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https://www.courtlistener.com/api/rest/v3/opinions/8477000/
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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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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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MEMORANDUM **
Arizona state prisoner Jason G. Van Norman appeals from the district court’s *598judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Van Norman contends that his aggravated sentence was imposed in violation of the Sixth Amendment because the trial court relied on judge-found aggravating factors to sentence him above the presumptive sentencing range. Because the state trial judge relied on one permissible factor in enhancing Van Norman’s sentence, the Arizona Court of Appeals’ decision rejecting this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1); see also Butler v. Curry, 528 F.3d 624, 643 (9th Cir.2008).
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 **
Hovhannes Avetisyan, a native and citizen of Armenia, petitions for review from the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Wang *601v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the IJ’s adverse credibility finding based upon Avetisyan’s submission of a fraudulent newspaper article, hospital certificate, and National Democratic Union card. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (fraudulent documents going to the heart of the claim may justify an adverse credibility finding). Therefore, Avetisyan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Avetisyan failed to exhaust his challenge to the IJ’s frivolousness finding before the BIA, and therefore we dismiss the petition for review as to that claim. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004).
In his opening brief Avetisyan failed to challenge to the IJ’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not raised are waived).
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 **
Jose Angel Sanchez Suarez and Maria Del Pilar Camacho Solis, husband and wife and natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. To the extent we have jurisdiction it is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003) and de novo claims of constitutional violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen as untimely because the motion was filed more than one year after the BIA’s final order of removal. See 8 C.F.R. § 1003.2(c)(2).
Contrary to the petitioners’ contention, Congress did not violate the constitution when it repealed suspension of deportation, and replaced it with cancellation of removal as the available form of relief for aliens who were placed in removal proceedings on or after April 1, 1997. See Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108 (9th Cir.2003); Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163—65 (9th Cir.2002).
Petitioners’ equal protection challenge to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) is foreclosed by our decision in Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602-03 (9th Cir. 2002) (“Congress’s decision to afford more favorable treatment to certain aliens ‘stems from a rational diplomatic decision to encourage such aliens to remain in the United States’ ”). Petitioners’ due process challenge to NACARA also fails. See Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir.2002) (rejecting a due process challenge because petitioner failed to demonstrate that he was deprived of a qualifying liberty interest).
*612We lack jurisdiction to review the BIA’s July 22, 2005, order dismissing petitioners direct appeal from an immigration judge’s decision denying their application for cancellation of removal because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
Further, we lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
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 **
Marcos Carmona-Lopez, a native and citizen of Mexico, petitions pro se from the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s order removing Carmona-Lopez to Mexico. To the extent we have jurisdiction it is governed by 8 U.S.C. § 1252. We review de novo claims of constitutional violations. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s March 1997 order because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
Carmona-Lopez’s contention that the BIA violated his due process rights by issuing a streamlined decision is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir.2003).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Hovhannes Avetisyan, a native and citizen of Armenia, petitions for review from the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Wang *601v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir.2003), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the IJ’s adverse credibility finding based upon Avetisyan’s submission of a fraudulent newspaper article, hospital certificate, and National Democratic Union card. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (fraudulent documents going to the heart of the claim may justify an adverse credibility finding). Therefore, Avetisyan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Avetisyan failed to exhaust his challenge to the IJ’s frivolousness finding before the BIA, and therefore we dismiss the petition for review as to that claim. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir.2004).
In his opening brief Avetisyan failed to challenge to the IJ’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not raised are waived).
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 **
Jesus Arcadio Sajche Tecum, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his application for cancellation of removal and denying his motion to reinstate his previously withdrawn application for asylum and to reopen to apply for relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reinstate an asylum application. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 (9th Cir.2003). We review de novo questions of law and due process claims. Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir.2008). We dismiss in part, deny in part, and grant in part the petition for review, and remand.
Sajche Tecum’s contentions that the BIA applied an incorrect hardship standard and failed to consider relevant hard*609ship factors are not supported by the record and do not amount to colorable claims over which we would have jurisdiction. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.2009).
Sajche Tecum has failed to show that the immigration judge’s (“IJ”) conduct violated his due process rights. The record does not indicate that the IJ was predisposed to deny Sajche Tecum relief from removal, and her manner of questioning Sajche Tecum did not rise to the level of a procedural due process violation. See Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir.2003).
Sajche Tecum’s due process claim regarding his son’s testimony fails because his own counsel voluntarily proffered the witness’ written statements in lieu of oral testimony. See Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.2004). Moreover, Sajche Tecum has not shown prejudice from the alleged violation. See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.2002).
Sajche Tecum’s due process claim regarding faulty translation also fails because he and his counsel agreed to proceed in Spanish, and he does not provide any direct evidence of incorrectly translated words, unresponsive answers, or any expression of difficulty understanding the translator. See Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000).
The BIA did not abuse its discretion by denying Sajche Tecum’s motion to reinstate his previously withdrawn asylum application because he offered no explanation for the withdrawal. See INS v. Doherty, 502 U.S. 314, 324, 327, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (no abuse of discretion by denying motion to reopen because applicant failed to satisfactorily explain his previous withdrawal of his asylum and withholding application).
Because the BIA failed to address Sajche Tecum’s motion to reopen to apply for CAT relief, we remand for the BIA to determine if reopening is warranted. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir.2005) (“The BIA [is] not free to ignore arguments raised by a petitioner.”).
Finally, Sajche Tecum’s contention that the BIA failed to articulate its reasons for denying relief is not supported by the record.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part; GRANTED in part; and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Georgina Reyes Soriano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an immigration judge’s (“IJ”) decision denying her application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir.2001), and review de novo claims of due process violations, Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006). We deny the petition for review.
Substantial evidence supports the BIA’s determination that Reyes Soriano provided false testimony for the purpose of obtaining an immigration benefit, where Reyes Soriano testified that she lied to an asylum officer to avoid deportation and she did not admit the false testimony until her hearing before an IJ seven months later. See 8 U.S.C. § 1101(f)(6); Ramos, 246 F.3d at 1266. Reyes Soriano therefore was precluded from showing good moral character for the purpose of cancellation of removal. See 8 U.S.C. § 1101(f)(6).
Reyes Soriano’s claim that the agency deprived her of due process by failing to explicitly warn her that false testimony could bar her from receiving cancellation of removal is not persuasive. Reyes Soriano admits she swore under penalty of perjury that her statements to the asylum officer would be truthful.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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PER CURIAM:
We affirm the district court’s dismissal of this case for the reasons expressed in its Order of January 19, 2009, 2009 WL 113444.
AFFIRMED.
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MEMORANDUM **
Georgina Reyes Soriano, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an immigration judge’s (“IJ”) decision denying her application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Ramos v. INS, 246 F.3d 1264, 1266 (9th Cir.2001), and review de novo claims of due process violations, Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006). We deny the petition for review.
Substantial evidence supports the BIA’s determination that Reyes Soriano provided false testimony for the purpose of obtaining an immigration benefit, where Reyes Soriano testified that she lied to an asylum officer to avoid deportation and she did not admit the false testimony until her hearing before an IJ seven months later. See 8 U.S.C. § 1101(f)(6); Ramos, 246 F.3d at 1266. Reyes Soriano therefore was precluded from showing good moral character for the purpose of cancellation of removal. See 8 U.S.C. § 1101(f)(6).
Reyes Soriano’s claim that the agency deprived her of due process by failing to explicitly warn her that false testimony could bar her from receiving cancellation of removal is not persuasive. Reyes Soriano admits she swore under penalty of perjury that her statements to the asylum officer would be truthful.
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 **
Marcos Carmona-Lopez, a native and citizen of Mexico, petitions pro se from the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s order removing Carmona-Lopez to Mexico. To the extent we have jurisdiction it is governed by 8 U.S.C. § 1252. We review de novo claims of constitutional violations. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s March 1997 order because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
Carmona-Lopez’s contention that the BIA violated his due process rights by issuing a streamlined decision is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir.2003).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Federal prisoner Enrique Avalos-Barri-ga appeals from the district court’s judg*616ment denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Because Avalos-Barriga’s claim of ineffective assistance of counsel during trial has been explicitly addressed in a previous proceeding, we will not reconsider that issue. See United States v. Avalos-Barriga, 21 Fed.Appx. 626 (9th Cir.2001).
We deny Avalos-Barriga’s request to expand the certificate of appealability. See 9th Cir. R. 22 — 1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Genoveva Martinez Rios and her son Augustin Armenta Martinez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ denial of their motion to reopen the underlying denial of their application for cancellation of removal based on their failure to establish the requisite hardship to a qualifying relative.
Petitioners introduced new evidence that the female petitioner’s health has declined since the removal hearing to support their claim that the petitioners’ qualifying relative would experience extreme hardship if they were removed. We conclude that the *620BIA properly considered the new evidence offered by petitioners, and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
We do not consider petitioners’ contentions regarding the immigration judge’s failure to make findings regarding petitioners’ good moral character, lack of previous convictions, or their continuous presence in the United States because these contentions are not properly before us in our review of the BIA’s denial of the motion to reopen.
Petitioners do not raise any arguments concerning the BIA’s denial of their second motion to reopen as time and numerically barred, and therefore petitioners have waived any challenge to that decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (issues not supported by argument in a brief are deemed abandoned).
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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PER CURIAM:
We affirm the district court’s dismissal of this case for the reasons expressed in its Order of January 19, 2009, 2009 WL 113444.
AFFIRMED.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Federal prisoner Enrique Avalos-Barri-ga appeals from the district court’s judg*616ment denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Because Avalos-Barriga’s claim of ineffective assistance of counsel during trial has been explicitly addressed in a previous proceeding, we will not reconsider that issue. See United States v. Avalos-Barriga, 21 Fed.Appx. 626 (9th Cir.2001).
We deny Avalos-Barriga’s request to expand the certificate of appealability. See 9th Cir. R. 22 — 1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
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 **
Genoveva Martinez Rios and her son Augustin Armenta Martinez, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ denial of their motion to reopen the underlying denial of their application for cancellation of removal based on their failure to establish the requisite hardship to a qualifying relative.
