagree, and thus affirm.1
I.
In July 2007, two Newark police officers in plainclothes observed Joaquin running from a group of uniformed police officers who had responded to a report of a stolen vehicle near a public housing complex. The officers stopped and frisked Joaquin and discovered a loaded .32 caliber pistol in his pocket. The officers arrested Joaquin and during a search of his person discovered two “decks” of heroin and a vial of cocaine.
Joaquin was initially charged with drug and firearm offenses in New Jersey state court. The United States Attorney’s Office for the District of New Jersey then adopted the case for federal prosecution.2 In January 2008, a federal grand jury returned an indictment charging Joaquin with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He pled guilty to this offense in June 2008.
Joaquin was sentenced in December 2008. The United States Probation Office determined that his total offense level was 25, which included a four-level upward adjustment because Joaquin possessed a firearm in connection with a drug-trafficking *291offense. U.S.S.G. § 2K2.1(b)(6). His criminal history category was VI, with a resulting Guideline range of 110 to 120 months’ imprisonment. At sentencing, Joaquin argued, among other things, that (1) the § 2K2.1(b)(6) enhancement was improper because he had not been engaged in a drug transaction when he was stopped by police; and (2) his criminal history category of VI overstated the seriousness of his criminal record, warranting a downward departure under U.S.S.G. § 4A1.3. The District Court agreed with Joaquin’s first argument and declined to apply the four-level enhancement. The Court rejected his second argument, finding that, “if anything, the criminal history category ... understate^] Mr. Joaquin’s [criminal] record.” 3
Joaquin’s adjusted offense level was 21, with a resulting Guideline range of 77 to 96 months’ imprisonment. At sentencing, he requested that the District Court sentence him at the bottom of the Guideline range. Joaquin also requested that his sentence run concurrently to a six-year sentence he was serving on drug-trafficking offenses brought in state court, which was imposed in December 2007 (shortly before he was indicted federally in January 2008).4 The District Court rejected Joaquin’s requests and sentenced him to 96 months’ imprisonment, to run consecutively to his undischarged state court sentence. Joaquin timely appealed.
II.
“Our responsibility on appellate review of a criminal sentence is limited yet important: we are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way.” United States v. Levinson, 543 F.3d 190, 195 (3d Cir.2008). Our review proceeds in two stages. First, we “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Second, we consider the totality of the circumstances to determine whether the sentence is substantively reasonable. Tomko, 562 F.3d at 567. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Id. at 568.
Where “a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively.” 18 U.S.C. § 3584(a). The district court must consider the 18 U.S.C. § 3553(a) factors when deciding whether to impose a concurrent or consecutive sentence. Id. § 3584(b). The policy statement in U.S.S.G. § 5G1.3(c) provides that a sentence may be imposed consecutively to an undischarged sentence “to achieve a reasonable punishment for the instant offense.”
III.
Joaquin contends that the District Court’s sentence was procedurally unrea*292sonable because the Court was “so overly preoccupied with the punitive aspects of sentencing” that it failed to consider mitigating factors demonstrating that a consecutive sentence was “greater than necessary” to achieve the sentencing objectives of 18 U.S.C. § 3553(a).
The record reveals otherwise. The District Court stated that it had “listened very carefully” to Joaquin’s arguments that a concurrent sentence was warranted in light of his underprivileged background, his brief employment after he was released from prison in 2004, and the fact that he had recently learned to read and write. The Court, however, was not persuaded that these factors outweighed the need for a consecutive sentence. See United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007) (a district court’s “failure to give mitigating factors the weight a defendant contends they deserve” does not render the sentence unreasonable).
The Court explained that Joaquin’s significant criminal record “indieate[d] that [he] indeed need[ed] to be deterred,” and that a lengthy sentence was required “to demonstrate to [him] that [his] ... felony weapons convictions, plus all of [his] prior drug convictions[,] are extraordinarily serious in our current environment.” See 18 U.S.C. §§ 3553(a)(2)(A), (B). The Court noted that Joaquin had received “relatively lenient sentences” for his past crimes, which included (1) five convictions for drug offenses for which Joaquin received terms of imprisonment with periods of parole ineligibility of one, two, or three years; (2) an arrest for assaulting the woman he was dating, for which he was permitted to plead guilty to a lesser offense and was fined $150; and (3) another arrest for assaulting the same person in violation of a restraining order, for which he was permitted to plead guilty to contempt of court and served 28 days in prison. Finally, the Court emphasized the need to deter others from engaging in similar conduct, and to protect the public from further crimes Joaquin might commit. See id. §§ 3553(a)(2)(B), (C).
Joaquin nonetheless complains that when he was sentenced on state drug charges in December 2007, he believed “there would be no federal charges” arising out of his July 2007 arrest.5 Joaquin represents that, had he known he would face such a federal charge, he would have attempted to delay his sentencing in state court until after his sentencing in federal court, thus avoiding the imposition of a consecutive federal sentence, as well as the three additional criminal history points that resulted from his state court conviction.6 He contends that the District Court committed procedural error by failing to consider the possibility that a consecutive sentence would create a “disparate sentencing situation between [ ] Joaquin and a similarly situated defendant,” as Joaquin now faces “a much longer sentence than someone who was able to resolve [both] offenses in a single jurisdiction, or someone who had been sentenced first at the federal level and thereafter received a concurrent sentence in state court.”
We disagree. 18 U.S.C. § 3553(a)(6) directs district courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” See also U.S.S.G. § 5G1.3 cmt. n. 3(A) (district courts should consider whether a consecutive or concurrent sentence will “achieve a reasonable incremental punishment for the instant offense and *293avoid unwarranted disparity”). It is apparent that the District Court determined that any “disparity” resulting from the sequence of Joaquin’s state and federal court sentencings was not unwarranted in light of Joaquin’s criminal record. The Court noted that Joaquin had been jointly sentenced for four prior offenses and, as a result, had received a “package deal” that likely reduced his aggregate sentence for those offenses. The Court explained that a consecutive sentence was necessary in this case to impress upon Joaquin that there is “a point where courts will not give [him] package deals for all of [his] offenses simply as a matter of expediency.” In this context, we discern no procedural error in the Court’s decision to impose a consecutive sentence.
In sum, our review of the record confirms that the District Court gave “rational and meaningful” consideration to the relevant § 3553(a) factors in imposing its sentence. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc). We therefore conclude that the Court’s sentence was proeedurally reasonable.
IV.
Joaquin finally argues that the District Court’s imposition of a term of 96 months’ imprisonment — to run consecutively to his state court sentence of six years (with a parole ineligibility of three years) — resulted in an “overly punitive” and substantively unreasonable sentence. We conclude, however, that his sentence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008); see also Tomko, 562 F.3d at 568. Accordingly, we affirm his sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction tinder 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). "The abuse-of-discretion standard applies to both our procedural and substantive reasonableness inquiries.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). We also review the District Court's decision to impose a consecutive sentence for abuse of discretion. United States v. Swan, 275 F.3d 272, 275 (3d Cir.2002).
. According to the Presentence Investigation Report, the stale charges were dismissed.
. Joaquin does not challenge on appeal the District Court’s denial of a downward departure under § 4A1.3.
. According to the Presentence Investigation Report, these charges arose from Joaquin's May 2006 arrest for selling heroin and crack cocaine in Newark.
. Joaquin has not identified the basis for his belief that he would not be charged federally.
. Even without those additional criminal history points, Joaquin’s criminal history category would have remained VI.
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OPINION
BARRY, Circuit Judge.
A jury convicted Rodney Smith on two counts of being a felon in possession of a firearm, and the District Court sentenced him to 360 months imprisonment. We will affirm.
I.
Because we write solely for the parties’ benefit, we set forth only those facts necessary to our analysis.
On January 4, 2005, Philadelphia police officers witnessed Smith draw a gun and point it at another man with whom he was arguing. When police approached, Smith fled and, in so doing, tossed the gun aside. Ultimately, the police apprehended Smith and recovered the gun. Following his failure to appear for a September 2006 court proceeding related to those events, a bench warrant was issued for Smith’s arrest.
On May 4, 2007, two uniformed patrol officers, aware of the outstanding bench warrant, recognized Smith. When the officers approached, Smith fled. During his flight, Smith drew a gun and pointed it at the officers. Smith continued to flee and, at some point during his flight, tripped and dropped the gun. Smith finally surrendered in a trash-filled alley, and police recovered the dropped gun.
Because a crowd was gathering, police quickly patted Smith down (seizing ammunition from his person) and placed him in Officer Robert Conway’s patrol cruiser. Officer Conway transported Smith back to *299headquarters where police found another gun in the cruiser’s back seat. Officer Conway testified, and his patrol log confirmed, that prior to his shift he performed a standard sweep of the inside of his cruiser that uncovered no contraband and that Smith was the first person to be placed in his vehicle that shift.
At trial, Smith denied possessing a gun on either occasion. That testimony, however, directly contradicted his proffer in which he admitted to possessing all three guns, including the gun found in Officer Conway’s cruiser. Indeed, at the proffer session, the only portion of the officers’ version of the events with which Smith disagreed was whether he pointed his gun at the officers in May 2007.
The jury found Smith guilty on two counts of being a felon in possession in violation of 18 U.S.C. §§ 922(g) and 924(e). The jury specifically found that Smith possessed all three guns. Based on his offense level and prior criminal history, Smith was subject to a Guidelines range of 360 months to life imprisonment. The District Court sentenced him to 360 months.
II.
A.
With respect to his 2007 conduct, Smith contends that the prosecution failed to produce sufficient evidence demonstrating that he possessed the handgun found in Officer Conway’s cruiser.1 Specifically, Smith argues that because the firearm was recovered from the rear of the cruiser and not during his initial pat down, the prosecution failed to prove a sufficient “chain of custody.” According to Smith, “anyone of dozens or hundreds of people could have thrown another weapon into the back seat.” (Appellee Brief at 8.) This argument is both hyperbole and meritless.
As an initial matter, Smith does not dispute that he possessed and dropped a handgun recovered immediately after his flight. In and of itself, that possession (and the evidence presented with respect to it) is sufficient to satisfy the elements of 18 U.S.C. §§ 922(g) and 924(e), and supports his conviction. The possession of the second handgun is superfluous in terms of criminal culpability, although relevant for sentencing purposes.
But even were there any doubt on this score, Smith’s contention fails. In reviewing a challenge to the sufficiency of the evidence, we “must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Lore, 430 F.3d 190, 204 (3d Cir.2005). A defendant’s burden “is extremely high.” Id. at 203. Here, Officer Conway testified that prior to his shift he inspected his cruiser for contraband and uncovered none. Smith was the first person placed in Officer Conway’s cruiser during that shift, a fact confirmed by Officer Conway’s patrol log. The jury could — and, presumably, did — credit Officer Conway’s testimony over Smith’s, and that testimony is sufficient to support the guilty verdict.2
*300B.
Smith next contends that the District Court improperly applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) based on his use of a firearm in connection' with another felony offense and a six-level enhancement pursuant to U.S.S.G. § 3A1.2(c)(l) based on his creation of a substantial risk of serious bodily injury to the police officers by pointing his firearm at them as he fled.
We will not consider these contentions.3 Smith’s counsel stated that he “researched” both enhancements and, upon that review, withdrew any objection. Smith is foreclosed from raising those objections on appeal. Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 290-91 (3d Cir.2005).
C.
Smith also challenges the District Court’s application of an obstruction of justice enhancement. Pursuant to U.S.S.G. § 3C1.1, a two-level enhancement may be imposed where a “defendant willfully obstructed or impeded ... the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense, and ... [where] the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense.” Even had the Court improperly applied this enhancement, any error was harmless. Under the 2007 Sentencing Guidelines, Smith faced a Sentencing Guidelines range of 360 months to life imprisonment whether his offense level was a 38 or 40. Accordingly, any error would not have affected his Guidelines range. See United States v. Jimenez, 513 F.3d 62, 87 (3d Cir.2008) (purported error in loss calculation harmless where no effect on Guidelines range).
D.
Finally, Smith argues that his 360-month sentence was substantively unreasonable because his crimes did not involve violence. In so arguing, Smith ignores the seriousness of his crimes, the potential for substantial injury created by his offenses, and his alarming criminal history that includes violence, weapons offenses, and narcotics offenses. Accordingly, the District Court did not abuse its discretion in imposing a bottom-of-the-Guidelines sentence. See Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)
III.
For the reasons stated above, we will affirm the judgment of sentence.
. Smith does not challenge the sufficiency of the evidence supporting the conviction related to his 2005 conduct.
. Smith also challenges the imposition of a two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(1)(A) for his possession of three firearms. Because we find sufficient evidence of Smith's possession of a third firearm, we reject this contention without further discussion.
. We do reject his contention that application of these two enhancements was impermissible double counting. "[0]nly when the Guidelines explicitly prohibit double counting will it be impermissible to raise a defendant's offense level under one provision when another offense Guideline already takes into account the same conduct.” United States v. Fisher, 502 F.3d 293, 309 (3d Cir.2007). Smith points to no such prohibition.
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OPINION
AMBRO, Circuit Judge.
In this action to quiet title, Moco Investments, Inc. appeals the District Court’s entry of judgment in favor of the United States. We affirm.1
I.
The relevant facts are undisputed. In March 2003, the Internal Revenue Service (“IRS”) assessed taxes against Chad and Nadine Bacek for the 2001 tax year. Additionally, the IRS assessed taxes against Chad Bacek in May 2004 and May 2005 for the 2003 and 2004 tax years, respectively. On May 31, 2005, Moco Investments, Inc. (“Moco”), a New Jersey limited liability company, acquired from the Baceks a parcel of real property located in Middlesex County. However, Moco did not immediately record its deed. In December 2005, the IRS recorded the notice of a federal tax lien (in the amount of approximately $10,000) against the property the Baceks had conveyed to Moco. Moco recorded its deed to the property shortly thereafter, in January 2006.
Moco sought to have the tax lien released, and in August 2006 filed suit in the District Court for the District of New Jersey against the United States, the IRS,2 and the Baceks.3 In December 2006, the Government moved for judgment on the pleadings. Moco opposed the Government’s motion, and separately moved for summary judgment. In January 2008, the District Court granted the Government’s motion and denied that of Moco, which has timely appealed.4
*308II.
“If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount ... shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.” 26 U.S.C. § 6321. Such a tax lien arises at the time the tax is assessed. See 26 U.S.C. § 6322; In re DeAngelis, 373 F.2d 755, 757 (3d Cir.1967) (“[N]on-payment of taxes after demand creates a lien commencing at the assessment date”).
Here, a tax lien “upon all [of the Baeeks’] property ..., whether real or personal,” arose when the IRS assessed taxes against the Baeeks in March 2003, May 2004, and May 2005 — before the Baceks conveyed the property to Moco. 26 U.S.C. § 6321. Accordingly, the transfer of the property to Moco did not affect the lien because it arose before the transfer. See United States v. Bess, 357 U.S. 51, 57, 78 S.Ct. 1054, 2 L.Ed.2d 1135 (1958) (internal quotation marks omitted) (as a general matter, “[t]he transfer of property subsequent to the attachment of [a]lien does not affect the lien, for it is of the very nature and essence of a lien[ ] that no matter into whose hands the property goes, it passes cum onere [in effect, with the burden of the lien]”); see also United States v. Avila, 88 F.3d 229, 233 (3d Cir.1996).
An exception to this rule appears in 26 U.S.C. § 6323, which provides that a federal tax lien is not valid “against any purchaser ... until notice [of the lien] ... has been filed by the Secretary.” Id. § 6323(a) (emphasis added). A “purchaser” is defined as a “person who, for adequate and full consideration ..., acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice.” Id. § 6323(h)(6). *309Accordingly, the IRS lien is not valid against Moco if, before the IRS filed notice of the lien, Moco qualified “under [New Jersey] law [as a] subsequent purchased ] without actual notice.” Id.
We agree with the District Court that the tax lien is valid against the property now owned by Moco because it recorded its deed too late. New Jersey is a “race-notice” jurisdiction, meaning that, “as between two competing parties[,] the interest of the party who first records the instrument will prevail.” Cox v. RKA Corp., 164 N.J. 487, 758 A.2d 1112, 1116-17 (2000)(citing N.J. Stat. Ann. §§ 46:21-1, 46:22-1). Under this framework, Moco’s interest in the property became valid against subsequent purchasers when it recorded its deed. However, Moco did not record its deed until January 2006, a month after the IRS recorded the tax hen. Accordingly, the lien was vahd against Moco because Moco was not a “purchaser” within the meaning of § 6823 when the IRS recorded its hen.
Moco nonetheless contends that the tax hen is not vahd because the Baceks “no longer had an interest” in the property when the IRS recorded the hen. Moco is mistaken. As noted, a federal tax hen arises at the time the tax is assessed, not when the hen is recorded. See 26 U.S.C. § 6322; In re DeAngelis, 373 F.2d at 757; see also United States v. V. & E Eng’g & Constr. Co., 819 F.2d 331, 335 (1st Cir.1987) (rejecting buyers’ arguments that tax hen on the purchased property “d[id] not exist until notice [was] filed,” and that “at the time of the notice there was no ‘property or right to property’ to which the hen could attach because [it] had already [been] sold”). Although Moco’s deed was immediately vahd as between Moco and the Baceks, it was not vahd against subsequent purchasers until it was recorded. See N.J. Stat. Ann. § 46:22-1 (“any ... deed ... shall be vahd and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees”) (emphasis added); see also H.K. v. State, 184 N.J. 367, 877 A.2d 1218, 1228 (2005) (“[A]n unrecorded deed is ‘perfectly efficacious in passing title from grantor to grantee, subject to all subsequent recorded hens against the grantor and subject to potential divestment by a subsequent bona fide grantee without notice.’ ”) (quoting Siligato v. State, 268 N.J.Super. 21, 632 A.2d 837, 840 (N.J.Super.Ct.App.Div.1993)).
In sum, Moco’s interest in the property was not' “vahd ... against [a] subsequent purchased ] without actual notice” until it recorded its deed in January 2006. 26 U.S.C. § 6323(h)(6). Thus, Moco was not a “purchaser” within the meaning of § 6323 when the IRS recorded its hen in December 2005. Accordingly, the tax hen is vahd against Moco.
Moco also contends that the District Court impermissibly “used federal law to create in the [Baceks] an interest in the [property].” We reject this argument as well. Although whether an interest in property “constitutes ‘property and rights to property5 for the purposes of ... 26 U.S.C. § 6321[ ] .... largely depends upon state law,” United States v. Craft, 535 U.S. 274, 278, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), it is undisputed that the Baceks had a vahd interest in the property when the tax assessment was made. In any event, the District Court correctly applied New Jersey law to determine when Moco became a “purchaser” within the meaning of 26 U.S.C. § 6323.
For these reasons, we affirm the District *310Court’s judgment.5
. Moco's Complaint is entitled: ‘‘Complaint to Compel Release of IRS Lien and for Damages.” Although the Complaint lacks a jurisdictional statement, it was properly treated as an action under 28 U.S.C. § 2410, which grants jurisdiction to district courts over ‘‘any civil action or suit” against the United States "to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.” Id. § 2410(a). We have appellate jurisdiction under 28 U.S.C. § 1291.
. Although Moco named the IRS as a defendant, the United States alone is the proper defendant in a suit under 28 U.S.C. § 2410.
. Though named as defendants, the Baceks were never served and did not enter their appearance in the District Court. While we generally lack jurisdiction to review orders that are not final as to all parties absent a certification by the District Court under Fed. R.Civ.P. 54(b), “a named defendant who has not been served is not a ‘party’ within the meaning of Rule 54(b)." Gomez v. Gov't of Virgin Islands, 882 F.2d 733, 736 (3d Cir.1989). Accordingly, the District Court’s order granting the Government's motion for judgment on the pleadings was final for purposes of 28 U.S.C. § 1291.
.As the Government points out, its motion for judgment on the pleadings should have been treated as a motion for summary judgment, as it (1) was filed before the Government answered the Complaint, and thus before the “pleadings [were] closed,” Fed. R.Civ.P. 12(c); and (2) included materials outside the pleadings — Certificates of Assessments and Payments for the Baceks’ 2001, 2003, and 2004 tax years, which established that taxes were assessed against the Baceks before they conveyed the property to Moco. Because the District Court did not exclude these materials in ruling on the Government’s motion, it effectively converted the motion to one for summary judgment. See Fed.R.Civ.P. 12(d); see also Rose v. Bartle, 871 F.2d 331, 340 (3d Cir.1989) (”[T]he label a district court places on its disposition is not binding on an *308appellate court.”); see also Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 284 (3d Cir.1991) (construing district court’s disposition as the entry of summary judgment, rather than a dismissal under Rule 12(b)(6), where the court did not exclude additional material attached to plaintiff’s motion to dismiss counterclaim). Having done so, the Court needed to give the parties notice of the conversion to a motion for summary judgment. See Rose, 871 F.2d at 342.
Moco does not discuss in its brief the District Court's treatment of the Government's motion; accordingly, it has waived any challenge to the Court’s conversion. See Laborers' Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994). In any event, Moco does not dispute the authenticity of the Certificates of Assessments and Payments attached to the Government's motion, nor does it contend that it was denied a " 'reasonable opportunity’ to present all material relevant to a summary judgment motion." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 288 (3d Cir.1999) (quoting Fed.R.Civ.P. 12(d)). Indeed, in its motion for summary judgment (filed before Moco responded to the Government's motion for judgment on the pleadings), Moco asserted that the “facts [were] undisputed,” and attached no additional materials or affidavits in support of its motion. Accordingly, we conclude that the failure to provide notice of the summary judgment conversion was harmless. See Rose, 871 F.2d at 342 (the failure to provide proper notice does not require reversal where the error is harmless); accord In re Rockefeller, 184 F.3d at 288.
Having determined that the District Court converted the Government’s motion to a motion for summary judgment, we exercise plenary review over its grant of summary judgment, applying the same standard that a district court must apply. See Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007). We view the facts in the light most favorable to the nonmoving party. Id., Erie Telecomms. Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir.1988). A party is entitled to summary judgment only “if the pleadings, the discovery and disclosure materials on file, and any affidavits^] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
. Though not in play because it lost, had Moco won it sought punitive damages from the United States. We point out that Moco could not have been awarded punitive damages against the United States. See 28 U.S.C. § 2674.
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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Asch Webhosting, Inc. (“Asch”), filed this civil action against Adelphia Business Solutions Investment LLC, doing business as Telcove (“Tel-cove”), alleging breach of contract, breach of the covenant of good faith and fair dealing, and intentional interference with contractual relations. Asch appeals the order of the District Court granting summary judgment in favor of Telcove.
Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm essentially for the reasons stated by the District Court.
I.
Telcove is an internet service provider (“ISP”), which purchases capacity from “upstream” providers of internet services and sells that capacity to smaller ISPs “downstream,” like Asch. Telcove and Asch entered into a three-year agreement (“Agreement”) under which Telcove agreed to provide internet services to Asch. Shortly after activating Asch’s internet service in February 2004, Telcove began receiving complaints about emails sent from internet protocol (“IP”) addresses associated with Asch. Telcove eventually received nearly fifteen hundred complaints about emails sent from these IP addresses. In addition, one of Telcove’s upstream providers notified Telcove that it risked losing its internet service because of the content of an email sent from an IP address associated with Asch. On April 28, 2004, Telcove informed Asch by letter that it was terminating its internet service on April 30, 2004. The letter notified Asch that the Agreement was being terminated in accordance with sections (b) and (g) of the Acceptable Use Policy set forth in the Agreement. However, after a discussion between counsel, Telcove agreed to continue providing internet service to Asch so that it would have time to procure internet services from another provider. On June 10, 2004, Telcove stopped providing internet service to Asch.
Asch did not reach agreement with another internet provider and ceased operations. Asch then initiated this civil action against Telcove. Telcove moved for summary judgment on these claims, arguing that an exculpatory clause in the Agreement prevented Asch from recovering the damages it sought. The District Court granted summary judgment in favor of *312Telcove and subsequently denied Asch’s motion for reconsideration. Asch filed a timely appeal.
II.
The District Court granted summary judgment in favor of Telcove, concluding that Asch’s claim for damages was precluded by the exculpatory clause included in the Agreement between the parties and that the exculpatory clause was enforceable. Under New Jersey law, exculpatory clauses in private contracts are “generally sustained so long as they do not adversely affect the public interest.” Chem. Bank of N.J. Nat’l Ass’n v. Bailey, 296 N.J.Super. 515, 687 A.2d 316, 322 (N.J.Super.1997).1 They are ordinarily upheld in the commercial context because “[t]he judiciary will not undertake the writing of a different or better contract between the parties.” See id. (quoting Swisscraft Novelty Co. v. Alad Realty Corp., 113 N.J.Super. 416, 274 A.2d 59, 62 (N.J.Super.1971)). Thus, an exculpatory clause will be enforced if “1) it does not adversely affect the public interest; 2) the exculpated party is not under a legal duty to perform; 3) it does not involve a public utility or common carrier; or 4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.” Gershon v. Regency Diving Ctr., Inc., 368 N.J.Super. 237, 845 A.2d 720, 727 (N.J.Super.2004). Asch argues that the first and fourth exceptions apply to the exculpatory clause at issue here.
The exculpatory clause at issue states as follows:
W arranties/Disclaimers
TELCOVE’S INTERNET SERVICE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS UNLESS STATED OTHERWISE IN THE TELCOVE’S SERVICE LEVEL AGREEMENT (SLA). NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO TELCOVE’S INTERNET SERVICES(S) OR ANY INFORMATION OR SOFTWARE THEREIN. CUSTOMER RELEASES TELCOVE FROM ALL LIABILITY OR RESPONSIBILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES DUE TO LOSS OF REVENUES OR LOSS OF BUSINESS, SUFFERED BY CUSTOMER IN CONNECTION WITH THEIR USE OF OR INABILITY TO USE THE TELCOVE INTERNET SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TELCOVE DISCLAIMS TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW ANY RESPONSIBILITY FOR (AND UNDER NO CIRCUMSTANCES SHALL BE LIABLE FOR) ANY CONDUCT, CONTENT, GOODS AND SERVICES AVAILABLE ON OR THROUGH THE INTERNET OR TELCOVE SERVICES. IN NO EVENT SHALL TELCOVE’S AGGREGATE LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER TO TELCOVE FOR THE TELCOVE SERVICES. USE OF ANY INFORMATION OBTAINED VIA TELCOVE’S INTERNET SERVICE IS AT THE CUSTOMER’S OWN RISK. TELCOVE SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF THE IN*313FORMATION OBTAINED THROUGH ITS SERVICES.
[PA 56] (emphasis in original).
In this litigation, Asch argued that Tel-cove’s termination of the Agreement destroyed its business. Accordingly, as damages, it sought the fair market value of its business, allegedly $1.43 million, in consequential damages. If the exculpatory clause is enforceable, by its terms it relieves Telcove of any liability for the damages Asch seeks because Asch agreed to release Telcove from “all liability or responsibility for any direct, indirect, incidental or consequential damages .... suffered by [Asch] in connection with [its] use of or inability to use the Telcove internet services.” Id. (emphasis added). Thus, the District Court correctly concluded that the exculpatory clause, if enforceable, barred Asch from recovering the damages it sought in this action.2
The District Court also determined that the exculpatory clause was enforceable under New Jersey law because enforcement of the clause was neither adverse to the public interest nor unconscionable. We agree with both of these conclusions.
On appeal, Asch argues that the District Court erred by concluding that enforcing the clause would not adversely affect the public interest. Asch contends that a willful and predatory breach of contract would be contrary to the public interest. Cf. Lucier v. Williams, 366 N.J.Super. 485, 841 A.2d 907, 913-16 (N.J.Super.2004) (holding that a limitation of liability clause in a home inspection contract essentially operated as an exculpatory clause and could not be enforced because it contravened New Jersey public policy). Assuming that enforcing an ex-
culpatory clause in the case of such a breach would affect the public interest, Asch has not established that Telcove’s actions were “predatory.” Telcove produced evidence demonstrating that it had received numerous complaints about activity related to Asch’s IP addresses and decided to terminate Asch’s internet service on that basis. Importantly, Asch has not presented evidence suggesting that Telcove had a reason, other than the explanations it gave, for terminating its services to a paying client. Although Asch points to a series of emails sent among Telcove employees regarding Asch’s request for additional IP addresses, these emails do not demonstrate that Telcove acted predatorily by terminating the Agreement. Furthermore, assuming that Telcove breached the Agreement, enforcing an exculpatory clause after a willful breach of contract does not necessarily violate public policy. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 563 A.2d 31, 38 (1989) (“Where a person interferes with the performance of his or her own contract, the liability is governed by principles of contract law.... Contract law serves contractual parties’ economic interest, such as enabling them efficiently [to] breach the contract, free from the threat of punitive damages.” (internal citations and quotations omitted)); Saxon Constr. & Mgmt. Corp. v. Masterclean of N.C., Inc., 273 N.J.Super. 231, 641 A.2d 1056, 1059 (N.J.Super.1994) (discussing factors to consider when determining if enforcing a contractual term violates public policy). Because the public interest would not be adversely affected by the enforcement of this clause, the District Court properly enforced it.
Next, Asch contends that the District Court erred by concluding that the *314exculpatory clause in the Agreement was not unconscionable. “In determining whether a contract is unconscionable, courts focus on the bargaining power of the parties, the conspicuousness of the putative unfair term, and the oppressiveness and unreasonableness of the term.” Carter v. Exxon Co. USA, 177 F.3d 197, 207 (3d Cir.1999). Here, the District Court found there was no evidence of unequal bargaining power between the parties because Asch was a commercial entity that had previously entered into internet service agreements with several other service providers and was managed by an experienced businessman who had graduated from law school. In addition, the Court noted that the term was prominently presented in the parties’ agreement and was not unreasonable or oppressive.