Petitioners introduced new evidence that the female petitioner’s health has declined since the removal hearing to support their claim that the petitioners’ qualifying relative would experience extreme hardship if they were removed. We conclude that the *620BIA properly considered the new evidence offered by petitioners, and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
We do not consider petitioners’ contentions regarding the immigration judge’s failure to make findings regarding petitioners’ good moral character, lack of previous convictions, or their continuous presence in the United States because these contentions are not properly before us in our review of the BIA’s denial of the motion to reopen.
Petitioners do not raise any arguments concerning the BIA’s denial of their second motion to reopen as time and numerically barred, and therefore petitioners have waived any challenge to that decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (issues not supported by argument in a brief are deemed abandoned).
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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MEMORANDUM **
Francisco Morales-Barela, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“U”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the IJ’s findings of fact for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and questions of law, including claims of due process violations, de novo, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s determination that MoralesBarela failed to establish past persecution or a well-founded fear of future persecution on account of a protected ground. The agency correctly determined that Mara Salvatrucha is not a recognized social group and that Morales-Barela’s membership in a gang is not a protected ground. See Arteaga v. Mukasey, 511 F.3d 940, 943-45 (9th Cir.2007). Furthermore, Morales-Barela did not show he was targeted by police for his disagreement ■with anti-gang laws rather than for his gang activity. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir.2008). Lastly, Morales-Barela’s argument that his unwillingness to follow gang orders constitutes political opinion is foreclosed by our decision in Santos-Lemus. See id. at 746-47 (holding that opposition to a gang’s criminal activity is not a protected political opinion). Accordingly, his claims for asylum and withholding of removal fail.
Substantial evidence supports the agency’s determination that MoralesBarela is not entitled to CAT relief because he failed to demonstrate that it is more likely than not that he will be tortured upon return to Honduras. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).
Morales-Barela’s due process contention that the record is incomplete fails because he has not shown prejudice. See Colme-nar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We reject Morales-Barela’s con*708tention that the IJ demonstrated bias by mentioning appellate review. See id. We also reject his contention that the BIA did not consider attorney Pott’s declaration regarding the IJ’s conduct during the videotape because it is not supported by the record. See id.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Marvin Aparicio-Barrera, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review findings of fact for substantial evidence, Nagoulko v. INS, 333 F.3d 1012 (9th Cir.2003), and review claims of due process violations de novo, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s determination that Aparicio-Barrera is ineligible for asylum and withholding of removal because Aparicio-Barrera’s status as a victim of gang violence is not a protected ground. See Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir.2009). Accordingly, Aparicio-Barrera’s asylum and withholding of removal claims fail.
Aparicio-Barrera failed to brief this court on CAT relief and has therefore waived this issue. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.1996).
We reject Aparicio-Barrera’s due process claim because the IJ gave him at least three opportunities at the merits hearing to supplement the information in his asylum application and he declined to meaningfully do so. Cf. Jacinto v. INS, 208 F.3d 725, 727-28 (9th Cir.2000).
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 **
Francisco Morales-Barela, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“U”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review the IJ’s findings of fact for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003), and questions of law, including claims of due process violations, de novo, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We deny the petition for review.
Substantial evidence supports the agency’s determination that MoralesBarela failed to establish past persecution or a well-founded fear of future persecution on account of a protected ground. The agency correctly determined that Mara Salvatrucha is not a recognized social group and that Morales-Barela’s membership in a gang is not a protected ground. See Arteaga v. Mukasey, 511 F.3d 940, 943-45 (9th Cir.2007). Furthermore, Morales-Barela did not show he was targeted by police for his disagreement ■with anti-gang laws rather than for his gang activity. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir.2008). Lastly, Morales-Barela’s argument that his unwillingness to follow gang orders constitutes political opinion is foreclosed by our decision in Santos-Lemus. See id. at 746-47 (holding that opposition to a gang’s criminal activity is not a protected political opinion). Accordingly, his claims for asylum and withholding of removal fail.
Substantial evidence supports the agency’s determination that MoralesBarela is not entitled to CAT relief because he failed to demonstrate that it is more likely than not that he will be tortured upon return to Honduras. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003).
Morales-Barela’s due process contention that the record is incomplete fails because he has not shown prejudice. See Colme-nar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We reject Morales-Barela’s con*708tention that the IJ demonstrated bias by mentioning appellate review. See id. We also reject his contention that the BIA did not consider attorney Pott’s declaration regarding the IJ’s conduct during the videotape because it is not supported by the record. See id.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Palwinder Kaur, a native and citizen of India, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings for substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and we review de novo claims of due process violations, Iturribarria v. *719INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
On July 26, 2006, the court issued a memorandum disposition that concluded substantial evidence supported the agency’s adverse credibility finding, and, thus, that Kaur’s asylum and withholding of removal claims failed. See Kaur v. Gonzales, 192 Fed.Appx. 621 (9th Cir.2006). The court remanded Kaur’s CAT claim because the BIA did not address it. On remand, the BIA denied Kaur’s CAT claim and Kaur petitions for review of that decision.
Even if Kaur properly raised her CAT claim to the BIA, substantial evidence supports the BIA’s denial of the claim because it is based on the same testimony found to be not credible and Kaur points to no evidence to show a clear probability of torture if she is returned to India. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003).
We reject Kaur’s contention that the BIA violated her due process rights by not remanding her CAT claim to the immigration judge because Kaur did not file a motion for remand, or otherwise indicate the need for further fact-finding, but instead rested her argument solely on her testimony. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (to prevail on a due process claim petitioner must show error and prejudice); 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand.”).
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 **
*725Saak Avakyants, a native of Azerbaijan and citizen of Russia, petitions for review of an order of the Board of Immigration Appeals’ (“BIA”) denying his motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Avakyants’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Avakyants failed to establish that he acted with due diligence to warrant tolling of the ninety-day deadline for such motions, see Iturribar-ria, 321 F.3d at 899. In light of our disposition, we do not reach the issue of prejudice.
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 **
Paul Kozak, aka Zachary Kriston, appeals pro se from the district court’s summary judgment in favor of Tony Peroulis on Peroulis’s claims for embezzlement, breach of contract, breach of the implied covenant of good faith and fair dealing, and alter ego liability. We have jurisdiction under 28 U.S.C. § 1291. We review *729de novo the district court’s grant of summary judgment, Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001), and we affirm.
The grant of summary judgment did not deprive Kriston of his Seventh Amendment right to a jury trial. See Johnson v. Neilson (In re Slatkin), 525 F.3d 805, 811 (9th Cir.2008) (“As the Supreme Court held, over one hundred years ago, a summary judgment proceeding does not deprive the losing party of its Seventh Amendment right to a jury trial.”).
Contrary to Kriston’s contentions, the question of whether Peroulis was a “creditor” is not a genuine issue of material fact precluding summary judgment because status as a “creditor” is not an element of a cause of action for embezzlement, breach of contract, breach of the implied covenant of good faith and fair dealing, or alter ego and “reverse” piercing of the corporate veil. See Nev.Rev. Stat. § 205.300 (embezzlement under Nevada law); Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 555 (9th Cir.1991) (per curiam) (embezzlement under federal law); Richardson v. Jones, 1 Nev. 405, 405 (Nev. 1865) (breach of contract); Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 107 Nev. 226, 808 P.2d 919, 923-24 (1991) (breach of implied covenant of good faith and fair dealing); LFC Mktg. Group, Inc. v. Loomis, 116 Nev. 896, 8 P.3d 841, 845-46 (2000) (per curiam) (alter ego and “reverse” piercing of corporate veil); see also T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (“A ‘material’ fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit.”).
Kriston may not challenge the district court’s entry of default judgment against Kings Court Command Corporation or Kings Court Command LLC because Kriston is not an attorney and may not, therefore, represent these entities in federal court. See United States v. High Country Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir.1993) (per curiam) (“A corporation may appear in federal court only through licensed counsel.”),
Kriston has waived his argument that the promissory notes violate the usury laws of Colorado. See Abogados v. AT & T, Inc., 223 F.3d 932, 937 (9th Cir.2000) (considering argument waived on appeal that was not raised on summary judgment).
Peroulis’s motion to strike Kriston’s Supplemental Appendix is granted to the extent the Supplemental Appendix contains documents and information not filed with the district court or admitted into evidence by that court. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.1988) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.”); Fed. R.App. P. 10(a).
Kriston’s request for Judicial Notice is denied because it includes documents not filed with the district court or admitted into evidence by that court, see Kirshner, 842 F.2d at 1077, and those documents are not a proper subject of judicial notice, see Fed.R.Evid. 201(b).
We have considered and reject all other contentions raised on appeal.
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 **
Palwinder Kaur, a native and citizen of India, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual findings for substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and we review de novo claims of due process violations, Iturribarria v. *719INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
On July 26, 2006, the court issued a memorandum disposition that concluded substantial evidence supported the agency’s adverse credibility finding, and, thus, that Kaur’s asylum and withholding of removal claims failed. See Kaur v. Gonzales, 192 Fed.Appx. 621 (9th Cir.2006). The court remanded Kaur’s CAT claim because the BIA did not address it. On remand, the BIA denied Kaur’s CAT claim and Kaur petitions for review of that decision.
Even if Kaur properly raised her CAT claim to the BIA, substantial evidence supports the BIA’s denial of the claim because it is based on the same testimony found to be not credible and Kaur points to no evidence to show a clear probability of torture if she is returned to India. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.2003).
We reject Kaur’s contention that the BIA violated her due process rights by not remanding her CAT claim to the immigration judge because Kaur did not file a motion for remand, or otherwise indicate the need for further fact-finding, but instead rested her argument solely on her testimony. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (to prevail on a due process claim petitioner must show error and prejudice); 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand.”).
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 **
*725Saak Avakyants, a native of Azerbaijan and citizen of Russia, petitions for review of an order of the Board of Immigration Appeals’ (“BIA”) denying his motion to reopen proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The BIA did not abuse its discretion in denying Avakyants’ motion to reopen as untimely because the motion was filed more than two years after the BIA’s order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Avakyants failed to establish that he acted with due diligence to warrant tolling of the ninety-day deadline for such motions, see Iturribar-ria, 321 F.3d at 899. In light of our disposition, we do not reach the issue of prejudice.
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 **
Paul Kozak, aka Zachary Kriston, appeals pro se from the district court’s summary judgment in favor of Tony Peroulis on Peroulis’s claims for embezzlement, breach of contract, breach of the implied covenant of good faith and fair dealing, and alter ego liability. We have jurisdiction under 28 U.S.C. § 1291. We review *729de novo the district court’s grant of summary judgment, Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001), and we affirm.
The grant of summary judgment did not deprive Kriston of his Seventh Amendment right to a jury trial. See Johnson v. Neilson (In re Slatkin), 525 F.3d 805, 811 (9th Cir.2008) (“As the Supreme Court held, over one hundred years ago, a summary judgment proceeding does not deprive the losing party of its Seventh Amendment right to a jury trial.”).
Contrary to Kriston’s contentions, the question of whether Peroulis was a “creditor” is not a genuine issue of material fact precluding summary judgment because status as a “creditor” is not an element of a cause of action for embezzlement, breach of contract, breach of the implied covenant of good faith and fair dealing, or alter ego and “reverse” piercing of the corporate veil. See Nev.Rev. Stat. § 205.300 (embezzlement under Nevada law); Transamerica Comm. Fin. Corp. v. Littleton (In re Littleton), 942 F.2d 551, 555 (9th Cir.1991) (per curiam) (embezzlement under federal law); Richardson v. Jones, 1 Nev. 405, 405 (Nev. 1865) (breach of contract); Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 107 Nev. 226, 808 P.2d 919, 923-24 (1991) (breach of implied covenant of good faith and fair dealing); LFC Mktg. Group, Inc. v. Loomis, 116 Nev. 896, 8 P.3d 841, 845-46 (2000) (per curiam) (alter ego and “reverse” piercing of corporate veil); see also T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (“A ‘material’ fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit.”).
Kriston may not challenge the district court’s entry of default judgment against Kings Court Command Corporation or Kings Court Command LLC because Kriston is not an attorney and may not, therefore, represent these entities in federal court. See United States v. High Country Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir.1993) (per curiam) (“A corporation may appear in federal court only through licensed counsel.”),
Kriston has waived his argument that the promissory notes violate the usury laws of Colorado. See Abogados v. AT & T, Inc., 223 F.3d 932, 937 (9th Cir.2000) (considering argument waived on appeal that was not raised on summary judgment).
Peroulis’s motion to strike Kriston’s Supplemental Appendix is granted to the extent the Supplemental Appendix contains documents and information not filed with the district court or admitted into evidence by that court. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir.1988) (“Papers not filed with the district court or admitted into evidence by that court are not part of the clerk’s record and cannot be part of the record on appeal.”); Fed. R.App. P. 10(a).
Kriston’s request for Judicial Notice is denied because it includes documents not filed with the district court or admitted into evidence by that court, see Kirshner, 842 F.2d at 1077, and those documents are not a proper subject of judicial notice, see Fed.R.Evid. 201(b).
We have considered and reject all other contentions raised on appeal.
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 **
Hermes Enrique Vasquez-Aguirre, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. *737§ 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, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We deny in part and dismiss in part the petition for review.
We reject Vasquez-Aguirre’s claim that he is eligible for asylum based on his membership in a particular social group, namely, young El Salvadoran males who resist efforts by gangs to recruit them or extort money from them. See 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); Ramos-Lopez v. Holder, 563 F.3d 855, 860-62 (9th Cir.2009) (rejecting as a particular social group “young Honduran men who have been recruited by [a gang], but who refuse to join”).
Accordingly, because Vasquez-Aguirre failed to demonstrate that he was persecuted on account of a protected ground, we deny the petition as to his asylum claim. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir.2009).
Vasquez-Aguirre’s due process claim fails because he has no cognizable liberty interest in discretionary relief from removal. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.2004); see also Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir.1999) (deportable aliens have no substantive due process right to residence in the United States).
We lack jurisdiction to review both Vasquez-Aguirre’s challenge to the IJ’s corroboration finding and his claim for humanitarian asylum, withholding of removal, and CAT relief, because he failed to exhaust these arguments before the BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam); see also Zara v. Ashcroft, 383 F.3d 927, 930 (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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ORDER **
We lack jurisdiction over an appeal from a remand order entered due to a lack of subject matter jurisdiction. See 28 U.S.C. § 1447; Carlsbad Tech. Inc. v. HIF Bio, Inc., — U.S. -, 129 S.Ct. 1862, 1865-66, 173 L.Ed.2d 843 (2009). Costs on appeal are awarded to Appellee. See Fed. R.App. P. 39.
DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Hermes Enrique Vasquez-Aguirre, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. *737§ 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, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We deny in part and dismiss in part the petition for review.
We reject Vasquez-Aguirre’s claim that he is eligible for asylum based on his membership in a particular social group, namely, young El Salvadoran males who resist efforts by gangs to recruit them or extort money from them. See 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); Ramos-Lopez v. Holder, 563 F.3d 855, 860-62 (9th Cir.2009) (rejecting as a particular social group “young Honduran men who have been recruited by [a gang], but who refuse to join”).
Accordingly, because Vasquez-Aguirre failed to demonstrate that he was persecuted on account of a protected ground, we deny the petition as to his asylum claim. See Barrios v. Holder, 581 F.3d 849, 856 (9th Cir.2009).
Vasquez-Aguirre’s due process claim fails because he has no cognizable liberty interest in discretionary relief from removal. See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.2004); see also Briseno v. INS, 192 F.3d 1320, 1323 (9th Cir.1999) (deportable aliens have no substantive due process right to residence in the United States).
We lack jurisdiction to review both Vasquez-Aguirre’s challenge to the IJ’s corroboration finding and his claim for humanitarian asylum, withholding of removal, and CAT relief, because he failed to exhaust these arguments before the BIA. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc) (per curiam); see also Zara v. Ashcroft, 383 F.3d 927, 930 (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 **
Sandra Yolinda Gutierrez, a native and citizen of Honduras, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review 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, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). We review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We deny the petition for review.
Gutierrez failed to raise any substantive arguments in her opening brief with respect to the BIA’s dispositive determination that her asylum claim is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not supported by argument are deemed waived).
We reject Gutierrez’ claim that she is eligible for withholding of removal based on membership in a particular social group or on account of her anti-gang political opinion due to the problems she had with gang members in Tegucigalpa and San Pedro Sula. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir.2008) (rejecting social group claim based on opposition to gang violence); Barrios v. Holder, 581 F.3d 849, 855-56 (9th Cir. 2009) (refusal to join a gang does not amount to a political opinion). In addition, substantial evidence supports the agency’s determination that the assault on Gutierrez as she left Honduras was not on account of a protected ground. See Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (“Random, isolated criminal acts ... do not establish persecution”).
Accordingly, because Gutierrez failed to demonstrate that she was persecuted or fears persecution on account of a protected ground, we deny the petition as to the withholding of removal claim. See Barrios, 581 F.3d at 856.
Substantial evidence supports the BIA’s denial of CAT relief based on its finding that Gutierrez did not establish a likelihood of torture by, at the instigation of, or with the consent or acquiescence of the Honduran government. See Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir.2003) (acquiescence requires “both actual knowledge and willful blindness”) (internal quotations omitted).
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 **
*769Bernardino Gabriel-Perez, his wife, Venancia Perez de Gabriel, and adult son, Eduardo Gabriel-Perez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we review due process claims de novo, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen because the motion was untimely, see 8 C.F.R. § 1003.2(c); Alali-Amin v. Mukasey, 523 F.3d 1039, 1041-42 (9th Cir.2008), petitioners failed to establish changed circumstances in Mexico that would warrant reopening, see 8 C.F.R. § 1003.2(c)(3)(ii); Azanor v. Ashcroft, 364 F.3d 1013, 1021-22 (9th Cir.2004), and petitioners failed to establish prima facie eligibility for relief, see Ordonez, 345 F.3d at 785. It follows that the denial of petitioners’ motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process claim).
Petitioners also contend that the BIA erred by failing to consider Eduardo Gabriel-Perez’ request to submit a separate asylum application. This contention is ■without merit because petitioners did not overcome the presumption that the BIA fully reviewed the record. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006).
Finally, there is no merit to petitioners’ contention that the BIA erred by employing an incorrect legal standard.
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 **
*775Teresa Lara Mondragon, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s removal order. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Mondragon is inadmissible, and therefore ineligible for adjustment of status, where the record evidence indicates she made a false claim to United States citizenship to gain entry to the United States in 1997. See Pichardo v. INS, 216 F.3d 1198, 1201 (9th Cir.2000) (false claim to United States citizenship is a “non-waivable ground for inadmissibility” under 8 U.S.C. § 1182(a)(6)(C)(ii)).
We lack jurisdiction to review Mon-dragon’s challenge to her 1997 expedited removal order. See 8 U.S.C. § 1252(a)(2)(A); Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 818-19 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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MEMORANDUM **
Patricia Consolación Cruz Nicolas and Belem Alelhi Reymundo Nicolas, mother and daughter and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo ineffective assistance of counsel claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
We agree with the BIA’s determination that petitioners’ ineffective assistance of counsel claim fails because they did not establish prejudice from their former counsel’s performance. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, petitioner must demonstrate prejudice). Petitioners’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions, Darwin Mazariegos-Diaz, a native and citizen of Guatemala, petitions for review of both the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying his application for asylum and withholding of removal (No. 07-73575), and the BIA’s order denying his motion reconsider (No. 08-70330). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), we review for abuse of discretion the denial of motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part petition No. 07-73575, and we deny the petition No. 08-70330.
Substantial evidence supports the agency’s determination that Mazariegos-Diaz did not establish past persecution on account of a protected ground. See Elias-Zacarias, 502 U.S. at 481-82, 112 S.Ct. 812. Substantial evidence also supports the agency’s determination that Mazariegos-Diaz failed to establish a well-founded fear of future persecution on account of a membership in particular social group, namely young Guatemalan men vulnerable to gangs and gang violence. See Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir.2009) (rejecting as a particular social group “young males in Guatemala who are targeted for gang recruitment but refuse because they disagree with the gang’s criminal activities”); Santos-Lemus 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). We lack jurisdiction to review Mazariegos-Diaz’s contention that he has a well-founded fear of future persecution on account of an imputed political opinion because it is unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, because Mazariegos-Diaz failed to demonstrate that he was persecuted on account of a protected ground, we deny the petition as to his asylum and withholding of removal claims. See Barrios, 581 F.3d at 856.