We agree with the District Court’s conclusions about the bargaining power of the parties and the conspicuousness of the exculpatory clause. See id. Moreover, we agree that the clause is not unconscionable as applied to the facts of this civil action. See id. (“It is only when the circumstances of the transaction, including the sellers’ breach, cause the consequential damage exclusion to be inconsistent with the intent and reasonable commercial expectations of the parties that invalidation of the exclusionary clause would be appropriate .... ” (quoting Kearney & Trecker Corp. v. Master Engraving Co., 107 N.J. 584, 527 A.2d 429, 437-38 (1987))). Here, Telcove provided Asch with notice of its intent to terminate the Agreement and continued providing internet service to Asch while it negotiated service agreements with other internet providers. One provider offered a monthly fee that was within $200 of Telcove’s monthly fee, but Asch declined that offer and ceased operations. Thus, Telcove gave Asch notice and the opportunity to find another provider before terminating its service to Asch. Enforcing the exculpatory clause under these circumstances is not oppressive or unreasonable, and, therefore, the clause is not unconscionable.
Finally, Asch claims that the District Court erred by granting the motion for summary judgment by relying on Telcove’s assertion that it received 1500 complaints related to Asch’s IP addresses. Asch argues that the great majority of these complaints were anonymous and were not verified by Telcove. However, the District Court did not make a finding that the complaints Telcove received were accurate or that Asch was involved in “spamming” or sending emails with pornographic content. Instead, the Court found that Tel-cove relied on the complaints in good faith and that Asch did not demonstrate any bad faith of the part of Telcove. Accordingly, the Court did not err by considering this evidence when granting summary judgment.
III.
The judgment of the District Court will be affirmed.
. The parties agree that New Jersey law applies to the Agreement.
. Asch does not dispute the District Court's interpretation of the exculpatory clause, arguing only that the clause was unenforceable.
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on an appeal from an order of dismissal entered in the District Court on December 19, 2008, under Fed.R.Civ.P. 12(b)(6). Ap*321pellant, David L. Green, an employee of the Department of the Navy, initiated this action pro se in the District Court against Donald C. Winter, the Secretary of Navy in his official capacity, charging that he, Green, submitted an application to his federal employer for the position of supervisor accountant but that the Department of Navy refused to acknowledge or accept his application “due to plaintiff[’s] race/col- or/sex/reprisal, etc.” App. at 33. Winter moved for summary judgment and the District Court dismissed the action because Green did not respond to Winter’s motion. Green then moved for reconsideration and the District Court granted his motion. Nevertheless, in a December 19, 2008 comprehensive memorandum opinion and accompanying order, the Court granted Winter’s motion to dismiss on the merits. The appeal followed.1
The District Court set forth the background of the matter and its reasons for dismissing the action in its memorandum opinion and thus we need not restate at length what the Court said.2 It is sufficient to point out that the action failed in the District Court for three reasons. First, the Court held that Green did not contact an Equal Employment Opportunity counselor at his agency within 45 days “of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action” as 29 C.F.R. § 1614.105(a)(1) requires. Second, Green did not file a timely notice of appeal with the Equal Employment Opportunity Commission (“EEOC”) following a final order of the Department of the Navy mailed to him on March 2, 2002, after a determination that there had not been discrimination against him. Third, the doctrine of sovereign immunity barred a due process of law complaint that Green brought. We, however, address only the first two points as Green does not challenge the sovereign immunity holding.3
Exercising plenary review we see no reason to reject any of the District Court’s conclusions. To start with, Green knew on December 24, 2003, well over 45 *322days before he contacted an EEOC counselor on February 9, 2004, that his employer did not appoint him to the position he had been seeking, and in his brief he does not deny that he had that knowledge. Rather, he contends that he did not know for another month after December 24, 2003, that he was deprived of the appointment by reason of what he regards as discrimination against him. But the fact remains that he knew in December 2003 that the alleged discriminatory act, i.e., the failure of the Navy to make the appointment he sought, had occurred, and thus he was aware in December 2003 that he had been injured by the Navy’s conduct. Accordingly, 29 C.F.R. § 1614.105(a)(1) bars this action. See Oshiver v. Levin, Fish-bein, Sedran, & Berman, 38 F.3d 1380, 1391 (3d Cir.1994).
We recognize that Green contends that an EEOC counselor advised him on February 20, 2004, not to file a formal complaint. But we do not see why that matters as by that time his 45-day period to contact a counselor had expired. In any event, the counselor only gave Green advice which did not preclude him from filing a formal complaint which, in fact, he did on May 18, 2004.
Furthermore, the District Court correctly concluded that Green’s appeal to the EEOC was untimely. As we set forth above, the Department of the Navy mailed Green a notice on March 2, 2002, that there had not been discrimination against him. He had 30 days plus five days added for receipt of the mail notice to him to appeal from that finding to the EEOC. See 29 C.F.R. § 1614.402(a). Nevertheless, he did not appeal until April 12, 2002, and thus he simply did not meet the deadline for an appeal. While we recognize that the EEOC in its decision affirming the dismissal of Green’s complaint recited that the appeal was “timely,” it did not explain why it believed that to be so. In any event, the appeal was not timely and the EEOC’s statement to the contrary does not make it so or bind us. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n. 9 (3d Cir.1983); superceded on another matter by 29 C.F.R. § 1601.13(a)(4). The situation is no different than when on an appeal a court of appeals determines if a district court had subject matter jurisdiction in the case on appeal. A district court’s conclusion that it had jurisdiction does not bind a court of appeals on an appeal from the district court. See Emerald Investors Trust v. Gaunt Parsippany Partners, 492 F.3d 192, 197 (3d Cir.2007). In any event, even if the EEOC was correct the action still would be barred by reason of Green’s delay in contacting an EEOC counselor.
The order of December 19, 2009, 2008 WL 5273579, will be affirmed.
. The District Court had jurisdiction under 42 U.S.C. § 2000e-16 and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review on this appeal.
. There is some confusion in the record as to what motion the District Court granted after it granted Green's motion for reconsideration. Winter moved for both an order of dismissal and for summary judgment and in its opinion the District Court set forth the standards for consideration of both motions, thereby suggesting that it was granting both a motion to dismiss and a motion for summary judgment. Yet at the outset of its opinion the Court, after reciting that it was considering a "Motion to Dismiss Complaint and/or for Summary Judgment,” indicated that "Defendant’s Motion to Dismiss is granted," app. at 163, and the accompanying order closing the case did not mention summary judgment but stated that "Defendant’s motion to Dismiss in GRANTED.” App. at 178. We, however, will not linger on this point as we are considering the appeal exercising plenary review of the District Court’s opinion and order and, in turn, are considering the case on both the standards for granting motions to dismiss and for summary judgment.
.The District Court denied Green's repeated applications for appointment of an attorney to represent him in orders that he regards as "an abuse of discretion.” Appellant's br. at 9. However, Green does not make a real argument supporting that contention which therefore is not properly before us. See Pennsylvania Dep't of Pub. Welfare v. United States Dep’t of Health and Human Servs., 101 F.3d 939, 945 (3d Cir.1996). In any event, the Court did not abuse its discretion in denying the appointment as Green is an experienced litigator who should have been capable of proceeding pro se. In this regard we point out that the statement of related cases in Winter’s brief lists one appeal to this Court, four district court actions, and seven administrative proceedings before the EEOC.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Enders appeals the district court’s order granting summary judgment for Appellees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Enders v. Ryder Integrated Logistics, Inc., Nos. 1:08-cv-03211-JFM; 1:08-cv-03042-JFM, 2009 WL 2134344 (D.Md. July 16, 2009). We deny as moot Enders’ motion to expedite and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8476959/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meldon Irvin Washington 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. Washington, No. 3:00-cr-00287-REP-1 (E.D.Va. May 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:
Larone Frederick Elijah appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(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. Elijah, No. 7:07-cr-00010-D-1 (E.D.N.C. filed May 22 & entered May 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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https://www.courtlistener.com/api/rest/v3/opinions/8476965/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammed Asad Said appeals the district court’s order denying his motion to correct judgment and commitment order. We have reviewed the record and find no reversible error.* Accordingly, we affirm for the reasons stated by the district court. *369United States v. Said, No. 1:03-cr-00556-TSE-1 (E.D.Va. Apr. 30, 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.
See Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967) (where the oral judgment is ambiguous, the written judgment and commitment order may be used to clarify the intention of the sentencing judge); see also United States v. Morse, 344 F.2d 27, 30 (4th Cir.1965) (the court "should carry out the true intention of the sentencing judge as this may be gathered from what he said at the time of sentencing.").
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Iris Wadsworth and Emmett W. Caldwell appeal the district court’s order affirming the magistrate judge’s order denying their motion for an extension of time within which to file objections to the magistrate judge’s report and recommendation.
This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Appellants seek to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Wright appeals the district court’s oral order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. As noted on the district court’s docket sheet, the court denied relief on Wright’s motion for the reasons stated in its July 11, 2008 order. The July 11 order reveals that Wright was not eligible for a sentence reduction under Amendment 706 because he was held accountable for more than 4.5 kilograms of crack. Because our review of the record reveals no reversible error, we affirm. 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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https://www.courtlistener.com/api/rest/v3/opinions/8476957/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Enders appeals the district court’s order granting summary judgment for Appellees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Enders v. Ryder Integrated Logistics, Inc., Nos. 1:08-cv-03211-JFM; 1:08-cv-03042-JFM, 2009 WL 2134344 (D.Md. July 16, 2009). We deny as moot Enders’ motion to expedite and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8476960/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meldon Irvin Washington 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. Washington, No. 3:00-cr-00287-REP-1 (E.D.Va. May 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:
Dino Marcellus Giles appeals the district court’s order denying his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Giles, No. 1:94-cr-00212WMN-1 (D.Md. Aug. 7, 2008); see United States v. Hood, 556 F.3d 226, 235-36 (4th Cir.), cert. denied, — U.S. -, 130 S.Ct. 321, 175 L.Ed.2d 212 (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:
Larone Frederick Elijah appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(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. Elijah, No. 7:07-cr-00010-D-1 (E.D.N.C. filed May 22 & entered May 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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mohammed Asad Said appeals the district court’s order denying his motion to correct judgment and commitment order. We have reviewed the record and find no reversible error.* Accordingly, we affirm for the reasons stated by the district court. *369United States v. Said, No. 1:03-cr-00556-TSE-1 (E.D.Va. Apr. 30, 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.
See Baca v. United States, 383 F.2d 154, 157 (10th Cir.1967) (where the oral judgment is ambiguous, the written judgment and commitment order may be used to clarify the intention of the sentencing judge); see also United States v. Morse, 344 F.2d 27, 30 (4th Cir.1965) (the court "should carry out the true intention of the sentencing judge as this may be gathered from what he said at the time of sentencing.").
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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Iris Wadsworth and Emmett W. Caldwell appeal the district court’s order affirming the magistrate judge’s order denying their motion for an extension of time within which to file objections to the magistrate judge’s report and recommendation.
This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Appellants seek to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charmaine Denise Jackson appeals the district court’s orders granting Appellees’ motion for summary judgment and denying Appellant’s motions for counsel and to reopen discovery. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Am. Healthways Gov’t Servs., Inc., No. 8:07-cv-03244-PJM, 2009 WL 2487113 (D.Md. Aug. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cheri Black appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing her complaint alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Black v. Cecil Coll., No. 1:09-cv-01182-RDB, 2009 WL 2366383 (D.Md. July 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8476975/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Kinney and JK Minor appeal the district court’s order dismissing their civil rights action as frivolous. On appeal, we confíne our review to the issues raised in the Appellants’ brief, see 4th Cir. R. 34(b), and Appellants’ brief alleges no error committed by the district court. We therefore find Appellants have forfeited appellate review of that order. Accordingly, we affirm the district court’s order. Further, we grant Appellants’ motion to withdraw their previously filed motion for default judgment. 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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https://www.courtlistener.com/api/rest/v3/opinions/8476977/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald T. Masko appeals the district court’s order granting his motion for a sentence reduction under 18 U.S.C. § 3582(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. Masko, No. 5:99-cr-00013-FPS-JES-2 (ND.W.Va. July 17, 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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https://www.courtlistener.com/api/rest/v3/opinions/8476981/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Adeyemi Williams, a native and citizen of Nigeria, petitions for review of an order of the Board of Immigration Appeals (Board) denying his motion to reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Williams’ motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Williams (B.I.A. Dec. 30, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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PER CURIAM:
Charles E. Taylor, appointed counsel for Patrick Wilson, has filed a motion to withdraw on appeal, 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 Wilson’s convictions and sentences are AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charmaine Denise Jackson appeals the district court’s orders granting Appellees’ motion for summary judgment and denying Appellant’s motions for counsel and to reopen discovery. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jackson v. Am. Healthways Gov’t Servs., Inc., No. 8:07-cv-03244-PJM, 2009 WL 2487113 (D.Md. Aug. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8476972/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cheri Black appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing her complaint alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Black v. Cecil Coll., No. 1:09-cv-01182-RDB, 2009 WL 2366383 (D.Md. July 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Lynn Taylor petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2241 (2006) petition. He seeks an order from this court directing the district court to act. Our review of the proceedings in the district court reveals that there has been no undue delay. Accordingly, although we grant leave to proceed in forma pauperis, we deny the mandamus petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald T. Masko appeals the district court’s order granting his motion for a sentence reduction under 18 U.S.C. § 3582(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. Masko, No. 5:99-cr-00013-FPS-JES-2 (ND.W.Va. July 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Adeyemi Williams, a native and citizen of Nigeria, petitions for review of an order of the Board of Immigration Appeals (Board) denying his motion to reconsider. We have reviewed the administrative record and find no abuse of discretion in the denial of relief on Williams’ motion. See 8 C.F.R. § 1003.2(a) (2009). We accordingly deny the petition for review for the reasons stated by the Board. See In re: Williams (B.I.A. Dec. 30, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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PER CURIAM: *
Jose Ceballos, Jr., was shot and killed by Officer William Bridgwater of the City of Plainview’s police department during an incident at Ceballos’s home. His family (the “Ceballos Family”) sued Bridgwater; his supervisor, Jose Porras; the Chief of Police, William Mull; and the City of Plainview1 under 42 U.S.C. § 1983 and *424certain state law theories. The district court granted summary judgment to the City and dismissed the state law claims on their merits. The Ceballos Family appealed.2 We AFFIRM.
I. Facts
On September 11, 2006, Luz Maria Reyes telephoned 911 and reported that her brothers, Ceballos and Andres Pacheco, were fighting at the apartment in Plainview, Texas, where their mother, Carmen Ceballos, lived, and then hung up on the operator. Bridgwater responded to the call, and Porras arrived shortly thereafter. The parties dispute the sequence of events; suffice it to say that Bridgwater broke down the door when Ceballos declined to open it. Ceballos moved into the entryway holding a kitchen knife in one hand and a cigarette in the other. Bridg-water told Ceballos to drop the knife. Bridgwater contends that Ceballos stepped towards him with the knife raised, while the Ceballos Family contends that he simply swayed back and forth while holding the knife at his side. It is undisputed that Bridgwater fatally shot Ceballos.
The Ceballos Family sued for violation of Ceballos’s constitutional rights under 42 U.S.C. § 1983 and asserted a number of additional state tort claims — gross negligence, assault, wrongful death, intentional infliction of emotional distress, failure to adequately supervise, failure to discipline, and failure to train. The district court granted the City’s motion for summary judgment, and this appeal followed.3
II. Standard of Review
We review a grant of summary judgment de novo. N. Am. Specialty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir.2008). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); that is, “[a]n issue is material if its resolution could affect the outcome of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir.2002). When reviewing a grant of summary judgment, we view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., *425458 F.3d 288, 285 (5th Cir.2006). In doing so, we “refrain from making credibility determinations or weighing the evidence.” Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., 515 F.3d 414, 418 (5th Cir.2008). However, to avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). We may “affirm a grant of summary judgment on any grounds supported by the record and presented to the [district] court.” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.2008).
III. Discussion
Municipal liability under § 1983 may not be predicated on respondeat superior. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001). Rather, the plaintiff must demonstrate: “(1) that the municipal employee violated [the decedent’s] clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999). Under the second prong, the plaintiff must identify a policymaker and show that an official policy is the “moving force” behind the municipal employee’s allegedly unconstitutional act. Piotrowski, 237 F.3d at 578. The objective deliberate indifference standard “considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the [decedent’s] rights.” Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir.2002); see Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir.2003) (“Knowledge on the part of a policymaker, [either actual or constructive,] that a constitutional violation will most likely result from a given official custom or policy is a sine qua non of municipal liability under section 1983.”).
The Ceballos Family has failed to produce summary judgment evidence that Police Chief Mull — the only alleged policymaker identified — was an official policymaker for the City. His acknowledgment of responsibility for his department does not convert him into the City’s policymaker. See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246-48 (5th Cir.1993) (explaining the distinction between decisionmaking authority and final policymaking authority); Gros v. City of Grand Prairie, 181 F.3d 613, 616-17 & n. 2 (5th Cir.1999) (noting that whether a police chief is the policymaker in a given city is a fact issue). More importantly, the Ceballos Family has failed to identify a policy or custom that is directly linked to the alleged violation here. The only argument made is that the City had knowledge of some reckless driving on Bridgwater’s part. Even if that were true, it does not show that the City knew that Bridgwater would use excessive force, nor does it show that there was a policy or custom that would “most likely” lead to the constitutional violation allegedly committed.
Because the district court correctly determined in its alternative grounds for judgment that Ceballos Family failed to raise a material fact issue as to the second prong for municipal liability, we need not reach the first prong. Thus, we do not reach the Ceballos Family’s argument that the district court erred in concluding that the City has no liability because there was no constitutional violation.
AFFIRMED. SUBSTITUTION MOTION GRANTED.
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.
. The appeal involving the disposition of the case against the individual defendants has proceeded separately under Case No. 09-10076 which was recently decided. Reyes v. Bridgwater, 362 Fed.Appx. 403, 2010 WL 271422, 2010 LEXIS App. 1502 (5th Cir.2010)(unpublished), The Ceballos Family urged us to hold this decision pending our decision in that case. Because we conclude that the case against the City of Plainview fails even if the case against some or all of the individual defendants were reversed, we determined not to hold this appeal pending resolution of that one. In the meantime, that case was decided.
. Appellants' counsel has notified the court that Carmen Ceballos, one of the original plaintiffs-appellants, died during the pen-dency of this appeal; the remaining appellant has accordingly moved for substitution of parties pursuant to Federal Rule of Appellate Procedure 43(a)(1). The City of Plainview filed no response or objection to the motion within the time specified by Federal Rule of Appellate Procedure 27(a)(3)(A). We therefore deem the motion unopposed and GRANT the appellant's motion to substitute parties.
. The district court also granted the City's motion to dismiss the Ceballos Family’s state law claims against the City for failure to state a claim upon which relief could be granted. The district court explained that, under section 101.025 of the Texas Civil Practice and Remedies Code, the State of Texas has not waived sovereign immunity for intentional acts and that all of the Ceballos Family’s claims against the City involved intentional acts. While the Ceballos Family purports to appeal that determination, the lone argument advanced on appeal is that reversal of the district court's finding that no constitutional violation occurred would necessitate revisiting this judgment. We fail to see, however, in what respect the district court’s finding that the City cannot be held liable for intentional conduct is conceivably predicated on the determination that no constitutional violation occurred. In any event, we did not reverse the holding on the federal claim. We thus AFFIRM the dismissal of the state claims.
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ORDER
A conduct-adjustment board found Indiana inmate Edwin Calligan guilty of battery after an altercation that he had with two prison guards. Calligan was sanctioned with a year of disciplinary segregation, a demotion in credit-earning class, and the loss of 365 days’ good-time credits. After exhausting his administrative appeals, he petitioned for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court denied his petition and his motion for reconsideration. We affirm the judgment.
According to the conduct report, in August 2007 Officer Frank Bernacet saw Cal-ligan punching and kicking a fellow guard. Bernacet tried to restrain Calligan, but Calligan punched him in the face, hitting his eye and knocking him to the ground where he scraped his arm. When Berna-cet got up, he pulled out his mace, and Calligan abandoned his protest and let Bernacet handcuff him. Bernacet was treated for his injuries both in-house and then, two days later, at an outside facility. Calligan was subsequently charged -with a Class A-102 battery for the “serious bodily injury” that he caused Bernacet.
Before his hearing, Calligan requested photographs of Bernacet’s injuries and statements from three eyewitnesses: inmates Barry Jewell, ‘Williams,” and “the offender who jumped in and helped.” The photographs were not provided because, prison officials said, they did not turn out clearly. They also reported that Williams was unavailable because he had been released and that the unnamed prisoner did not exist. They located Jewell, however, and postponed Calligan’s hearing to arrange for his appearance.
On the day of the hearing, Calligan waived Jewell’s statement and proceeded without his other two witnesses. In his written statement, he admitted that in the commotion of the fight he may have punched Bernacet. But Calligan also speculated that this unnamed prisoner may have done so. In addition, he argued that his charge should be reduced to a Class B battery because Bernacet had not suffered “serious” injuries. The Board accepted Bernacet’s conduct report and found Calligan guilty, explaining that the “[rjeport clearly states offender assaulted staff member.”
In the district court, Calligan asserted that the prison violated due process by failing to locate his two other witnesses. He sought discovery into the efforts that prison officials had made to locate them. He also claimed that there was insufficient evidence of serious bodily injury to Berna-cet. The court denied both his discovery requests and his petition, ruling that Calli-gan could not show that he was prejudiced by the absence of his potential witnesses and that Bernacet’s conduct report, his bruise, and his need for outside medical treatment two days after the incident constituted “some evidence” of serious bodily *545injury. Calligan asked for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, attaching evidence of the availability of his two witnesses and a photograph of Bernacet’s injuries, and contending again that Bernacet’s injuries were not “serious” under Indiana case law. The court denied Calligan’s motion, and this appeal followed.
On appeal Calligan reiterates his arguments that his hearing did not comport with due process. Calligan has a protected liberty interest in his good-time credits and credit-earning class, and he may not be deprived of either without the minimum requirements of due process. Piggie v. McBride, 277 F.3d 922, 924 (7th Cir.2002). For prison disciplinary hearings, due process requires advance written notice of the charges, a limited right to call witnesses and produce documents, a right to be heard before an impartial decision-maker, and a written statement of the evidence relied on with the reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S. 539, 564-71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In addition, the disciplinary board’s decision must be supported by “some evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Calligan first argues that insufficient evidence in the record shows that Bernacet suffered serious bodily injury; he says Bernacet sustained only minor scrapes and bruises. The “some evidence” standard is a lenient one, requiring no more than “a modicum of evidence.” Hill, 472 U.S. at 455, 105 S.Ct. 2768. We will not reweigh the evidence underlying the Board’s decision; we confine our inquiry to whether any reliable evidence exists to support the decision, and, once found, we will not look to see if other record evidence suggests a contrary conclusion. Id. at 455-56, 105 S.Ct. 2768; Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.2007); Culbert v. Young, 834 F.2d 624, 630-31 (7th Cir. 1987). Based on this highly deferential review, we agree with the district court that the record contains “some evidence” of “serious” injuries. Under Indiana law, “serious bodily injury” includes injuries resulting in “extreme pain.” Ind. Code § 35-41-1-25(3). The record contains some evidence that Bernacet experienced extreme pain because he sustained a punch to the eye so hard that it immediately felled him and caused bruises significant enough to require two rounds of medical treatment. Moreover, determining where the line should be drawn between the lesser and the greater battery offense in this case is a question of state law. The state of Indiana has the right to determine what constitutes “serious bodily injury,” and the resolution of this matter does not implicate the federal Constitution. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir.2002).
Next, Calligan argues that the Board violated his due process rights by failing to better explain its decision. Even if we assume that this argument is properly before us (the prison argues that Calligan forfeited it), it fails on the merits because the Board’s written statement is constitutionally adequate, despite its brevity. The Board is required to state its reasoning and the evidence that it relied on to ensure prisoners are not disciplined for things they have not done. See Wolff, 418 U.S. at 565, 94 S.Ct. 2963; Saenz v. Young, 811 F.2d 1172, 1174 (7th Cir.1987). But when the charge is straightforward, the Board need say only that it believed the conduct report. Saenz, 811 F.2d at 1174. Calligan’s case was simple, involving only limited evidence: Bernacet’s conduct report, the evidence of his injuries, and Calligan’s own acknowledgment that he may have punched Bernacet. The *546Board’s brief citation to the conduct report adequately explains its rejection of Calli-gan’s defense.
Calligan’s third due process argument challenges prison authorities for failing to find two of his requested witnesses. He contends that officials lied about not being able to identify the “unnamed prisoner” and that Williams could have been located but for an officer’s error in using the wrong identification number for him. Prison officials are granted significant discretion in responding to requests for witnesses because the minimal due process protections articulated in Wolff should not impose an undue burden on prison administrators, institutional safety, or correctional goals. See Wolff 418 U.S. at 566, 94 S.Ct. 2963; Whitlock v. Johnson, 153 F.3d 380, 386 (7th Cir.1998). But even if these witnesses could have been easily found, Calligan gives us no reason to believe that they would likely have exonerated him. He merely guesses that they may have fingered someone else for the assault on Bernacet. In light of Bernacet’s conduct report and Calligan’s frank acknowledgment of his potential guilt, his speculation about the possible statements of others does not establish a constitutional violation. See Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir.2003).
Calligan’s failure to show the materiality of these two witnesses also resolves his attack that the district court abused its discretion in denying his discovery request for information about the prison officials’ efforts to locate the inmates. The district court has discretion to grant limited discovery in habeas-corpus cases. See Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). But because Calligan has not demonstrated “good cause” — that either witness would likely have influenced the outcome-the district court committed no abuse in denying his requests. Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir.2004).
Finally, Calligan argues that the district court abused its discretion when it denied his motion for reconsideration. A court may grant a Rule 59(e) motion only if the movant presents newly discovered material evidence that was previously unavailable or establishes that the court made a manifest error of law. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819 (7th Cir.2006). Calligan’s new evidence that the prison officials inadequately attempted to locate his witnesses is not material because Calligan still does not show how either witness would have helped him prove his defense. The photograph of Bernacet’s bruise does not vitiate the other, adequate evidence of his serious injury. Lastly, Calligan’s reliance on Hand v. State, 863 N.E.2d 386 (Ind.Ct.App.2007), to argue that Bernacet’s injuries were not serious, is also misplaced. That case applied the reasonable-doubt standard to the definition of “serious” injury but did not alter the meaning of the substantive crime, which covers injuries, like Bernacet’s, involving extreme pain. Thus, the court did not abuse its discretion in denying his motion.
We therefore AFFIRM the judgment of the district court.
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PER CURIAM:
William Charles Fletcher and Richard Selinger, appointed counsel for Andre Maurice Walker, have filed a motion to withdraw on appeal 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, the motion to withdraw is GRANTED, and Walker’s conviction and sentence is AFFIRMED.
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PER CURIAM: *
Anthony Ray Johnson sued the Texas Board of Pardons and Paroles under 42 U.S.C. § 1983 seeking damages for the revocation of his parole. The district court dismissed the suit as frivolous because the Board is immune from suit under the Eleventh Amendment and because Johnson did not assert that the Board’s decision was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus as required by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The court denied leave to proceed in forma pauperis (IFP) on appeal and certified that the appeal was not taken in good faith.
Johnson seeks this court’s leave to proceed IFP. He asserts that he is entitled to damages because a jury acquitted him of the offense that formed the basis of the Board’s revocation decision. The district court correctly determined that his suit is barred by the Eleventh Amendment and Heck. See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.1995). Because Johnson fails to show that he will raise a nonfrivolous issue on appeal, the outstanding motions are DENIED, and the appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 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: *
Jose Ceballos, Jr., was shot and killed by Officer William Bridgwater of the City of Plainview’s police department during an incident at Ceballos’s home. His family (the “Ceballos Family”) sued Bridgwater; his supervisor, Jose Porras; the Chief of Police, William Mull; and the City of Plainview1 under 42 U.S.C. § 1983 and *424certain state law theories. The district court granted summary judgment to the City and dismissed the state law claims on their merits. The Ceballos Family appealed.2 We AFFIRM.
I. Facts
On September 11, 2006, Luz Maria Reyes telephoned 911 and reported that her brothers, Ceballos and Andres Pacheco, were fighting at the apartment in Plainview, Texas, where their mother, Carmen Ceballos, lived, and then hung up on the operator. Bridgwater responded to the call, and Porras arrived shortly thereafter. The parties dispute the sequence of events; suffice it to say that Bridgwater broke down the door when Ceballos declined to open it. Ceballos moved into the entryway holding a kitchen knife in one hand and a cigarette in the other. Bridg-water told Ceballos to drop the knife. Bridgwater contends that Ceballos stepped towards him with the knife raised, while the Ceballos Family contends that he simply swayed back and forth while holding the knife at his side. It is undisputed that Bridgwater fatally shot Ceballos.
The Ceballos Family sued for violation of Ceballos’s constitutional rights under 42 U.S.C. § 1983 and asserted a number of additional state tort claims — gross negligence, assault, wrongful death, intentional infliction of emotional distress, failure to adequately supervise, failure to discipline, and failure to train. The district court granted the City’s motion for summary judgment, and this appeal followed.3
II. Standard of Review
We review a grant of summary judgment de novo. N. Am. Specialty Ins. Co. v. Royal Surplus Lines Ins. Co., 541 F.3d 552, 555 (5th Cir.2008). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); that is, “[a]n issue is material if its resolution could affect the outcome of the action.” Wyatt v. Hunt Plywood Co., 297 F.3d 405, 409 (5th Cir.2002). When reviewing a grant of summary judgment, we view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., *425458 F.3d 288, 285 (5th Cir.2006). In doing so, we “refrain from making credibility determinations or weighing the evidence.” Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., 515 F.3d 414, 418 (5th Cir.2008). However, to avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial. Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir.2006). We may “affirm a grant of summary judgment on any grounds supported by the record and presented to the [district] court.” Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir.2008).