Because Mazariegos-Diaz failed to establish past persecution on account of a protected ground, his humanitarian asylum claims also fails. See 8 C.F.R. § 1208.13(b)(l)(iii).
The agency did not violate Mazariegos-Diaz’s due process rights because the record reflects that he was given a “full and fair hearing” and a “reasonable opportunity to present evidence on his behalf.” See Colmenar, 210 F.3d at 971.
Finally, the BIA did not abuse its discretion in denying Mazariegos-Diaz’s motion to reconsider because the motion failed to identify any error of law or fact in the BIA’s August 9, 2007 order that would justify granting relief. See 8 C.F.R. § 1003.2(b)(1).
No. 07-73575: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 08-70330: 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 **
Jose Ricardo Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen and de novo claims of constitutional violations in immigration proceedings, Singh v. Gonzales, 491 F.3d 1090, 1095 (9th Cir.2007), and we deny in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying as untimely Perez’s motion to reopen because it was filed more than four years after the BIA’s final removal order, see 8 C.F.R. § 1003.2(c)(2), and Perez did not show that he acted with the due *799diligence required for equitable tolling, see Singh, 491 F.3d at 1096-97. The denial of Perez’s motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
We lack jurisdiction to review the BIA’s December 20, 2002, order denying Perez’s motion to remand because he failed to timely petition for review of that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Perez’s remaining contentions are unavailing.
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 **
Hasanal Kemal, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Hox-ha v. Ashcroft, 319 F.3d 1179, 1182 n. 4 (9th Cir.2003), and de novo questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We deny the petition for review.
The record does not compel the conclusion that changed circumstances excused the untimely filing of Kemal’s asylum application. See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam).
Substantial evidence supports the IJ’s denial of withholding of removal because Kemal failed to demonstrate it is more likely than not he will be persecuted either as a member of a particular social group comprised of Indonesians with United States citizen children, as a moderate Muslim, or as an Americanized Indonesian. See Hoxha, 319 F.3d at 1184-85.
Substantial evidence also supports the IJ’s denial of CAT relief because Kemal failed to establish it is more likely than not he would be tortured if returned to Indonesia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004). Further, we reject Kemal’s contention that the IJ used the wrong standard in denying CAT relief because it is not supported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Patricia Consolación Cruz Nicolas and Belem Alelhi Reymundo Nicolas, mother and daughter and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and we review de novo ineffective assistance of counsel claims. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
We agree with the BIA’s determination that petitioners’ ineffective assistance of counsel claim fails because they did not establish prejudice from their former counsel’s performance. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim, petitioner must demonstrate prejudice). Petitioners’ remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated petitions, Darwin Mazariegos-Diaz, a native and citizen of Guatemala, petitions for review of both the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying his application for asylum and withholding of removal (No. 07-73575), and the BIA’s order denying his motion reconsider (No. 08-70330). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), we review for abuse of discretion the denial of motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part petition No. 07-73575, and we deny the petition No. 08-70330.
Substantial evidence supports the agency’s determination that Mazariegos-Diaz did not establish past persecution on account of a protected ground. See Elias-Zacarias, 502 U.S. at 481-82, 112 S.Ct. 812. Substantial evidence also supports the agency’s determination that Mazariegos-Diaz failed to establish a well-founded fear of future persecution on account of a membership in particular social group, namely young Guatemalan men vulnerable to gangs and gang violence. See Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir.2009) (rejecting as a particular social group “young males in Guatemala who are targeted for gang recruitment but refuse because they disagree with the gang’s criminal activities”); Santos-Lemus 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). We lack jurisdiction to review Mazariegos-Diaz’s contention that he has a well-founded fear of future persecution on account of an imputed political opinion because it is unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, because Mazariegos-Diaz failed to demonstrate that he was persecuted on account of a protected ground, we deny the petition as to his asylum and withholding of removal claims. See Barrios, 581 F.3d at 856.
Because Mazariegos-Diaz failed to establish past persecution on account of a protected ground, his humanitarian asylum claims also fails. See 8 C.F.R. § 1208.13(b)(l)(iii).
The agency did not violate Mazariegos-Diaz’s due process rights because the record reflects that he was given a “full and fair hearing” and a “reasonable opportunity to present evidence on his behalf.” See Colmenar, 210 F.3d at 971.
Finally, the BIA did not abuse its discretion in denying Mazariegos-Diaz’s motion to reconsider because the motion failed to identify any error of law or fact in the BIA’s August 9, 2007 order that would justify granting relief. See 8 C.F.R. § 1003.2(b)(1).
No. 07-73575: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 08-70330: 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 **
James Hermanus Rauw, a native and citizen of Indonesia, petitions for review of *797the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. Reviewing for substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), we deny the petition for review.
Substantial evidence supports the agency’s conclusion that Rauw failed to establish the extortion and occupation of his house in Indonesia were motivated, even in part, on account of a protected ground, see Ochoa v. Gonzales, 406 F.3d 1166, 1171-72 (9th Cir.2005), and he failed to demonstrate the other incidents rose to the level of persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir.2003). Substantial evidence also supports the agency’s finding that Rauw does not have a well-founded fear of future persecution because, even if Rauw was a member of a disfavored group, he failed to demonstrate the requisite individualized risk of persecution. Cf. Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir.2004). Lastly, substantial evidence supports the agency’s finding that Rauw’s trips outside of the country and willingness to return to Indonesia undermined his well-founded fear of persecution. See Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.2000) (presumption of a nationwide threat of persecution rebutted when petitioner made three return trips).
Because Rauw did not establish eligibility for asylum, it necessarily follows that he did not satisfy the more stringent standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Finally, substantial evidence also supports the agency’s denial of CAT relief because petitioner failed to establish that it is more likely than not he will be tortured in Indonesia. See Wakkary, 558 F.3d at 1067-68.
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 **
Hasanal Kemal, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Hox-ha v. Ashcroft, 319 F.3d 1179, 1182 n. 4 (9th Cir.2003), and de novo questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We deny the petition for review.
The record does not compel the conclusion that changed circumstances excused the untimely filing of Kemal’s asylum application. See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam).
Substantial evidence supports the IJ’s denial of withholding of removal because Kemal failed to demonstrate it is more likely than not he will be persecuted either as a member of a particular social group comprised of Indonesians with United States citizen children, as a moderate Muslim, or as an Americanized Indonesian. See Hoxha, 319 F.3d at 1184-85.
Substantial evidence also supports the IJ’s denial of CAT relief because Kemal failed to establish it is more likely than not he would be tortured if returned to Indonesia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004). Further, we reject Kemal’s contention that the IJ used the wrong standard in denying CAT relief because it is not supported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to establish a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Juan Garcia-Rodriguez and Guadalupe Medina-Merlos, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order sustaining the government’s appeal from an immigration judge’s decision granting petitioners cancellation of removal, and denying petitioners’ motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional claims, Vasquez-Zava-la v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to remand, de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.2007). We dismiss in part and deny in part the petition for review.
We lack jurisdiction over petitioners’ contention that the BIA failed to consider the cumulative impact of their hardship evidence because it is not supported by the record and does not amount to a colorable constitutional claim. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.2009).
The BIA acted within its broad discretion in determining that the evidence newly presented on appeal was insufficient to warrant a remand. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law”). Petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).
Petitioners’ remaining 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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MEMORANDUM **
Juan Garcia-Rodriguez and Guadalupe Medina-Merlos, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order sustaining the government’s appeal from an immigration judge’s decision granting petitioners cancellation of removal, and denying petitioners’ motion to remand. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo constitutional claims, Vasquez-Zava-la v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to remand, de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.2007). We dismiss in part and deny in part the petition for review.
We lack jurisdiction over petitioners’ contention that the BIA failed to consider the cumulative impact of their hardship evidence because it is not supported by the record and does not amount to a colorable constitutional claim. See Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir.2009).
The BIA acted within its broad discretion in determining that the evidence newly presented on appeal was insufficient to warrant a remand. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law”). Petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).
Petitioners’ remaining 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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MEMORANDUM **
Eugene D. Carper, a Washington state prisoner, appeals pro se from the district court’s judgment dismissing as untimely his 42 U.S.C. § 1983 action alleging deliberate indifference to medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Canatella v. Van De Kemp, 486 F.3d 1128, 1132 (9th Cir.2007). We affirm in part, vacate in part, and remand.
The district court properly dismissed the action against Whatcom County Jail because it was filed well after the applicable three-year statute of limitations had expired. See Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir.1991) (explaining that the statute of limitations for a § 1983 action filed in Washington “is the three-year limitation of Wash. Rev. Code § 4.16.080(2)”).
We exercise our discretion to consider an argument raised for the first time on appeal. See AlohaCare v. Haw., Dep’t of Human Servs., 572 F.3d 740, 744-45 (9th Cir.2009) (“Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so.”) (citation and internal quotation marks omitted). The record shows that the action against the remaining defendants was not time-barred because Carper was entitled to tolling during the pendency of his administrative appeals. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir.2005) (agreeing “with the uniform holdings of the circuits that have considered the question that the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”); see also Fed.R.Civ.P. 15(c) (allowing an amendment to a pleading to relate back to the date of the original pleading under the specified circumstances). Accordingly, we vacate the dismissal of the claims against these defendants and remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Annette Bender appeals from her guilty-plea conviction and 84-month sentence for conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(l)(B)(iii).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Bender’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, appellant’s pro se motion for appointment of new counsel is DENIED, 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 **
California state prisoner Mario Rene Rubio appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Rubio contends that his prison disciplinary proceedings violated his due process rights because there was insufficient evidence to support the hearing officer’s finding that Rubio engaged in mutual combat. This contention fails because “some evidence” in the record supports the finding. See Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
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 CERTIFYING STATE LAW QUESTION
PER CURIAM.
This case turns on whether Mr. Douglas Reinhart’s (Debtor) Keogh Plan should have been exempted from his estate when he filed for Chapter 7 bankruptcy. To be exempt, the Utah Code requires the plan be “described in” section 401(a) of the Internal Revenue Code (IRC). Utah Code Ann. § 78-23-5 (2000).1 The Bankruptcy Court found the Keogh Plan was operationally in default on the Petition Date and would not be “qualified” under § 401(a) but was nonetheless “described” in the section and therefore exempt.
The Bankruptcy Court also excluded from the exemption the $20,400 Debtor had paid into his Keogh during the year preceding filing for bankruptcy but the court did not exclude the earnings stemming from that amount. The Trustee, Mr. David L. Gladwell, appealed to the District Court arguing an unqualified plan cannot be described in section 401(a) and the court erred by failing to include the earnings of the contributed amount. The District Court affirmed the Bankruptcy Court’s holdings. This appeal followed.
Since the disposition of this appeal centers on an important and unsettled question of the interpretation of Utah’s bankruptcy statutes, we certify on our own motion, pursuant to Tenth Circuit Rule 27.1 and Utah Rule of Appellate Procedure 41, this issue to the Utah Supreme Court:
1. Can a Keogh plan be “described in” section 401(a) of the IRC despite failing to fulfill that section’s requirements for qualification, thereby entitling debtor to exempt the plan from his bankruptcy estate property?
*921Because the resolution of the second issue, of whether the appropriate amount was excluded from the exemption, depends on the resolution of the first issue, we will stay its consideration until the Utah Supreme Court has decided the first issue.
1. Background
On January 28, 2000, Debtor filed a voluntary Chapter 7 bankruptcy petition. In his amended schedule he claimed a $333,835.65 exemption for his Keogh plan under Utah Code Ann. § 78-23-5(l)(a)(x) (2000). This statute permits the funds in a Keogh plan that is “described in” § 401(a) of the Internal Revenue Code to be exempt from the claims of creditors and trustees in bankruptcy.
David Gladwell is the Trustee and he objected to the exemption on two bases: (1) because of operational defaults, the Keogh plan was not qualified under § 401(a) and therefore not described in the section and (2) even if the plan was qualified, the amount contributed in the year prior to the Petition Date would not be exempt from the exemption pursuant to Utah Code Ann. § 78 — 23—5(1)(b)(ii) (2000).2
From 1992 until the Petition Date, Debt- or was an anesthesiologist. He worked as a sole practitioner until 1996 when he incorporated his practice. In 1992, Debtor established his Keogh plan by adopting a prototype plan offered through Charles Schwab & Co. Debtor was at all relevant times the sole employee under the plan and no one else participated in or contributed to the plan.
One of the non-waivable requirements of the plan was that all eligible employees be made participants. Although Debtor’s wife was an eligible employee from 1993 until the Petition Date, she was never included as a participant under the plan. Debtor also failed to have his incorporated practice adopt the Keogh plan so he remained as if he was a self-employed individual despite the fact he was not. Although Debtor did make yearly contributions to the plan, they were not the 10% of each participant’s annual compensation as the Keogh plan’s documents required. Debtor also failed to have the contributions made through Schwab as the custodian of the Keogh and instead directly made the investments himself. Debtor additionally made an automobile loan to Colleen Parker through the Keogh plan. In 2000, Debtor caused contributions to be made that were $1,455.75 in excess of the maximum contributions limits pursuant to § 415(c) of the Internal Revenue Code.
At trial, Trustee’s expert, W. Waldan Lloyd, testified each of these defects would have disqualified the Keogh plan for tax purposes under § 401(a). Mr. Lloyd also testified each of those defects was curable through certain IRS procedures. The Employee Plans Compliance Resolution System (EPCRS) enables employers to self-correct operational errors in their Keogh plans in order to avoid sanctions and tax consequences the IRS would otherwise be authorized to impose. All of the defects that made the Keogh plan operationally in default were curable through EPCRS. The IRS had neither previously qualified nor disqualified the plan.
The Bankruptcy Court decided the Keogh plan was “operationally in default” on the Petition Date. Although the plan was “arguably not tax qualified” it was “nonetheless, described in Section 401(a)” and therefore exempt from the estate. ApltApp. at 51. The Bankruptcy Court relied heavily on In re Kaplan, 162 B.R. 684 (Bankr.E.D.Pa.1993) (holding the term “provided for under 401(a)” was broader than “qualified under” and thus a non-*922qualified plan was still conditionally exempted), and decided a plan could be described in § 401(a) without being qualified. Id. The court found $20,400 had been contributed to the Keogh in the year prior to filing for bankruptcy and excluded that portion of the plan from the exemption. Id. at 28, 31. The court did not include any earnings from that amount. Id.
The District Court affirmed the Bankruptcy Court. Trustee appealed.
II. Discussion
Whether a “Described” Plan Must be a “Qualified” Plan
Utah’s legislature has opted out of the federal exemptions provided under the bankruptcy code. Therefore, the only exemptions available are under Utah law. See 11 U.S.C. § 522(b); former Utah Code Ann. § 78-23-15 (2000); current Utah Code Ann. § 78B-5-513 (2008). On the Petition Date, Utah Code Ann. § 78-23-5 read:
(l)(a) an individual is entitled to exemption of the following property: ...
(x) except as provided in Subsection (l)(b), any money or other assets held for or payable to the individual as a participant or beneficiary from or an interest of the individual as a participant or beneficiary in a retirement plan or arrangement that is described in Section 401(a), 401(h), 401(k), 403(a), 403(b), 408, 408A, 409, 414(d), or 414(e) of the United States Internal Revenue Code of 1986, as amended....
(emphasis added)
Section 401 is entitled “Qualified pension, profit-sharing, and stock bonus plans” and subsection (a) lists the “requirements for qualification.”
Trustee argues the plain language of Section 78 — 23—5(l)(b)(ii) requires a Keogh plan be qualified under Section 401(a) by meeting all of its requirements in order to be described in the Section and thus be exempt from the bankruptcy estate. Because the plain language of a statute is the first source a court will examine when interpreting a statute, the plain language should control. In re Kunz, 99 P.3d 793, 794 (Utah 2004). Since the Keogh Plan in question was operationally in default on the Petition Date and did not qualify under Section 401(a), it therefore would not be described in the section.
Additionally, Trustee asserts if a plan were permitted to not meet the section’s requirements and yet still be described in that section, such an interpretation would render any reference to those requirements meaningless. Since courts are not supposed to interpret a statute in a manner that would nullify any portion of its language, such an interpretation would be incorrect. See Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996).
Furthermore, Trustee argues the analysis of In re Kaplan, 162 B.R. 684, is inapplicable because that case dealt with a different state’s statute and even so the Bankruptcy Court misapplied the case. Kaplan’s holding turned on the fact the plan in question had previously been certified and its continued exemption depended on the IRS refraining from de-certifying the plan. Id. at 697-98 (“If the IRS intervenes at a later date and disqualifies the Plan, then and only then would it appear to us appropriate to preclude the Debtor from continuing to assert that its proceeds are exempt from claims of the Debtor’s creditors.”).
Debtor argues exemption statutes “are liberally construed in favor of the debtor” and thus the Keogh plan in question should be exempt. Russell M. Miller Co. v. Givan, 7 Utah 2d 380, 325 P.2d 908, 909-10 (1958). The legislative history of the statute is minimal and fails to provide guidance as to the legislative intent. Addi*923tionally, since the plan could have been remedied using the EPCRS program, any deficiencies were technical in nature and should not prevent the court from applying the exemption. Akin to the statute of In re Kaplan, this statute permits an unqualified plan to still be described in the section, and the court’s policy of interpreting exemption statutes in favor of the debtor support the bankruptcy and district court’s interpretation of the exemption statute. 162 B.R. at 697 (describing the exemption statute’s language as “very broad, and that it appears to have been drafted to include even plans which are not technically ‘tax qualified’ within its scope”).
In these circumstances, certification is appropriate. The plain language of the statute is ambiguous, the legislative history offers little guidance and the Utah courts have not previously squarely dealt with this issue. If the Utah Code was written to exempt from bankruptcy Keogh plans that fail to meet the qualifications of section 401(a) but are nonetheless described in the section then the bankruptcy and district courts were correct. If the Utah Code was written to integrate the Internal Revenue Code and have only those plans that met the requirements laid out in section 401(a) be exempt from bankruptcy then the courts were incorrect and should be reversed.
III. Conclusion
The Utah courts do not appear to have answered the question before us. Since this is a controlling question it is appropriate it be certified to the Utah Supreme Court. In the interests of comity and federalism, the Utah Supreme Court should be permitted to answer this question in the first instance if it should choose to do so under Utah RApp. P. 41.
The Clerk of this court shall transmit a copy of this certification order to counsel for all parties. The Clerk will also forward, under the Tenth Circuit’s official seal, a copy of this certification order and the briefs filed in this court to the Utah Supreme Court.
We will appreciate the consideration of this request. This appeal is ordered STAYED pending consideration of the certified question.
. This statute is now Utah Code Ann. § 7813-5-505(l)(a)(xiv) (2008).
. This statute is now Utah Code Ann. § 78B-5 — 505(l)(b)(ii) (2008).
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ORDER
This matter is before the court on appel-lee’s Petition For Panel Rehearing. We have construed the request as a motion to reconsider, as judgment has not entered in *924this appeal. See Fed. R.App. P. 40(a)(1). As construed, the motion seeks reconsideration of the court’s December 23, 2009 certification order to the Utah Supreme Court. The request is granted in part. An amended certification order shall issue. The request is granted to the extent of those amendments, but is otherwise denied. The Clerk is directed to forward the amended order to the Utah Supreme Court forthwith.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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OPINION
PER CURIAM.
Ralph Baker, a prisoner, appeals from the order of the United States District Court for the District of New Jersey dismissing his civil rights complaint.