III. Discussion
Municipal liability under § 1983 may not be predicated on respondeat superior. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001). Rather, the plaintiff must demonstrate: “(1) that the municipal employee violated [the decedent’s] clearly established constitutional rights with subjective deliberate indifference; and (2) that this violation resulted from a municipal policy or custom adopted and maintained with objective deliberate indifference.” Olabisiomotosho v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999). Under the second prong, the plaintiff must identify a policymaker and show that an official policy is the “moving force” behind the municipal employee’s allegedly unconstitutional act. Piotrowski, 237 F.3d at 578. The objective deliberate indifference standard “considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the [decedent’s] rights.” Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir.2002); see Burge v. St. Tammany Parish, 336 F.3d 363, 370 (5th Cir.2003) (“Knowledge on the part of a policymaker, [either actual or constructive,] that a constitutional violation will most likely result from a given official custom or policy is a sine qua non of municipal liability under section 1983.”).
The Ceballos Family has failed to produce summary judgment evidence that Police Chief Mull — the only alleged policymaker identified — was an official policymaker for the City. His acknowledgment of responsibility for his department does not convert him into the City’s policymaker. See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1246-48 (5th Cir.1993) (explaining the distinction between decisionmaking authority and final policymaking authority); Gros v. City of Grand Prairie, 181 F.3d 613, 616-17 & n. 2 (5th Cir.1999) (noting that whether a police chief is the policymaker in a given city is a fact issue). More importantly, the Ceballos Family has failed to identify a policy or custom that is directly linked to the alleged violation here. The only argument made is that the City had knowledge of some reckless driving on Bridgwater’s part. Even if that were true, it does not show that the City knew that Bridgwater would use excessive force, nor does it show that there was a policy or custom that would “most likely” lead to the constitutional violation allegedly committed.
Because the district court correctly determined in its alternative grounds for judgment that Ceballos Family failed to raise a material fact issue as to the second prong for municipal liability, we need not reach the first prong. Thus, we do not reach the Ceballos Family’s argument that the district court erred in concluding that the City has no liability because there was no constitutional violation.
AFFIRMED. SUBSTITUTION MOTION GRANTED.
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.
. The appeal involving the disposition of the case against the individual defendants has proceeded separately under Case No. 09-10076 which was recently decided. Reyes v. Bridgwater, 362 Fed.Appx. 403, 2010 WL 271422, 2010 LEXIS App. 1502 (5th Cir.2010)(unpublished), The Ceballos Family urged us to hold this decision pending our decision in that case. Because we conclude that the case against the City of Plainview fails even if the case against some or all of the individual defendants were reversed, we determined not to hold this appeal pending resolution of that one. In the meantime, that case was decided.
. Appellants' counsel has notified the court that Carmen Ceballos, one of the original plaintiffs-appellants, died during the pen-dency of this appeal; the remaining appellant has accordingly moved for substitution of parties pursuant to Federal Rule of Appellate Procedure 43(a)(1). The City of Plainview filed no response or objection to the motion within the time specified by Federal Rule of Appellate Procedure 27(a)(3)(A). We therefore deem the motion unopposed and GRANT the appellant's motion to substitute parties.
. The district court also granted the City's motion to dismiss the Ceballos Family’s state law claims against the City for failure to state a claim upon which relief could be granted. The district court explained that, under section 101.025 of the Texas Civil Practice and Remedies Code, the State of Texas has not waived sovereign immunity for intentional acts and that all of the Ceballos Family’s claims against the City involved intentional acts. While the Ceballos Family purports to appeal that determination, the lone argument advanced on appeal is that reversal of the district court's finding that no constitutional violation occurred would necessitate revisiting this judgment. We fail to see, however, in what respect the district court’s finding that the City cannot be held liable for intentional conduct is conceivably predicated on the determination that no constitutional violation occurred. In any event, we did not reverse the holding on the federal claim. We thus AFFIRM the dismissal of the state claims.
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ORDER
A conduct-adjustment board found Indiana inmate Edwin Calligan guilty of battery after an altercation that he had with two prison guards. Calligan was sanctioned with a year of disciplinary segregation, a demotion in credit-earning class, and the loss of 365 days’ good-time credits. After exhausting his administrative appeals, he petitioned for a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court denied his petition and his motion for reconsideration. We affirm the judgment.
According to the conduct report, in August 2007 Officer Frank Bernacet saw Cal-ligan punching and kicking a fellow guard. Bernacet tried to restrain Calligan, but Calligan punched him in the face, hitting his eye and knocking him to the ground where he scraped his arm. When Berna-cet got up, he pulled out his mace, and Calligan abandoned his protest and let Bernacet handcuff him. Bernacet was treated for his injuries both in-house and then, two days later, at an outside facility. Calligan was subsequently charged -with a Class A-102 battery for the “serious bodily injury” that he caused Bernacet.
Before his hearing, Calligan requested photographs of Bernacet’s injuries and statements from three eyewitnesses: inmates Barry Jewell, ‘Williams,” and “the offender who jumped in and helped.” The photographs were not provided because, prison officials said, they did not turn out clearly. They also reported that Williams was unavailable because he had been released and that the unnamed prisoner did not exist. They located Jewell, however, and postponed Calligan’s hearing to arrange for his appearance.
On the day of the hearing, Calligan waived Jewell’s statement and proceeded without his other two witnesses. In his written statement, he admitted that in the commotion of the fight he may have punched Bernacet. But Calligan also speculated that this unnamed prisoner may have done so. In addition, he argued that his charge should be reduced to a Class B battery because Bernacet had not suffered “serious” injuries. The Board accepted Bernacet’s conduct report and found Calligan guilty, explaining that the “[rjeport clearly states offender assaulted staff member.”
In the district court, Calligan asserted that the prison violated due process by failing to locate his two other witnesses. He sought discovery into the efforts that prison officials had made to locate them. He also claimed that there was insufficient evidence of serious bodily injury to Berna-cet. The court denied both his discovery requests and his petition, ruling that Calli-gan could not show that he was prejudiced by the absence of his potential witnesses and that Bernacet’s conduct report, his bruise, and his need for outside medical treatment two days after the incident constituted “some evidence” of serious bodily *545injury. Calligan asked for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, attaching evidence of the availability of his two witnesses and a photograph of Bernacet’s injuries, and contending again that Bernacet’s injuries were not “serious” under Indiana case law. The court denied Calligan’s motion, and this appeal followed.
On appeal Calligan reiterates his arguments that his hearing did not comport with due process. Calligan has a protected liberty interest in his good-time credits and credit-earning class, and he may not be deprived of either without the minimum requirements of due process. Piggie v. McBride, 277 F.3d 922, 924 (7th Cir.2002). For prison disciplinary hearings, due process requires advance written notice of the charges, a limited right to call witnesses and produce documents, a right to be heard before an impartial decision-maker, and a written statement of the evidence relied on with the reasons for the disciplinary action. See Wolff v. McDonnell, 418 U.S. 539, 564-71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In addition, the disciplinary board’s decision must be supported by “some evidence.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Calligan first argues that insufficient evidence in the record shows that Bernacet suffered serious bodily injury; he says Bernacet sustained only minor scrapes and bruises. The “some evidence” standard is a lenient one, requiring no more than “a modicum of evidence.” Hill, 472 U.S. at 455, 105 S.Ct. 2768. We will not reweigh the evidence underlying the Board’s decision; we confine our inquiry to whether any reliable evidence exists to support the decision, and, once found, we will not look to see if other record evidence suggests a contrary conclusion. Id. at 455-56, 105 S.Ct. 2768; Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.2007); Culbert v. Young, 834 F.2d 624, 630-31 (7th Cir. 1987). Based on this highly deferential review, we agree with the district court that the record contains “some evidence” of “serious” injuries. Under Indiana law, “serious bodily injury” includes injuries resulting in “extreme pain.” Ind. Code § 35-41-1-25(3). The record contains some evidence that Bernacet experienced extreme pain because he sustained a punch to the eye so hard that it immediately felled him and caused bruises significant enough to require two rounds of medical treatment. Moreover, determining where the line should be drawn between the lesser and the greater battery offense in this case is a question of state law. The state of Indiana has the right to determine what constitutes “serious bodily injury,” and the resolution of this matter does not implicate the federal Constitution. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir.2002).
Next, Calligan argues that the Board violated his due process rights by failing to better explain its decision. Even if we assume that this argument is properly before us (the prison argues that Calligan forfeited it), it fails on the merits because the Board’s written statement is constitutionally adequate, despite its brevity. The Board is required to state its reasoning and the evidence that it relied on to ensure prisoners are not disciplined for things they have not done. See Wolff, 418 U.S. at 565, 94 S.Ct. 2963; Saenz v. Young, 811 F.2d 1172, 1174 (7th Cir.1987). But when the charge is straightforward, the Board need say only that it believed the conduct report. Saenz, 811 F.2d at 1174. Calligan’s case was simple, involving only limited evidence: Bernacet’s conduct report, the evidence of his injuries, and Calligan’s own acknowledgment that he may have punched Bernacet. The *546Board’s brief citation to the conduct report adequately explains its rejection of Calli-gan’s defense.
Calligan’s third due process argument challenges prison authorities for failing to find two of his requested witnesses. He contends that officials lied about not being able to identify the “unnamed prisoner” and that Williams could have been located but for an officer’s error in using the wrong identification number for him. Prison officials are granted significant discretion in responding to requests for witnesses because the minimal due process protections articulated in Wolff should not impose an undue burden on prison administrators, institutional safety, or correctional goals. See Wolff 418 U.S. at 566, 94 S.Ct. 2963; Whitlock v. Johnson, 153 F.3d 380, 386 (7th Cir.1998). But even if these witnesses could have been easily found, Calligan gives us no reason to believe that they would likely have exonerated him. He merely guesses that they may have fingered someone else for the assault on Bernacet. In light of Bernacet’s conduct report and Calligan’s frank acknowledgment of his potential guilt, his speculation about the possible statements of others does not establish a constitutional violation. See Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir.2003).
Calligan’s failure to show the materiality of these two witnesses also resolves his attack that the district court abused its discretion in denying his discovery request for information about the prison officials’ efforts to locate the inmates. The district court has discretion to grant limited discovery in habeas-corpus cases. See Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). But because Calligan has not demonstrated “good cause” — that either witness would likely have influenced the outcome-the district court committed no abuse in denying his requests. Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir.2004).
Finally, Calligan argues that the district court abused its discretion when it denied his motion for reconsideration. A court may grant a Rule 59(e) motion only if the movant presents newly discovered material evidence that was previously unavailable or establishes that the court made a manifest error of law. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819 (7th Cir.2006). Calligan’s new evidence that the prison officials inadequately attempted to locate his witnesses is not material because Calligan still does not show how either witness would have helped him prove his defense. The photograph of Bernacet’s bruise does not vitiate the other, adequate evidence of his serious injury. Lastly, Calligan’s reliance on Hand v. State, 863 N.E.2d 386 (Ind.Ct.App.2007), to argue that Bernacet’s injuries were not serious, is also misplaced. That case applied the reasonable-doubt standard to the definition of “serious” injury but did not alter the meaning of the substantive crime, which covers injuries, like Bernacet’s, involving extreme pain. Thus, the court did not abuse its discretion in denying his motion.
We therefore AFFIRM the judgment of the district court.
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ORDER
Christopher Anfield pleaded guilty in 2005 to possessing five or more grams of cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1). After determining that he was a career offender, see U.S.S.G. § 4B1.1, the district court sentenced him to 168 months’ imprisonment.
Anfield moved in 2008 to have his prison term reduced to 140 months. The November 2007 amendments to U.S.S.G. § 2D1.1 reduced the base offense levels for most crack cocaine offenses and had retroactive effect. See U.S. Sentencing Guidelines Manual, supp. to app. C, amends. 706, 711; U.S.S.G. § lB1.10(c). Anfield argued that those amendments gave the district court authority to adjust his sentence under 18 U.S.C. § 3582(c)(2), which permits a court to reduce a term of imprisonment that was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
*548In rejecting that contention, the district court ruled that Anfield’s guidelines range was established by his status as a career offender — not by § 2D1.1 — and thus § 3582(c)(2) did not apply, because his prison term was not based on a sentencing range thereafter lowered by the Commission.
Anfield 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). Anfield did not respond to counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issue identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel considers arguing that the district court erred in concluding that it could not reduce Anfield’s sentence under § 3582(c)(2). But that provision is available only if the term of imprisonment was based on a sentencing range that has since been lowered. Anfield was sentenced as a career offender, and the amendments to § 2D1.1 provide him no benefit. See United States v. Jackson, 573 F.3d 398, 399-400 (7th Cir.2009); United States v. Forman, 553 F.3d 585, 589-90 (7th Cir.2009).
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Willie Holland was sentenced to a total of 77 months’ imprisonment and 3 years’ supervised release after he pleaded guilty to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). Two months into his supervised release, Holland was arrested for possessing cocaine with intent to distribute and, after pleading guilty in state court, was sentenced to a year in prison. The district court then revoked his supervised release and ordered him to serve another 24 months’ imprisonment. Holland appeals, but his appointed counsel has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Holland opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Holland’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir .2002).
At his revocation hearing Holland stipulated that he violated the conditions of his supervised release by committing the state drug crime, and the only conceivable ground for appeal identified by counsel is whether 24 months is too much time. We will uphold a term of reimprisonment imposed on revocation of supervised release unless it is “plainly unreasonable,” a very narrow standard. United States v. Kizeart, 505 F.3d 672, 674-75 (7th Cir.2007). In selecting an appropriate prison term to follow revocation, district courts must consider the policy statements in the guidelines, see U.S.S.G. ch. 7, pt. B, and the sentencing factors set out in 18 U.S.C. § 3553(a). United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). In this case *550the court, by statute, could not imprison Holland for more than two years, see 18 U.S.C. §§ 3583(e)(3), 3559(a)(3), 922(g)(1), even though his Grade A violation and criminal history category of VI yielded a guidelines range of 33 to 41 months’ reim-prisonment, see U.S.S.G. §§ 7Bl.l(a)(l), 7B1.4(a). In selecting 24 months the court weighed the § 3553(a) factors, including the nature of the underlying drug violation and the need to protect the public and promote respect for the law — -especially in light of how quickly Holland had reoffend-ed once released from prison. As counsel notes, it would be frivolous to contend that the court’s evaluation of the statutes and guidelines factors was inadequate.
Counsel questions whether Holland could argue that his term of reimpris-onment is unreasonable in light of his time already served in state custody. Before pleading guilty in state court, Holland already had spent almost 18 months in state custody, most of which was credited against his state sentence. He argued at the revocation hearing that the district court should imprison him for just 6 months to account for the time in state custody, but the court declined to award any reduction below the 24-month statutory maximum.