In July 2002, Baker was arrested and charged with committing four armed robberies and related offenses in Union, Mid-dlesex, and Somerset Counties. He was acquitted of armed robbery after a jury trial in Union County in March 2004 and was found guilty of the lesser included offense of theft and related gun charges; *148he was sentenced to seven and one-half years in prison. The New Jersey Superior Court Appellate Division (“Superior Court”) affirmed the convictions in February 2007.1
In Middlesex County, Baker was tried by a jury and convicted in 2005 of two counts of armed robbery and related offenses and was sentenced to life imprisonment on one count of armed robbery and to lesser terms on the remaining charges. In October 2006, the Superior Court denied his appeal without prejudice to his filing a motion for leave to file an appeal nunc pro tunc.2
In January 2008, Baker filed a civil rights complaint pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, against the police officers, police departments, county prosecutors, the public defender, and the Attorney General of New Jersey for claims arising out of the indictment in Somerset County and his convictions in Union and Middlesex Counties for theft and armed robbery.3 According to Baker, he filed separate motions for new trials in Union County and Middlesex County in December 2007, alleging that DNA tests conducted in 2006 by the New Jersey State Police at the request of Baker’s attorney in the Somerset County case linked a black ski cap used in the robberies to another suspect, Malik Johnson.4 In response, the prosecutor defendants filed allegedly false affidavits attesting that, statistically, Baker could not be ruled out as a suspect. In August and September 2007, the trial courts in both Middlesex County and Union County denied his motions for new trials. As we have already noted, Baker’s appeal of the denial of his new trial motions was denied. The New Jersey Supreme Court denied certification in October 2008.
In his § 1983 complaint, Baker claimed he was subjected to false arrest and false imprisonment and that the defendants engaged in malicious prosecution and conspiracy to maliciously prosecute him. He sought an order from the District Court enjoining Union, Middlesex, and Somerset Counties and the individual defendants from presenting allegedly false DNA evi*149dence and using constitutionally infirm photographic lineup identifications in the Superior Court and New Jersey Supreme Court and in the trial court in Somerset County where the charges were still pending. He demanded that the District Court order a federal investigation into the matter.5 He did not request damages.
Detective Edward Chabek filed a motion for summary judgment, and the remaining defendants (except Sergeant Joseph Shannon) filed motions to dismiss, claiming, among other things, that the complaint was barred by Heck v. Humphrey, the Rooker-Feldman doctrine and the Younger abstention doctrine.6 The District Court denied Baker’s motion to amend his complaint, granted the defendants’ disposi-tive motions, and dismissed the complaint in its entirety as to all defendants.7 Baker filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Baker has been granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
The District Court properly dismissed Baker’s claims for injunctive relief. We agree with the District Court that, because the complaint implies the invalidity of his convictions in Middlesex and Union Counties, his sole remedy for contesting his convictions and/or sentences was through a petition for a writ of habeas corpus. See Nelson v. Campbell, 541 U.S. 637, 643, 646, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); see also Heck, 512 U.S. at 485-86, 114 S.Ct. 2364. The Somerset County armed robbery charge was pending trial at the time Baker filed his complaint. The trial court’s dismissal of the Somerset County indictment in April 2008 renders moot Baker’s request for an injunction barring the Somerset County defendants from using certain evidence at his criminal trial. To the extent that he also requested a broad injunction barring the use of the evidence at any future trial, his claim is too speculative to sustain.
The District Court did not err in dismissing Baker’s motion to amend the complaint. Amendment might have been required under Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002), absent any equitable considerations or the futility of the amendment. Here, granting leave to amend would have been futile because the proposed amended complaint (adding a claims for damages) would fail to state a claim upon which relief could be granted. With the exception of the Somerset County defendants, Baker’s damages claims for malicious prosecution and conspiracy against the defendants are barred by the favorable termination rule announced in Heck because the unlawfulness of the defendants’ alleged actions imply the invalidity of the Union and Middlesex County convictions and Baker cannot show that these convictions have been reversed or otherwise invalidated. Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364. *150Baker’s acquittal by a jury on the armed robbery charge in Union County did not constitute a “favorable termination” because he was convicted of the lesser-included offense of theft in the same criminal proceeding for the same criminal act. See e.g., Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir.2009) (concluding that the criminal judgment as a whole must indicate the plaintiffs innocence of the alleged misconduct charged).
As for the Somerset County defendants, the trial court’s dismissal of the Somerset County indictment at the prosecutor’s request satisfies Heck’s favorable termination rule. See Kossler, 564 F.3d at 187 (listing the ways in which a plaintiff may demonstrate favorable termination, including “the formal abandonment of the proceedings by the public prosecutor”). The Somerset County prosecutors, Wayne Forrest and James Lankford, however, are absolutely immune from suit for their actions in presenting evidence in response to Baker’s new trial motion. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that prosecutor was absolutely immune from a suit for damages because his alleged actions were within the scope of the function of “initiating a prosecution and presenting the State’s case”). As for Somerset County defendants Sergeant Randy Stratton and defense counsel, Jack Venturi, the amended § 1983 malicious prosecution and conspiracy claims require that Baker demonstrate, among other things, that Somerset County initiated criminal proceedings against him without probable cause. See Estate of Smith v. Marasco, 318 F.3d 497, 521-22 (3d Cir.2003). Baker’s arrest was based in part on the victim’s independent photographic identification of him, which is sufficient to establish probable cause to initiate criminal proceedings against him. See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir.2000) (“probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person arrested”) (citation omitted). Notably, the DNA testing results at issue in this case were conducted in 2005 and the results reported in 2006, well after Baker was arrested and indicted. Thus, we conclude that amendment of Baker’s § 1983 malicious prosecution claims against the Somerset County defendants would be futile.
Although the rule in Heck does not apply to Baker’s false arrest/imprisonment claims, see Wallace v. Kato, 549 U.S. 384, 393-394, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), his claims are barred by the applicable statute of limitations. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir.1998). We have held that New Jersey’s two-year limitations period on personal injury actions, N.J.S.A. 2A:14-2, applies to civil rights claims under § 1983. Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989). Because Fleck’s deferred accrual rule does not apply, Baker’s Fourth Amendment claim accrued when he appeared before a magistrate and was bound over for trial or arraigned on charges. See Wallace, 549 U.S. at 389-392, 127 S.Ct. 1091. His imprisonment does not toll the running of the statute of limitations. See Hughes v. Smith, 264 F.Supp. 767, 769 (D.N.J.1967), aff'd, 389 F.2d 42 (3d Cir.1968). Baker alleges that he was arrested on July 16, 2002. The date that he was arraigned or otherwise bound over for trial is not in the record. It is certain, however, that he was arraigned before his trial in Union County began in March 2004. Assuming in Baker’s favor that he was arraigned on the first day of trial, under New Jersey’s two year statute of limitations, he had until *151March 2006, to file a timely complaint. His complaint was filed in January 2008, well after the limitations period had expired.
Our independent review reveals that there is no arguable basis to challenge the District Court’s dismissal order on appeal. Accordingly, Baker’s appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). His motion for transcripts is denied.
. Baker was also found guilty and convicted of another weapons offense under a separate indictment, for which he received a seventeen year sentence. The Superior Court reversed and remanded the conviction. It appears that the indictment was dismissed sometime thereafter.
. It appears that Baker has not successfully filed a direct appeal of his conviction and life sentence. The last Superior Court order entered with respect to the Middlesex County case is the order entered in March 2008, denying his appeal nunc pro tunc (of his conviction and of the denial of his new trial motions) without prejudice. The order advised Baker that he could file an appeal and a motion for leave to file an appeal nunc pro tunc in which he should explain the causes for the delay in filing a direct appeal. There appears to be no appeal currently pending in the Superior Court.
. Baker attempted to amend his complaint twice. He did not serve the first amended complaint on the defendants. Baker requested that the District Court return the first amended complaint because he filed it by mistake. See D. Ct. Dkt. No. 13. As for the second amended complaint, which added a claim for damages, the District Court denied Baker's request to amend the complaint as futile because the amendment would not change the result.
. In May 2006, Union County voluntarily dismissed an indictment charging Baker with a second armed robbery and related offenses because the frail elderly victim could not travel from his home in Florida. (See brief in support of summary judgment, "Declaration of D. Schwartz,” Exh. "J”). Baker claims that the Somerset County indictment, charging Baker with armed robbery and related offenses, was dismissed voluntarily on April 3, 2008, because of the DNA testing results.
. The District Court did not err in denying Baker's request for relief as it lacks authority to order a such an investigation.
. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
.By dismissing the complaint "in its entirety,” the District Court dismissed all claims against Middlesex County Defendant Sergeant Joseph Shannon. The parties had stipulated to the dismissal of all claims against the public defender, Yvonne Smith Segars.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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MEMORANDUM **
Eugene D. Carper, a Washington state prisoner, appeals pro se from the district court’s judgment dismissing as untimely his 42 U.S.C. § 1983 action alleging deliberate indifference to medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Canatella v. Van De Kemp, 486 F.3d 1128, 1132 (9th Cir.2007). We affirm in part, vacate in part, and remand.
The district court properly dismissed the action against Whatcom County Jail because it was filed well after the applicable three-year statute of limitations had expired. See Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir.1991) (explaining that the statute of limitations for a § 1983 action filed in Washington “is the three-year limitation of Wash. Rev. Code § 4.16.080(2)”).
We exercise our discretion to consider an argument raised for the first time on appeal. See AlohaCare v. Haw., Dep’t of Human Servs., 572 F.3d 740, 744-45 (9th Cir.2009) (“Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so.”) (citation and internal quotation marks omitted). The record shows that the action against the remaining defendants was not time-barred because Carper was entitled to tolling during the pendency of his administrative appeals. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir.2005) (agreeing “with the uniform holdings of the circuits that have considered the question that the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process”); see also Fed.R.Civ.P. 15(c) (allowing an amendment to a pleading to relate back to the date of the original pleading under the specified circumstances). Accordingly, we vacate the dismissal of the claims against these defendants and remand for further proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Annette Bender appeals from her guilty-plea conviction and 84-month sentence for conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(l)(B)(iii).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Bender’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, appellant’s pro se motion for appointment of new counsel is DENIED, 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 **
California state prisoner Mario Rene Rubio appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Rubio contends that his prison disciplinary proceedings violated his due process rights because there was insufficient evidence to support the hearing officer’s finding that Rubio engaged in mutual combat. This contention fails because “some evidence” in the record supports the finding. See Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
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 CERTIFYING STATE LAW QUESTION
PER CURIAM.