District courts are not required to shorten a term of reimprisonment to annul time served in state custody for misconduct underlying the revocation, see U.S.S.G. § 7B1.3(f); United States v. Husko, 275 F.3d 600, 603 (7th Cir.2001); United States v. Haney, 232 F.3d 585, 588-89 (7th Cir.2000). In this case the court emphasized that it would have imposed a longer term of reimprisonment if the statutory maximum was higher. The court explained that Holland already had received a break from having a statutory maximum well below the bottom of the guidelines range. And the court correctly noted that postrevocation reimprisonment is part of the penalty for the original offense and separate from any punishment for an offense underlying revocation. See Johnson v. United States, 529 U.S. 694, 700-01, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Any challenge to the length of Holland’s term on this ground would be frivolous.
In his Rule 51(b) response, Holland questions whether he is entitled to credit under 18 U.S.C. § 3585(b) for the almost 6 months in state custody that was not applied to his state sentence. But it is the Bureau of Prisons, not the sentencing court, that computes the credit due under § 3585(b). United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Ross, 219 F.3d 592, 594 (7th Cir.2000). A claim based on § 3585(b) would thus be frivolous in this appeal.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Donta Phelon Davis appeals from his conviction and 105-month sentence for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Davis contends that the district court improperly classified his prior conviction under Wisconsin law for second-degree reckless homicide, see Wis. Stat. § 940.06(1), as a crime of violence under U.S.S.G. § 4B1.2(a). See id. § 2K2.1(a)(2). The government concedes error and agrees that in light of this court’s decision in United States v. Woods, 576 F.3d 400 (7th Cir.2009), the correct disposition is to vacate and remand for resentencing.
In Woods, 576 F.3d at 412-13, we held that an offense in which the mental state is recklessness does not meet the standards for crimes of violence established by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008). Second-degree reckless homicide, in violation of Wis. Stat. § 940.06(1), is therefore not a crime of violence under § 2K2.1(a)(2). See United States v. High, 576 F.3d 429, 430-31 (7th Cir.2009). Davis did not object at sentencing to the classification of his reckless-homicide conviction, but in light of Begay and our recent post-Begay precedent, the district court’s classification of this offense was plain error. See United States v. Gear, 577 F.3d 810, 812 (7th Cir.2009); High, 576 F.3d at 431.
We therefore VACATE Davis’s sentence and REMAND for further proceedings in light of Begay and Woods.
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ORDER
Arthur W. Fuesting alleges that Zim-mer, Inc.’s knee implant was improperly sterilized and as a result malfunctioned, causing him pain and suffering. In our earlier opinion we excluded the testimony of Dr. James Pugh, Fuesting’s initial causation expert. On remand, Fuesting employed the services of Dr. Robert Rose, who testified that the knee implant oxidized while it was implanted because Zim-mer used a faulty sterilization process. Dr. Rose’s testimony suffers from the same deficiencies upon which we excluded Dr. Pugh’s testimony in the earlier opinion — most importantly, it fails to link his general theories about implant oxidation to Fuesting’s knee implant in particular. Although Dr. Rose theorizes that Fuesting’s knee implant failed due to oxidation that occurred while it was implanted, he fails to articulate how his conclusions about knee implants in general pertain to Fuesting’s knee implant in particular. The record indicates that this oxidation could have occurred in the six years after it was ex-planted but before Dr. Rose examined it. He also fails to show that better sterilization methods existed at the time Fuest-ing’s knee was implanted. In fact, the record reveals that the method used by Zimmer was the industry standard. The district court did not err in excluding Dr. Rose’s testimony or that of Dr. James McKechnie, who based his conclusions on Dr. Rose’s theories. And without his experts, Fuesting cannot prove causation, so the district court properly granted summary judgment in Zimmer’s favor.
I. BACKGROUND
A full factual background for this case can be found in our earlier opinion, Fuest-ing v. Zimmer, Inc., 421 F.3d 528 (7th Cir.2005) (“Fuesting /”), so we need recount only those facts directly relevant to this appeal. Zimmer, Inc. manufactures orthopedic implants. In 1992, Arthur W. Fuesting had his right knee replaced with Zimmer’s I/B Knee implant. By May 2001, Fuesting was experiencing swelling in his right knee. Before its implantation, Zimmer sterilized the knee implant using a technique called gamma irradiation in air (“GIA”).
In October 2002, Fuesting filed suit against Zimmer on a theory of design defect, claiming negligence and strict liability based on Zimmer’s decision to sterilize his right knee implant using GIA instead of another method. Fuesting proffered Dr. James Pugh as an expert witness in support of his claims. Dr. Pugh opined that the design of the implant was defective because it delaminated and therefore failed due to oxidation caused by the GIA sterilization process, and manufacturers such as Zimmer should have known in 1991 that better sterilization processes were available (such as gamma irradiation in an inert environment or sterilization with ethylene oxide). The district court denied Zim-mer’s pre-trial motion to exclude Dr. Pugh’s testimony as unreliable under Federal Rule of Evidence 702. The case went to trial, and a jury found in favor of Fuest-ing, awarding him $650,000 in damages.
Zimmer appealed, and we reversed in Fuesting I, finding that the district court erred by failing to exclude Dr. Pugh’s testimony as unreliable. Specifically, we found that Dr. Pugh failed to: (1) “bridge the analytical gap” between his opinion that GIA sterilization leads to oxidation and the failure of Fuesting’s knee implant in particular; (2) show that his methods *562were subject to peer review and approval; (3) rule out alternative possibilities for causation; and (4) show that better sterilization methods were available in 1991. We instructed the trial court to enter judgment for Zimmer, but before it could do so, the Supreme Court issued its decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006), which suggested that it was inappropriate for a court of appeals to award judgment in the absence of a properly-filed postjudgment motion for judgment as matter of law in the district court. Therefore, we amended the original opinion and remanded the case to the district court for further proceedings. Fuesting v. Zimmer, Inc., 448 F.3d 936 (7th Cir.2006).
On remand, Fuesting hired a new expert, Dr. Robert Rose, who submitted a paltry fivepage expert report primarily filled with background facts. Dr. Rose’s report stated that upon examination, he found a tell-tale “white band” indicating that Fuesting’s knee implant failed because of oxidation that occurred while the implant was “in vivo” (implanted in Fuest-ing). The district court excluded Dr. Rose’s testimony, and also excluded the testimony of Fuesting’s treating physician, Dr. McKechnie, because he relied on the opinion of Dr. Rose in forming his conclusions. Since the district court excluded all of Fuesting’s causation testimony, it granted Zimmer’s summary judgment motion. Fuesting now appeals.
II. ANALYSIS
A. Exclusion of Expert Testimony from Dr. Rose and Dr. McKechnie
In both strict liability and negligence actions regarding design, Illinois law (under which Fuesting’s claims proceed) requires plaintiffs to establish “the existence of a defective condition in the product at the time it left the manufacturer’s control,” Carrizales v. Rheem Mfg. Co., 226 Ill. App.3d 20, 168 Ill.Dec. 169, 589 N.E.2d 569, 580 (1991), and “a causal link between the alleged design defect ... and [the plaintiffs] injury,” Baltus v. Weaver Div. of Kidde & Co., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580, 586 (1990). Toward both these ends, Fuesting proffered the expert testimony of Drs. Rose and McKechnie. Without expert causation testimony, Fuesting’s claims fail. Fuesting I, 421 F.3d at 537-38.
The admissibility of scientific expert testimony is governed by Federal Rule of Evidence 702, and in particular Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 702 requires the district court to perform a “gate-keeping” function before admitting expert scientific testimony in order to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Before considering whether the testimony “will assist the trier of fact to understand or determine a fact in issue,” a district court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93, 113 S.Ct. 2786. To aid courts in as*563sessing the reliability of scientific expert testimony, the Supreme Court set forth the following, non-exhaustive list of “guideposts” for consideration: (1) whether the scientific theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory’s known or potential rate of error when applied; and (4) whether the theory has been “generally accepted” in the scientific community. Id. at 593-94, 113 S.Ct. 2786; see also Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir.2002). We review de novo whether the court correctly applied Daubert’s framework, and we review the court’s decision to admit or exclude expert testimony for abuse of discretion. Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir.2008).
In this case, Dr. Rose’s testimony fails for essentially the same reasons that Dr. Pugh’s did. First, Dr. Rose’s testimony did not show that his theory that these knee implants oxidize “in vivo” has sufficient acceptance in the scientific community. He cited several articles that he wrote, the most recent one in 1986, but the bulk of these articles concern the oxidizing of an implant prior to implantation. He failed to point to any peer reviewed studies that discuss the oxidation rates of this type of implant in vivo. In this case, the implant sat on a shelf for seven months before implantation, was in vivo for nine years, and then sat on a shelf again for six additional years before Dr. Rose examined it. Dr. Rose failed to cite any articles or studies that he or any one else conducted regarding how one can discern whether the oxidation occurred before or after implantation. And in this case, it is perfectly plausible that the oxidation occurred after it was removed. Dr. Rose also did not rule out possible alternative methods of causation. Zimmer, as well as the implant industry as a whole, admits that GIA causes at least some oxidization. However, Dr. Rose failed to proffer any evidence that GIA caused this oxidation to occur at a rapid rate while the implant was in Fuest-ing. Nor did he articulate why this oxidation could not have occurred during the six years after it was explanted and before he examined it, rather than while it was in vivo. He also did not discuss other possible reasons for the device’s failure, such as Fuesting’s weight or gait. Nor does he explain how the device’s oxidation caused the device to fail — the mere presence of oxidation does not prove that the oxidation caused the device to malfunction.
More importantly, like Dr. Pugh, Dr. Rose has failed to “bridge the analytical gap” between the accepted fact that GIA sterilization causes at least some amount of oxidation and his ultimate conclusion that Fuesting’s knee implant in particular failed because GIA, rather than another sterilization method, was used. One indicator of unreliability is the unjustifiable extrapolation from an accepted premise to an unfounded conclusion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”). Dr. Rose did not answer a variety of questions posed by this court in its earlier opinion with any specificity. Among other things, he failed to address “with respect to Fuesting’s implant in particular, what quantum of each variable is required to set this agreed upon chain reaction in motion. How much radiation does it take to cause oxidation, and to what degree? How much oxidation must occur to render polyethylene more susceptible to delamination?”. Fuesting I, 421 F.3d at 536. As we noted, “some greater methodology is required to bridge the analytical gap between general principles and particular conclusions, and to vest thereby the opinion with requisite reliability.” Id. Here, Dr. Rose did not employ any “greater methodology” that linked his general *564observations with Fuesting’s knee implant in particular.
Last, Dr. Rose failed to show that better sterilization alternatives existed in 1991. He concluded, in one sentence and without any support, that the industry standard was to sterilize implants in an inert gas instead of air. However, as we held in our prior opinion, “[the] testimony that Zim-mer should have sterilized the subject implant through gamma irradiation in an inert environment is wholly unfounded. The record reveals that, at the time of the subject I/B Knee implant’s manufacture (1991), it was virtually universal industry practice to sterilize such implants by gamma irradiation in air. Indeed, no manufacturer at that time employed any of [the] proffered methods, and [Dr. Rose] has cited no contemporary articles counseling the use of such methods.” Id. at 537; see also McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657-58 (7th Cir.1998) (holding that a “bare conclusion” offered without explanation or empirical support fails the reliability requirement of Rule 702). To the contrary, “the record suggests that the I/B Knee at issue is one of the most successful knee implants ever studied, has the longest and highest survivorship rate published for any knee prosthesis, and has even been called the “gold standard” of its kind.” Fuesting I, 421 F.3d at 537. For all these reasons, the district court did not abuse its discretion in excluding Dr. Rose’s testimony.
Likewise, as we found before, because Dr. McKeehnie’s testimony on causation primarily relies on an excluded expert opinion (in this case, Dr. Rose’s), the district court did not err in excluding it. See Fuesting I, 421 at 537. Given that all causation testimony has been excluded, Fuesting’s strict liability and negligence claims necessarily fail, and summary judgment in favor of Zimmer is appropriate. Id.
B. Alleged Discovery Violation
Fuesting argues that before this court’s ruling in Fuesting I, Zimmer failed to disclose certain documents, though it is not clear what these documents are. He argues that had Zimmer disclosed them, this court would not have excluded Dr. Pugh’s testimony. As a result of this alleged discovery violation, Fuesting moved for sanctions — he asked the district court to award summary judgment in his favor— which the district court denied. As the district court noted in its opinion, which we review for abuse of discretion, Fuesting’s motion to compel the production of these documents was originally denied as untimely. See Cerutti v. BASF Corp., 349 F.3d 1055, 1067 (7th Cir.2003). Moreover, given the variety of reasons for excluding this expert testimony in Fuesting I, Fuest-ing’s argument that these documents would have changed the court’s decision is unpersuasive. So, the district court did not err in denying the requested sanctions.
III. CONCLUSION
For the foregoing reasons, the district court’s exclusion of the testimony of Drs. Rose and McKeehnie, denial of Fuesting’s request for sanctions, and award of summary judgment in favor of Zimmer, are all AFFIRMED.
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MEMORANDUM **
Appellants Christopher Glen Flores and Gary B. Wesley (“Appellants”) appeal the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court’s summary judgment in Chapter 13 debtor Snyder James Oh’s adversary proceeding. The bankruptcy court concluded that Appellants violated the automatic stay and bankruptcy discharge order by taking action in a state court case against Oh for fraud and conversion. The bankruptcy court awarded $16,659.35 in attorneys’ fees and costs to Oh as damages. We review de novo the bankruptcy court’s grant of summary judgment. In re Pena, 155 F.3d 1108, 1110 (9th Cir.1998). We review for clear error the bankruptcy court’s factual determinations underlying the award of the attorneys’ fees, and for abuse of discretion its decision to award attorneys’ *577fees. In re DeVille, 361 F.3d 539, 547 (9th Cir.2004); In re Claremont Acquisition Corp., 113 F.3d 1029, 1031 (9th Cir.1997). We affirm.
An aggrieved debtor may initiate a contempt proceeding in the bankruptcy court to obtain compensatory damages and attorneys’ fees from a creditor who violates a discharge injunction. Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir.2002). Oh’s adversary complaint initiated such a contempt proceeding. Oh properly sought relief from the bankruptcy court that issued the discharge order. He did not assert a private cause of action in the district court against Appellants as prohibited by Walls.
Nor was the discharge injunction vague and indefinite. The terms of the discharge injunction were unambiguous and fixed by statute. In re Moncur, 328 B.R. 183, 191-92 (9th Cir. BAP 2005). Appellants were enjoined from taking any action against Oh. Nevertheless, Appellants persisted in aggressively litigating their state claims against Oh in spite of having received notice of the discharge injunction as well as fair warning from Oh’s counsel that their actions violated the injunction.
Finally, the bankruptcy court did not abuse its discretion in awarding $16,659.35 in attorneys’ fees and costs as damages for Appellants’ violation of the automatic stay and discharge injunction. A bankruptcy court has the discretion to impose such damages as sanction for contempt under 11 U.S.C. §§ 105(a) and 362. In re Dyer, 322 F.3d 1178, 1189-95 (9th Cir.2003). The bankruptcy court carefully reviewed the declarations and invoices submitted by Oh’s attorneys and only awarded those fees and costs that were incurred by the attorneys for responding to and prosecuting Appellants’ violations of the automatic stay and discharge injunction. The bankruptcy court’s factual determinations regarding the amount of attorneys fees and costs incurred by Oh’s attorneys are supported by the record and are not clearly erroneous.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
Willie Holland was sentenced to a total of 77 months’ imprisonment and 3 years’ supervised release after he pleaded guilty to possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). Two months into his supervised release, Holland was arrested for possessing cocaine with intent to distribute and, after pleading guilty in state court, was sentenced to a year in prison. The district court then revoked his supervised release and ordered him to serve another 24 months’ imprisonment. Holland appeals, but his appointed counsel has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Holland opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Holland’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir .2002).
At his revocation hearing Holland stipulated that he violated the conditions of his supervised release by committing the state drug crime, and the only conceivable ground for appeal identified by counsel is whether 24 months is too much time. We will uphold a term of reimprisonment imposed on revocation of supervised release unless it is “plainly unreasonable,” a very narrow standard. United States v. Kizeart, 505 F.3d 672, 674-75 (7th Cir.2007). In selecting an appropriate prison term to follow revocation, district courts must consider the policy statements in the guidelines, see U.S.S.G. ch. 7, pt. B, and the sentencing factors set out in 18 U.S.C. § 3553(a). United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). In this case *550the court, by statute, could not imprison Holland for more than two years, see 18 U.S.C. §§ 3583(e)(3), 3559(a)(3), 922(g)(1), even though his Grade A violation and criminal history category of VI yielded a guidelines range of 33 to 41 months’ reim-prisonment, see U.S.S.G. §§ 7Bl.l(a)(l), 7B1.4(a). In selecting 24 months the court weighed the § 3553(a) factors, including the nature of the underlying drug violation and the need to protect the public and promote respect for the law — -especially in light of how quickly Holland had reoffend-ed once released from prison. As counsel notes, it would be frivolous to contend that the court’s evaluation of the statutes and guidelines factors was inadequate.
Counsel questions whether Holland could argue that his term of reimpris-onment is unreasonable in light of his time already served in state custody. Before pleading guilty in state court, Holland already had spent almost 18 months in state custody, most of which was credited against his state sentence. He argued at the revocation hearing that the district court should imprison him for just 6 months to account for the time in state custody, but the court declined to award any reduction below the 24-month statutory maximum.
District courts are not required to shorten a term of reimprisonment to annul time served in state custody for misconduct underlying the revocation, see U.S.S.G. § 7B1.3(f); United States v. Husko, 275 F.3d 600, 603 (7th Cir.2001); United States v. Haney, 232 F.3d 585, 588-89 (7th Cir.2000). In this case the court emphasized that it would have imposed a longer term of reimprisonment if the statutory maximum was higher. The court explained that Holland already had received a break from having a statutory maximum well below the bottom of the guidelines range. And the court correctly noted that postrevocation reimprisonment is part of the penalty for the original offense and separate from any punishment for an offense underlying revocation. See Johnson v. United States, 529 U.S. 694, 700-01, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Any challenge to the length of Holland’s term on this ground would be frivolous.
In his Rule 51(b) response, Holland questions whether he is entitled to credit under 18 U.S.C. § 3585(b) for the almost 6 months in state custody that was not applied to his state sentence. But it is the Bureau of Prisons, not the sentencing court, that computes the credit due under § 3585(b). United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Ross, 219 F.3d 592, 594 (7th Cir.2000). A claim based on § 3585(b) would thus be frivolous in this appeal.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476994/
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ORDER
Donta Phelon Davis appeals from his conviction and 105-month sentence for being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Davis contends that the district court improperly classified his prior conviction under Wisconsin law for second-degree reckless homicide, see Wis. Stat. § 940.06(1), as a crime of violence under U.S.S.G. § 4B1.2(a). See id. § 2K2.1(a)(2). The government concedes error and agrees that in light of this court’s decision in United States v. Woods, 576 F.3d 400 (7th Cir.2009), the correct disposition is to vacate and remand for resentencing.
In Woods, 576 F.3d at 412-13, we held that an offense in which the mental state is recklessness does not meet the standards for crimes of violence established by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 1586, 170 L.Ed.2d 490 (2008). Second-degree reckless homicide, in violation of Wis. Stat. § 940.06(1), is therefore not a crime of violence under § 2K2.1(a)(2). See United States v. High, 576 F.3d 429, 430-31 (7th Cir.2009). Davis did not object at sentencing to the classification of his reckless-homicide conviction, but in light of Begay and our recent post-Begay precedent, the district court’s classification of this offense was plain error. See United States v. Gear, 577 F.3d 810, 812 (7th Cir.2009); High, 576 F.3d at 431.
We therefore VACATE Davis’s sentence and REMAND for further proceedings in light of Begay and Woods.
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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/8476996/
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ORDER
Dawn Kittelson applied for disability insurance benefits claiming that she is disabled by fibromyalgia, chronic fatigue, restless leg syndrome, and depression. An administrative law judge (ALJ) denied her claim after a hearing, but that decision was vacated when the Appeals Council granted Kittelson’s petition for review. After a second hearing, the ALJ again denied the claim. The Appeals Council affirmed, and the ALJ’s decision became the final decision of the Commissioner of Social Security. That decision was again affirmed by the district court following an appeal by Ms. Kittelson. We are next in line to consider Ms. Kittelson’s case.
On appeal to us, Kittelson asserts that the ALJ made an improper adverse credibility determination, erroneously found that her depression was not severe, incorrectly determined that she could do light work when able to change position, and posed an incomplete hypothetical to a vocational expert. Because the ALJ’s decision-while flawed-is adequately articulated and supported by substantial evidence, we uphold the denial of benefits.
Kittelson, who is 54 years old, worked for almost 25 years in a plastics factory before leaving the labor force due to chronic pain. She first applied for benefits in 2004, alleging disability as of 2001. It is undisputed that Kittelson has several problems: she is obese and suffers from fibromyalgia, restless leg syndrome, depression, back problems, and carpal tunnel syndrome.
Unemployment left Kittelson without health insurance, but she has seen several doctors. Dr. John White, a family practice physician, and Brad Kreuger, White’s assistant, treated Kittelson. They diagnosed her with fatigue, chronic pain, and depression, prescribed her anti-depressants, and recommended specialists who diagnosed her with fibromyalgia and restless leg syndrome.
Two doctors who examined Kittelson within 14 months of each other reached *556similar prognoses for her capacity to work. Neither Dr. Donald Bodeau, whom she saw for an occupational health evaluation in 2003, nor Dr. Qingquan Fu, who examined her at the behest of the SSA in 2004, determined that Kittelson was incapable of working. Dr. Bodeau found that she was “not disabled from employment in any sense,” while Dr. Fu suggested that she could perform light work with intermittent rest.
Dr. Marcus Desmonde, a licensed psychologist, evaluated Kittelson for disability benefits in 2004 and 2007. He found that she had average concentration and no memory problems. He diagnosed her with depressive disorder but consistently found that she had mild to moderate symptoms and functional limitations in the last six months. In 2004 he concluded that Kittel-son could not tolerate the stress of employment, but in 2007 he determined that she might have difficulty working, primarily due to her chronic pain.
In 2007 Dr. Larry Studt, an occupational medicine specialist, performed the most recent physical examination of Kittelson to evaluate her benefits claim. Dr. Studt recorded that she had difficulty rising from a squatting position, bending, getting on and off the exam table, hopping, and squatting, and that her obesity likely played a role in her fatigue and mobility problems. He also noted that her prognosis was slowly deteriorating with regard to her daily activities and pain level. Nonetheless, Dr. Studt determined that she could sit and stand with a change in position every 30 to 45 minutes, walk 1/4 to mile, lift and carry weights under 20 pounds, and travel with a change in position every 2 hours.
The opinions of nonexamining state agency reviewers regarding Kittelson’s ability to work mirrored the assessments of the treating doctors who examined her.
At the first hearing, Kittelson, her husband, and a vocational expert testified. As we noted, the ALJ upheld the denial of benefits. The Appeals Council vacated the decision and remanded for further consideration of Dr. Desmonde’s psychological opinion and to obtain additional evidence pertaining to Kittelson’s depression.
At the second hearing, in June 2007, both Kittelson and a vocational expert testified. Kittelson reported being in constant pain since 2003 and discussed her dwindling participation in dog shows and infrequent assistance with her husband’s business. She also explained that she rarely saw a doctor because she lacked health insurance. She asserted that she was incapable of full-time employment because she could not sit upright for extended periods, would probably fall asleep, and had memory and concentration problems. The vocational expert testified that she was familiar with Kittelson’s record, and then, in response to the ALJ’s hypothetical, she concluded that a woman with Kit-telson’s educational and vocational background and impairments who was limited to light work would not be able to do any of Kittelson’s past work. But she testified that hundreds of other jobs in the local economy would be available. In response to additional hypotheticals, she testified that there were jobs available — such as surveillance system monitor and charge account clerk — if the person needed a 1-to 5-minute break after sitting or standing for 45 minutes and was limited to sedentary work.
The ALJ evaluated Kittelson’s claim under the familiar five-step analysis, 20 C.F.R. §§ 404.1520, 416.920. He determined that Kittelson had not engaged in substantial gainful activity (step one); suffered from severe impairments as a result of fibromyalgia, degenerative disc disease of the lumbar spine, obesity, and carpal *557tunnel syndrome (step two); did not have any impairments that met or equaled the listings (step three); retained the residual functional capacity to do light work if able to change from a standing to seated position for 1 to 5 minutes at least every 45 minutes (step four); and could no longer perform her former job, but could do other jobs and thus was not disabled (step five). He also found that Kittelson’s statements about the intensity, persistence, and limiting effects of her impairments were not entirely credible and out of proportion to the objective evidence in the record.
The Appeals Council denied Kittelson’s request for further review of the ALJ’s revised decision. The district court, on Kittelson’s appeal, noted several errors in the ALJ’s decision but found them to be harmless and affirmed.
We will affirm the denial of disability benefits so long as the ALJ’s decision is supported by substantial evidence, meaning evidence “sufficient for a reasonable person to accept as adequate to support the decision,” and we will not reweigh evidence or substitute our judgment for that of the ALJ. Ketelboeter v. Astrue, 550 F.3d 620, 624 (7th Cir.2008) (internal citation omitted). The ALJ must build a “logical bridge” between the evidence and his conclusions. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.2004) (internal citation omitted). Even if “reasonable minds could differ” about whether a claimant is disabled, we will affirm the ALJ’s denial of benefits so long as the decision has adequate support. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.2008).
1. Adverse credibility finding
On appeal, Kittelson begins by contending that the ALJ erred by finding her not credible. She finds two faults with the ALJ’s analysis. First, she argues that his adverse credibility determination did not take into account her obesity and her medications, in violation of the regulations. In making a credibility determination, the ALJ must consider the claimant’s pain level, medications, treatment, daily activities, and limitations, 20 C.F.R. § 404.1529(c), and must justify his finding with “specific reasons supported by the record.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009).
Contrary to Kittelson’s contention, the ALJ considered the required matters under section 404.1529(c) and referenced the record to justify his conclusion. He made several references to both her medications and obesity in his chronological summary of her health history before concluding that her complaints were “grossly out of proportion” to the objective findings. He did not specifically discuss how Kittelson’s obesity and medications factored into his assessment of her credibility, but his summary of her medical record reflects that he was aware of and considered them, so any error in not highlighting them was harmless. See Prochaska v. Barnhart, 454 F.3d 731, 736-38 (7th Cir.2006) (failure to discuss impact of obesity was harmless error where ALJ relied on record that addressed it).
Second, Kittelson maintains that the ALJ’s adverse credibility determination was erroneous because it was based on a mischaracterization of her daily activities. He concluded that she remained “busy” in and out of the home, citing her participation in dog shows and assistance to her husband in his business. Kittelson argues that the ALJ ignored how she accomplished activities and the amount of rest that she required following any exertion.
The ALJ’s adverse credibility finding was not perfect. But it was also not “patently wrong.” See Poivers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). Because an ALJ is supposed to consider a claimant’s limitations in performing household activities, the ALJ erred in failing to ac*558knowledge that Kittelson did not attend dog shows or assist her husband on a daily basis, and that when she was active she took frequent breaks. See Moss v. Astrue, 555 F.3d 556, 562 (7th Cir.2009). But he specified another, valid reason for finding her not credible: the discrepancy between her testimony of having memory and concentration problems and being unable to work full-time and the evaluations of doctors who found no objective evidence of such impairments, and — with the exception of Dr. Desmonde — concluded that she would be able to perform light work if allowed to rest or change position. This discrepancy provided a sufficient basis for the ALJ’s adverse credibility determination.
2. Severity of Kittelson’s depression
Kittelson next challenges the ALJ’s step-two finding that her mental impairment (depression) was not severe. She makes several arguments for why this conclusion was incorrect. First, she argues that the ALJ erroneously dismissed the ongoing care for depression that she received from Kreuger, Dr. White’s assistant. Specifically, she faults the ALJ for not discussing Kreuger’s opinion as to the severity of her depression and how it affects her ability to work.
The information that Kittelson faults the ALJ for disregarding is not in the record. Although Kreuger treated Kittelson consistently and his opinion might have been entitled to controlling weight, see 20 C.F.R. § 404.1527(d)(2); Batter v. Astrue, 532 F.3d 606, 608 (7th Cir.2008), he did not provide any opinions for the ALJ to weigh. His only assessment of her depression was to note that it existed and to renew her prescriptions.
Second, Kittelson maintains that the ALJ failed to consider how her lack of insurance impeded her ability to seek treatment. She relies on SSR 96-7p, which prohibits an ALJ from drawing negative inferences about a claimant’s failure to seek treatment without first considering explanations for the failure, including inability to afford regular treatment. See 1996 WL 374186 at *7-8; Myles v. Astrue, 582 F.3d 672, 677 (7th Cir.2009).
As the district court found, the ALJ did err by not considering the impact of Kittel-son’s lack of health insurance, but this error was harmless because he also based his assessment on the absence of evidence of serious functional limitations due to depression or episodes of decompensation. See 20 C.F.R. § 404.1520a(c)(3). The ALJ based this conclusion on the activities Kit-telson reported in her hearing testimony, her cooperation and engagement with medical evaluators, and the lack of findings of memory or concentration deficits in her mental health evaluations. Another ALJ might have determined that Kittelson’s limitations were moderate or even severe, but substantial evidence supports the ALJ’s conclusion and he “rationally articulated” its basis. See Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.2002). Accordingly, the ALJ’s error in failing to consider the significance of Kittelson’s lack of health insurance was harmless.
Third, Kittelson argues that in determining the severity of her depression, the ALJ improperly ignored the opinion of Dr. Desmonde, the only mental health specialist to evaluate her. Dr. Desmonde found that Kittelson might lack the capacity to tolerate the stress of competitive employment. Kittelson relies on Wilder v. Chater, 64 F.3d 335 (7th Cir.1995), where we determined that the ALJ unreasonably disregarded the testimony of an independent psychiatrist to conclude that the claimant had not been severely disabled by depression until after her last insured date.