This case turns on whether Mr. Douglas Reinhart’s (Debtor) Keogh Plan should have been exempted from his estate when he filed for Chapter 7 bankruptcy. To be exempt, the Utah Code requires the plan be “described in” section 401(a) of the Internal Revenue Code (IRC). Utah Code Ann. § 78-23-5 (2000).1 The Bankruptcy Court found the Keogh Plan was operationally in default on the Petition Date and would not be “qualified” under § 401(a) but was nonetheless “described” in the section and therefore exempt.
The Bankruptcy Court also excluded from the exemption the $20,400 Debtor had paid into his Keogh during the year preceding filing for bankruptcy but the court did not exclude the earnings stemming from that amount. The Trustee, Mr. David L. Gladwell, appealed to the District Court arguing an unqualified plan cannot be described in section 401(a) and the court erred by failing to include the earnings of the contributed amount. The District Court affirmed the Bankruptcy Court’s holdings. This appeal followed.
Since the disposition of this appeal centers on an important and unsettled question of the interpretation of Utah’s bankruptcy statutes, we certify on our own motion, pursuant to Tenth Circuit Rule 27.1 and Utah Rule of Appellate Procedure 41, this issue to the Utah Supreme Court:
1. Can a Keogh plan be “described in” section 401(a) of the IRC despite failing to fulfill that section’s requirements for qualification, thereby entitling debtor to exempt the plan from his bankruptcy estate property?
*921Because the resolution of the second issue, of whether the appropriate amount was excluded from the exemption, depends on the resolution of the first issue, we will stay its consideration until the Utah Supreme Court has decided the first issue.
1. Background
On January 28, 2000, Debtor filed a voluntary Chapter 7 bankruptcy petition. In his amended schedule he claimed a $333,835.65 exemption for his Keogh plan under Utah Code Ann. § 78-23-5(l)(a)(x) (2000). This statute permits the funds in a Keogh plan that is “described in” § 401(a) of the Internal Revenue Code to be exempt from the claims of creditors and trustees in bankruptcy.
David Gladwell is the Trustee and he objected to the exemption on two bases: (1) because of operational defaults, the Keogh plan was not qualified under § 401(a) and therefore not described in the section and (2) even if the plan was qualified, the amount contributed in the year prior to the Petition Date would not be exempt from the exemption pursuant to Utah Code Ann. § 78 — 23—5(1)(b)(ii) (2000).2
From 1992 until the Petition Date, Debt- or was an anesthesiologist. He worked as a sole practitioner until 1996 when he incorporated his practice. In 1992, Debtor established his Keogh plan by adopting a prototype plan offered through Charles Schwab & Co. Debtor was at all relevant times the sole employee under the plan and no one else participated in or contributed to the plan.
One of the non-waivable requirements of the plan was that all eligible employees be made participants. Although Debtor’s wife was an eligible employee from 1993 until the Petition Date, she was never included as a participant under the plan. Debtor also failed to have his incorporated practice adopt the Keogh plan so he remained as if he was a self-employed individual despite the fact he was not. Although Debtor did make yearly contributions to the plan, they were not the 10% of each participant’s annual compensation as the Keogh plan’s documents required. Debtor also failed to have the contributions made through Schwab as the custodian of the Keogh and instead directly made the investments himself. Debtor additionally made an automobile loan to Colleen Parker through the Keogh plan. In 2000, Debtor caused contributions to be made that were $1,455.75 in excess of the maximum contributions limits pursuant to § 415(c) of the Internal Revenue Code.
At trial, Trustee’s expert, W. Waldan Lloyd, testified each of these defects would have disqualified the Keogh plan for tax purposes under § 401(a). Mr. Lloyd also testified each of those defects was curable through certain IRS procedures. The Employee Plans Compliance Resolution System (EPCRS) enables employers to self-correct operational errors in their Keogh plans in order to avoid sanctions and tax consequences the IRS would otherwise be authorized to impose. All of the defects that made the Keogh plan operationally in default were curable through EPCRS. The IRS had neither previously qualified nor disqualified the plan.
The Bankruptcy Court decided the Keogh plan was “operationally in default” on the Petition Date. Although the plan was “arguably not tax qualified” it was “nonetheless, described in Section 401(a)” and therefore exempt from the estate. ApltApp. at 51. The Bankruptcy Court relied heavily on In re Kaplan, 162 B.R. 684 (Bankr.E.D.Pa.1993) (holding the term “provided for under 401(a)” was broader than “qualified under” and thus a non-*922qualified plan was still conditionally exempted), and decided a plan could be described in § 401(a) without being qualified. Id. The court found $20,400 had been contributed to the Keogh in the year prior to filing for bankruptcy and excluded that portion of the plan from the exemption. Id. at 28, 31. The court did not include any earnings from that amount. Id.
The District Court affirmed the Bankruptcy Court. Trustee appealed.
II. Discussion
Whether a “Described” Plan Must be a “Qualified” Plan
Utah’s legislature has opted out of the federal exemptions provided under the bankruptcy code. Therefore, the only exemptions available are under Utah law. See 11 U.S.C. § 522(b); former Utah Code Ann. § 78-23-15 (2000); current Utah Code Ann. § 78B-5-513 (2008). On the Petition Date, Utah Code Ann. § 78-23-5 read:
(l)(a) an individual is entitled to exemption of the following property: ...
(x) except as provided in Subsection (l)(b), any money or other assets held for or payable to the individual as a participant or beneficiary from or an interest of the individual as a participant or beneficiary in a retirement plan or arrangement that is described in Section 401(a), 401(h), 401(k), 403(a), 403(b), 408, 408A, 409, 414(d), or 414(e) of the United States Internal Revenue Code of 1986, as amended....
(emphasis added)
Section 401 is entitled “Qualified pension, profit-sharing, and stock bonus plans” and subsection (a) lists the “requirements for qualification.”
Trustee argues the plain language of Section 78 — 23—5(l)(b)(ii) requires a Keogh plan be qualified under Section 401(a) by meeting all of its requirements in order to be described in the Section and thus be exempt from the bankruptcy estate. Because the plain language of a statute is the first source a court will examine when interpreting a statute, the plain language should control. In re Kunz, 99 P.3d 793, 794 (Utah 2004). Since the Keogh Plan in question was operationally in default on the Petition Date and did not qualify under Section 401(a), it therefore would not be described in the section.
Additionally, Trustee asserts if a plan were permitted to not meet the section’s requirements and yet still be described in that section, such an interpretation would render any reference to those requirements meaningless. Since courts are not supposed to interpret a statute in a manner that would nullify any portion of its language, such an interpretation would be incorrect. See Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996).
Furthermore, Trustee argues the analysis of In re Kaplan, 162 B.R. 684, is inapplicable because that case dealt with a different state’s statute and even so the Bankruptcy Court misapplied the case. Kaplan’s holding turned on the fact the plan in question had previously been certified and its continued exemption depended on the IRS refraining from de-certifying the plan. Id. at 697-98 (“If the IRS intervenes at a later date and disqualifies the Plan, then and only then would it appear to us appropriate to preclude the Debtor from continuing to assert that its proceeds are exempt from claims of the Debtor’s creditors.”).
Debtor argues exemption statutes “are liberally construed in favor of the debtor” and thus the Keogh plan in question should be exempt. Russell M. Miller Co. v. Givan, 7 Utah 2d 380, 325 P.2d 908, 909-10 (1958). The legislative history of the statute is minimal and fails to provide guidance as to the legislative intent. Addi*923tionally, since the plan could have been remedied using the EPCRS program, any deficiencies were technical in nature and should not prevent the court from applying the exemption. Akin to the statute of In re Kaplan, this statute permits an unqualified plan to still be described in the section, and the court’s policy of interpreting exemption statutes in favor of the debtor support the bankruptcy and district court’s interpretation of the exemption statute. 162 B.R. at 697 (describing the exemption statute’s language as “very broad, and that it appears to have been drafted to include even plans which are not technically ‘tax qualified’ within its scope”).
In these circumstances, certification is appropriate. The plain language of the statute is ambiguous, the legislative history offers little guidance and the Utah courts have not previously squarely dealt with this issue. If the Utah Code was written to exempt from bankruptcy Keogh plans that fail to meet the qualifications of section 401(a) but are nonetheless described in the section then the bankruptcy and district courts were correct. If the Utah Code was written to integrate the Internal Revenue Code and have only those plans that met the requirements laid out in section 401(a) be exempt from bankruptcy then the courts were incorrect and should be reversed.
III. Conclusion
The Utah courts do not appear to have answered the question before us. Since this is a controlling question it is appropriate it be certified to the Utah Supreme Court. In the interests of comity and federalism, the Utah Supreme Court should be permitted to answer this question in the first instance if it should choose to do so under Utah RApp. P. 41.
The Clerk of this court shall transmit a copy of this certification order to counsel for all parties. The Clerk will also forward, under the Tenth Circuit’s official seal, a copy of this certification order and the briefs filed in this court to the Utah Supreme Court.
We will appreciate the consideration of this request. This appeal is ordered STAYED pending consideration of the certified question.
. This statute is now Utah Code Ann. § 7813-5-505(l)(a)(xiv) (2008).
. This statute is now Utah Code Ann. § 78B-5 — 505(l)(b)(ii) (2008).
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ORDER
This matter is before the court on appel-lee’s Petition For Panel Rehearing. We have construed the request as a motion to reconsider, as judgment has not entered in *924this appeal. See Fed. R.App. P. 40(a)(1). As construed, the motion seeks reconsideration of the court’s December 23, 2009 certification order to the Utah Supreme Court. The request is granted in part. An amended certification order shall issue. The request is granted to the extent of those amendments, but is otherwise denied. The Clerk is directed to forward the amended order to the Utah Supreme Court forthwith.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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SUMMARY ORDER
Plaintiffs-appellants Seven Hanover Associates, LLC, Water/Pearl Associates, LLC, and Builtland, LLC (jointly, “plaintiffs”), appeal from the District Court’s grant of summary judgment in favor of defendant-appellee Jones Lang LaSalle (“defendant”). Plaintiffs’ action stems from their contracts with defendant for property management and leasing services. In an order dated February 19, 2008, the District Court granted in part defendant’s motion for summary judgment dismissing plaintiffs’ non-contract claims, including allegations of: fraudulent misrepresentation, breach of fiduciary duty, unjust enrichment, conversion, negligent supervision and retention, and trespass to chattel. It also dismissed plaintiffs’ requests for equitable remedies, punitive damages, consequential damages for fraudulent concealment, and an accounting of all monies paid to defendant. The District Court denied defendant’s motion for summary judgment with respect to plaintiffs’ breach-of-contract claims and a counterclaim for breach of a brokerage agreement. Subsequently, by a stipulation dated December 1, 2008, the parties agreed to dismiss the counterclaim and claim for breach of contract with prejudice. We assume the parties’ familiarity with the underlying facts, the *50procedural history, and the issues on appeal.