*559But unlike the ALJ in Wilder, who erroneously relied on “unimpressive” facts and conjecture to contradict the psychiatrist’s opinion, 64 F.3d at 337-38, here the ALJ rejected Dr. Desmonde’s conclusion because it was not supported by objective findings or Kittelsoris testimony and was based on Kittelsoris chronic pain, not her depression. In light of these explanations and their foundation in the record, the ALJ did not err in giving little weight to Dr. Desmonde’s opinion. See White v. Barnhart, 415 F.3d 654, 659 (7th Cir.2005).
3. Residual functional capacity finding
Kittelson next contends that the ALJ did not sufficiently articulate the basis for his residual functional capacity (RFC) finding or consider all of the evidence relevant to this determination. She asserts that the ALJ’s opinion lacks a “logical bridge” between the evidence and his conclusion that she could do light work if given a break of no more than 5 minutes every 45 minutes because, she says, he never explained the basis for his reasoning or pointed to anything in the record that supported it.
The ALJ sufficiently justified his conclusion about Kittelsoris RFC. He outlined the diagnoses of various doctors who evaluated Kittelson and explained that his conclusion “placed great weight” on Dr. Studt’s opinion, which he believed was generally consistent with the findings of Dr. Bodeau and Dr. Fu and with the state examiners’ conclusions that Kittelson could perform light work. The ALJ did not explicitly state that he based his imposed limitation (a change in position for 1 to 5 minutes every 45 minutes) on Dr. Studt’s conclusion that Kittelson could sit and stand for 30 to 45 minutes at a time with a change in position. But given the ALJ’s summary of Dr. Studt’s findings and statement about his heavy reliance on Dr. Studt’s conclusions, he sufficiently built a “logical bridge” between the evidence of Kittelsoris impairments and his RFC finding.
Kittelson also argues that the ALJ did not discuss how her obesity affected the RFC, in violation of SSR 02-lp. She concedes that in Prochaska, 454 F.3d at 736-37, we held that a similar error may be harmless, but she maintains that her case is distinguishable because her medical records specifically recognize that her obesity impacts her other impairments. For example, in his examination notes Dr. Studt stated that he believed Kittelsoris obesity exacerbated her fatigue and mobility problems.
Although it is troubling that the ALJ failed to discuss the impact of Kittelsoris obesity, the ALJ’s failure to do so was harmless because he based his RFC on the limitations identified by doctors—like Dr. Studt—who specifically noted Kittelsoris obesity, so it was “factored indirectly” into his analysis. See Skarhek v. Barnhart, 390 F.3d 500, 504 (7th Cir.2004).
4. Hypothetical question to vocational expert
Finally, Kittelson argues that the ALJ’s hypothetical question to the vocational expert was incomplete and accordingly his step-five determination was incorrect. She contends that the ALJ failed to incorporate into his hypothetical her difficulty bending and squatting and her obesity. An ALJ’s hypothetical questions to a vocational expert usually must include all limitations supported by medical evidence in the record, but there is an exception when the expert independently learned of the limitations and presumably accounted for them. Steele, 290 F.3d at 942.
The ALJ’s hypothetical was adequate because the record does not support a bending and squatting limitation, and the *560failure to include an obesity limitation was harmless error. Kittelson’s contention about her problems bending and squatting is based entirely on Dr. Studt’s examination notes, but Dr. Studt’s prognosis did not include any bending or squatting limitations, so the ALJ was not required to include them in his hypothetical. See Steele, 290 F.3d at 942. In contrast, the record did show that Kittelson was obese and her obesity impacted her mobility and energy level. But the vocational expert testified that she had reviewed the record, so she knew that Kittelson was obese and presumably took that into account when responding to the ALJ’s hypothetical. Further, the ALJ’s hypothetical was drawn from the limitations suggested by doctors who noted Kittelson’s obesity. Her obesity therefore was indirectly factored into the hypothetical, and the ALJ’s failure to explicitly include it was harmless error. See Skarbek, 390 F.3d at 504.
For these reasons, the judgment of the district court is AFFIRMED.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8476998/
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ORDER
Arthur W. Fuesting alleges that Zim-mer, Inc.’s knee implant was improperly sterilized and as a result malfunctioned, causing him pain and suffering. In our earlier opinion we excluded the testimony of Dr. James Pugh, Fuesting’s initial causation expert. On remand, Fuesting employed the services of Dr. Robert Rose, who testified that the knee implant oxidized while it was implanted because Zim-mer used a faulty sterilization process. Dr. Rose’s testimony suffers from the same deficiencies upon which we excluded Dr. Pugh’s testimony in the earlier opinion — most importantly, it fails to link his general theories about implant oxidation to Fuesting’s knee implant in particular. Although Dr. Rose theorizes that Fuesting’s knee implant failed due to oxidation that occurred while it was implanted, he fails to articulate how his conclusions about knee implants in general pertain to Fuesting’s knee implant in particular. The record indicates that this oxidation could have occurred in the six years after it was ex-planted but before Dr. Rose examined it. He also fails to show that better sterilization methods existed at the time Fuest-ing’s knee was implanted. In fact, the record reveals that the method used by Zimmer was the industry standard. The district court did not err in excluding Dr. Rose’s testimony or that of Dr. James McKechnie, who based his conclusions on Dr. Rose’s theories. And without his experts, Fuesting cannot prove causation, so the district court properly granted summary judgment in Zimmer’s favor.
I. BACKGROUND
A full factual background for this case can be found in our earlier opinion, Fuest-ing v. Zimmer, Inc., 421 F.3d 528 (7th Cir.2005) (“Fuesting /”), so we need recount only those facts directly relevant to this appeal. Zimmer, Inc. manufactures orthopedic implants. In 1992, Arthur W. Fuesting had his right knee replaced with Zimmer’s I/B Knee implant. By May 2001, Fuesting was experiencing swelling in his right knee. Before its implantation, Zimmer sterilized the knee implant using a technique called gamma irradiation in air (“GIA”).
In October 2002, Fuesting filed suit against Zimmer on a theory of design defect, claiming negligence and strict liability based on Zimmer’s decision to sterilize his right knee implant using GIA instead of another method. Fuesting proffered Dr. James Pugh as an expert witness in support of his claims. Dr. Pugh opined that the design of the implant was defective because it delaminated and therefore failed due to oxidation caused by the GIA sterilization process, and manufacturers such as Zimmer should have known in 1991 that better sterilization processes were available (such as gamma irradiation in an inert environment or sterilization with ethylene oxide). The district court denied Zim-mer’s pre-trial motion to exclude Dr. Pugh’s testimony as unreliable under Federal Rule of Evidence 702. The case went to trial, and a jury found in favor of Fuest-ing, awarding him $650,000 in damages.
Zimmer appealed, and we reversed in Fuesting I, finding that the district court erred by failing to exclude Dr. Pugh’s testimony as unreliable. Specifically, we found that Dr. Pugh failed to: (1) “bridge the analytical gap” between his opinion that GIA sterilization leads to oxidation and the failure of Fuesting’s knee implant in particular; (2) show that his methods *562were subject to peer review and approval; (3) rule out alternative possibilities for causation; and (4) show that better sterilization methods were available in 1991. We instructed the trial court to enter judgment for Zimmer, but before it could do so, the Supreme Court issued its decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006), which suggested that it was inappropriate for a court of appeals to award judgment in the absence of a properly-filed postjudgment motion for judgment as matter of law in the district court. Therefore, we amended the original opinion and remanded the case to the district court for further proceedings. Fuesting v. Zimmer, Inc., 448 F.3d 936 (7th Cir.2006).
On remand, Fuesting hired a new expert, Dr. Robert Rose, who submitted a paltry fivepage expert report primarily filled with background facts. Dr. Rose’s report stated that upon examination, he found a tell-tale “white band” indicating that Fuesting’s knee implant failed because of oxidation that occurred while the implant was “in vivo” (implanted in Fuest-ing). The district court excluded Dr. Rose’s testimony, and also excluded the testimony of Fuesting’s treating physician, Dr. McKechnie, because he relied on the opinion of Dr. Rose in forming his conclusions. Since the district court excluded all of Fuesting’s causation testimony, it granted Zimmer’s summary judgment motion. Fuesting now appeals.
II. ANALYSIS
A. Exclusion of Expert Testimony from Dr. Rose and Dr. McKechnie
In both strict liability and negligence actions regarding design, Illinois law (under which Fuesting’s claims proceed) requires plaintiffs to establish “the existence of a defective condition in the product at the time it left the manufacturer’s control,” Carrizales v. Rheem Mfg. Co., 226 Ill. App.3d 20, 168 Ill.Dec. 169, 589 N.E.2d 569, 580 (1991), and “a causal link between the alleged design defect ... and [the plaintiffs] injury,” Baltus v. Weaver Div. of Kidde & Co., 199 Ill.App.3d 821, 145 Ill.Dec. 810, 557 N.E.2d 580, 586 (1990). Toward both these ends, Fuesting proffered the expert testimony of Drs. Rose and McKechnie. Without expert causation testimony, Fuesting’s claims fail. Fuesting I, 421 F.3d at 537-38.
The admissibility of scientific expert testimony is governed by Federal Rule of Evidence 702, and in particular Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Rule 702 requires the district court to perform a “gate-keeping” function before admitting expert scientific testimony in order to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Before considering whether the testimony “will assist the trier of fact to understand or determine a fact in issue,” a district court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93, 113 S.Ct. 2786. To aid courts in as*563sessing the reliability of scientific expert testimony, the Supreme Court set forth the following, non-exhaustive list of “guideposts” for consideration: (1) whether the scientific theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory’s known or potential rate of error when applied; and (4) whether the theory has been “generally accepted” in the scientific community. Id. at 593-94, 113 S.Ct. 2786; see also Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir.2002). We review de novo whether the court correctly applied Daubert’s framework, and we review the court’s decision to admit or exclude expert testimony for abuse of discretion. Kunz v. DeFelice, 538 F.3d 667, 675 (7th Cir.2008).
In this case, Dr. Rose’s testimony fails for essentially the same reasons that Dr. Pugh’s did. First, Dr. Rose’s testimony did not show that his theory that these knee implants oxidize “in vivo” has sufficient acceptance in the scientific community. He cited several articles that he wrote, the most recent one in 1986, but the bulk of these articles concern the oxidizing of an implant prior to implantation. He failed to point to any peer reviewed studies that discuss the oxidation rates of this type of implant in vivo. In this case, the implant sat on a shelf for seven months before implantation, was in vivo for nine years, and then sat on a shelf again for six additional years before Dr. Rose examined it. Dr. Rose failed to cite any articles or studies that he or any one else conducted regarding how one can discern whether the oxidation occurred before or after implantation. And in this case, it is perfectly plausible that the oxidation occurred after it was removed. Dr. Rose also did not rule out possible alternative methods of causation. Zimmer, as well as the implant industry as a whole, admits that GIA causes at least some oxidization. However, Dr. Rose failed to proffer any evidence that GIA caused this oxidation to occur at a rapid rate while the implant was in Fuest-ing. Nor did he articulate why this oxidation could not have occurred during the six years after it was explanted and before he examined it, rather than while it was in vivo. He also did not discuss other possible reasons for the device’s failure, such as Fuesting’s weight or gait. Nor does he explain how the device’s oxidation caused the device to fail — the mere presence of oxidation does not prove that the oxidation caused the device to malfunction.
More importantly, like Dr. Pugh, Dr. Rose has failed to “bridge the analytical gap” between the accepted fact that GIA sterilization causes at least some amount of oxidation and his ultimate conclusion that Fuesting’s knee implant in particular failed because GIA, rather than another sterilization method, was used. One indicator of unreliability is the unjustifiable extrapolation from an accepted premise to an unfounded conclusion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (“A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”). Dr. Rose did not answer a variety of questions posed by this court in its earlier opinion with any specificity. Among other things, he failed to address “with respect to Fuesting’s implant in particular, what quantum of each variable is required to set this agreed upon chain reaction in motion. How much radiation does it take to cause oxidation, and to what degree? How much oxidation must occur to render polyethylene more susceptible to delamination?”. Fuesting I, 421 F.3d at 536. As we noted, “some greater methodology is required to bridge the analytical gap between general principles and particular conclusions, and to vest thereby the opinion with requisite reliability.” Id. Here, Dr. Rose did not employ any “greater methodology” that linked his general *564observations with Fuesting’s knee implant in particular.
Last, Dr. Rose failed to show that better sterilization alternatives existed in 1991. He concluded, in one sentence and without any support, that the industry standard was to sterilize implants in an inert gas instead of air. However, as we held in our prior opinion, “[the] testimony that Zim-mer should have sterilized the subject implant through gamma irradiation in an inert environment is wholly unfounded. The record reveals that, at the time of the subject I/B Knee implant’s manufacture (1991), it was virtually universal industry practice to sterilize such implants by gamma irradiation in air. Indeed, no manufacturer at that time employed any of [the] proffered methods, and [Dr. Rose] has cited no contemporary articles counseling the use of such methods.” Id. at 537; see also McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657-58 (7th Cir.1998) (holding that a “bare conclusion” offered without explanation or empirical support fails the reliability requirement of Rule 702). To the contrary, “the record suggests that the I/B Knee at issue is one of the most successful knee implants ever studied, has the longest and highest survivorship rate published for any knee prosthesis, and has even been called the “gold standard” of its kind.” Fuesting I, 421 F.3d at 537. For all these reasons, the district court did not abuse its discretion in excluding Dr. Rose’s testimony.
Likewise, as we found before, because Dr. McKeehnie’s testimony on causation primarily relies on an excluded expert opinion (in this case, Dr. Rose’s), the district court did not err in excluding it. See Fuesting I, 421 at 537. Given that all causation testimony has been excluded, Fuesting’s strict liability and negligence claims necessarily fail, and summary judgment in favor of Zimmer is appropriate. Id.
B. Alleged Discovery Violation
Fuesting argues that before this court’s ruling in Fuesting I, Zimmer failed to disclose certain documents, though it is not clear what these documents are. He argues that had Zimmer disclosed them, this court would not have excluded Dr. Pugh’s testimony. As a result of this alleged discovery violation, Fuesting moved for sanctions — he asked the district court to award summary judgment in his favor— which the district court denied. As the district court noted in its opinion, which we review for abuse of discretion, Fuesting’s motion to compel the production of these documents was originally denied as untimely. See Cerutti v. BASF Corp., 349 F.3d 1055, 1067 (7th Cir.2003). Moreover, given the variety of reasons for excluding this expert testimony in Fuesting I, Fuest-ing’s argument that these documents would have changed the court’s decision is unpersuasive. So, the district court did not err in denying the requested sanctions.
III. CONCLUSION
For the foregoing reasons, the district court’s exclusion of the testimony of Drs. Rose and McKeehnie, denial of Fuesting’s request for sanctions, and award of summary judgment in favor of Zimmer, are all AFFIRMED.
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01-04-2023
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11-05-2022
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