We review de novo the District Court’s decision to grant summary judgment and, in the course of that review, we draw all permissible factual inferences in favor of the non-moving party. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir.2008). Plaintiffs argue that the District Court erred in granting summary judgment on its non-contract claims and requests for non-contractual relief because defendant allegedly owed plaintiffs a duty beyond their contractual relationship, thus giving rise to liability in tort for violation of that duty. Plaintiffs further assert that their contractual relationship with defendant does not extinguish defendant’s duty to respect plaintiffs’ property rights and defendant’s duty to faithfully discharge its obligations.
The District Court ruled specifically on this issue, concluding that “[t]o the extent that the Defendant owes any duties to Plaintiffs, the duties arise from the contracts .... [Existing codes of ethics and conduct] do not create a duty apart from the contracts and they do not create a fiduciary relationship between the parties.” Seven Hanover Assocs., LLC v. Jones Lang Lasalle Ams., Inc., 2008 WL 464337 at *4 (S.D.N.Y.2008). It then concluded that, “[s]ince Plaintiffs’ tort claims are based on the same factual allegations and same alleged duties as the breach of contract claim, and because there are no duties independent of the contract, the non-contractual claims must be dismissed.” Id. We agree with the District Court that defendant owed no duty to plaintiffs outside of their contractual agreement — a conclusion that necessitates dismissal of plaintiffs’ non-contractual claims and requests for equitable remedies and punitive damages.
We have considered plaintiffs’ remaining arguments and, substantially for the reasons stated by the District Court in its well-reasoned order of February 19, 2008, Seven Hanover Assocs., LLC., 2008 WL 464337, find them to be without merit.
CONCLUSION
Accordingly, we AFFIRM the judgment of the District Court.
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OPINION
PER CURIAM.
Ralph Baker, a prisoner, appeals from the order of the United States District Court for the District of New Jersey dismissing his civil rights complaint.
In July 2002, Baker was arrested and charged with committing four armed robberies and related offenses in Union, Mid-dlesex, and Somerset Counties. He was acquitted of armed robbery after a jury trial in Union County in March 2004 and was found guilty of the lesser included offense of theft and related gun charges; *148he was sentenced to seven and one-half years in prison. The New Jersey Superior Court Appellate Division (“Superior Court”) affirmed the convictions in February 2007.1
In Middlesex County, Baker was tried by a jury and convicted in 2005 of two counts of armed robbery and related offenses and was sentenced to life imprisonment on one count of armed robbery and to lesser terms on the remaining charges. In October 2006, the Superior Court denied his appeal without prejudice to his filing a motion for leave to file an appeal nunc pro tunc.2
In January 2008, Baker filed a civil rights complaint pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, against the police officers, police departments, county prosecutors, the public defender, and the Attorney General of New Jersey for claims arising out of the indictment in Somerset County and his convictions in Union and Middlesex Counties for theft and armed robbery.3 According to Baker, he filed separate motions for new trials in Union County and Middlesex County in December 2007, alleging that DNA tests conducted in 2006 by the New Jersey State Police at the request of Baker’s attorney in the Somerset County case linked a black ski cap used in the robberies to another suspect, Malik Johnson.4 In response, the prosecutor defendants filed allegedly false affidavits attesting that, statistically, Baker could not be ruled out as a suspect. In August and September 2007, the trial courts in both Middlesex County and Union County denied his motions for new trials. As we have already noted, Baker’s appeal of the denial of his new trial motions was denied. The New Jersey Supreme Court denied certification in October 2008.
In his § 1983 complaint, Baker claimed he was subjected to false arrest and false imprisonment and that the defendants engaged in malicious prosecution and conspiracy to maliciously prosecute him. He sought an order from the District Court enjoining Union, Middlesex, and Somerset Counties and the individual defendants from presenting allegedly false DNA evi*149dence and using constitutionally infirm photographic lineup identifications in the Superior Court and New Jersey Supreme Court and in the trial court in Somerset County where the charges were still pending. He demanded that the District Court order a federal investigation into the matter.5 He did not request damages.
Detective Edward Chabek filed a motion for summary judgment, and the remaining defendants (except Sergeant Joseph Shannon) filed motions to dismiss, claiming, among other things, that the complaint was barred by Heck v. Humphrey, the Rooker-Feldman doctrine and the Younger abstention doctrine.6 The District Court denied Baker’s motion to amend his complaint, granted the defendants’ disposi-tive motions, and dismissed the complaint in its entirety as to all defendants.7 Baker filed this timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Baker has been granted leave to proceed in forma pauperis on appeal. Because his appeal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
The District Court properly dismissed Baker’s claims for injunctive relief. We agree with the District Court that, because the complaint implies the invalidity of his convictions in Middlesex and Union Counties, his sole remedy for contesting his convictions and/or sentences was through a petition for a writ of habeas corpus. See Nelson v. Campbell, 541 U.S. 637, 643, 646, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); see also Heck, 512 U.S. at 485-86, 114 S.Ct. 2364. The Somerset County armed robbery charge was pending trial at the time Baker filed his complaint. The trial court’s dismissal of the Somerset County indictment in April 2008 renders moot Baker’s request for an injunction barring the Somerset County defendants from using certain evidence at his criminal trial. To the extent that he also requested a broad injunction barring the use of the evidence at any future trial, his claim is too speculative to sustain.
The District Court did not err in dismissing Baker’s motion to amend the complaint. Amendment might have been required under Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002), absent any equitable considerations or the futility of the amendment. Here, granting leave to amend would have been futile because the proposed amended complaint (adding a claims for damages) would fail to state a claim upon which relief could be granted. With the exception of the Somerset County defendants, Baker’s damages claims for malicious prosecution and conspiracy against the defendants are barred by the favorable termination rule announced in Heck because the unlawfulness of the defendants’ alleged actions imply the invalidity of the Union and Middlesex County convictions and Baker cannot show that these convictions have been reversed or otherwise invalidated. Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. 2364. *150Baker’s acquittal by a jury on the armed robbery charge in Union County did not constitute a “favorable termination” because he was convicted of the lesser-included offense of theft in the same criminal proceeding for the same criminal act. See e.g., Kossler v. Crisanti, 564 F.3d 181, 188 (3d Cir.2009) (concluding that the criminal judgment as a whole must indicate the plaintiffs innocence of the alleged misconduct charged).
As for the Somerset County defendants, the trial court’s dismissal of the Somerset County indictment at the prosecutor’s request satisfies Heck’s favorable termination rule. See Kossler, 564 F.3d at 187 (listing the ways in which a plaintiff may demonstrate favorable termination, including “the formal abandonment of the proceedings by the public prosecutor”). The Somerset County prosecutors, Wayne Forrest and James Lankford, however, are absolutely immune from suit for their actions in presenting evidence in response to Baker’s new trial motion. See Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that prosecutor was absolutely immune from a suit for damages because his alleged actions were within the scope of the function of “initiating a prosecution and presenting the State’s case”). As for Somerset County defendants Sergeant Randy Stratton and defense counsel, Jack Venturi, the amended § 1983 malicious prosecution and conspiracy claims require that Baker demonstrate, among other things, that Somerset County initiated criminal proceedings against him without probable cause. See Estate of Smith v. Marasco, 318 F.3d 497, 521-22 (3d Cir.2003). Baker’s arrest was based in part on the victim’s independent photographic identification of him, which is sufficient to establish probable cause to initiate criminal proceedings against him. See Wilson v. Russo, 212 F.3d 781, 789 (3d Cir.2000) (“probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person arrested”) (citation omitted). Notably, the DNA testing results at issue in this case were conducted in 2005 and the results reported in 2006, well after Baker was arrested and indicted. Thus, we conclude that amendment of Baker’s § 1983 malicious prosecution claims against the Somerset County defendants would be futile.
Although the rule in Heck does not apply to Baker’s false arrest/imprisonment claims, see Wallace v. Kato, 549 U.S. 384, 393-394, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), his claims are barred by the applicable statute of limitations. See Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir.1998). We have held that New Jersey’s two-year limitations period on personal injury actions, N.J.S.A. 2A:14-2, applies to civil rights claims under § 1983. Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989). Because Fleck’s deferred accrual rule does not apply, Baker’s Fourth Amendment claim accrued when he appeared before a magistrate and was bound over for trial or arraigned on charges. See Wallace, 549 U.S. at 389-392, 127 S.Ct. 1091. His imprisonment does not toll the running of the statute of limitations. See Hughes v. Smith, 264 F.Supp. 767, 769 (D.N.J.1967), aff'd, 389 F.2d 42 (3d Cir.1968). Baker alleges that he was arrested on July 16, 2002. The date that he was arraigned or otherwise bound over for trial is not in the record. It is certain, however, that he was arraigned before his trial in Union County began in March 2004. Assuming in Baker’s favor that he was arraigned on the first day of trial, under New Jersey’s two year statute of limitations, he had until *151March 2006, to file a timely complaint. His complaint was filed in January 2008, well after the limitations period had expired.
Our independent review reveals that there is no arguable basis to challenge the District Court’s dismissal order on appeal. Accordingly, Baker’s appeal will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). His motion for transcripts is denied.
. Baker was also found guilty and convicted of another weapons offense under a separate indictment, for which he received a seventeen year sentence. The Superior Court reversed and remanded the conviction. It appears that the indictment was dismissed sometime thereafter.
. It appears that Baker has not successfully filed a direct appeal of his conviction and life sentence. The last Superior Court order entered with respect to the Middlesex County case is the order entered in March 2008, denying his appeal nunc pro tunc (of his conviction and of the denial of his new trial motions) without prejudice. The order advised Baker that he could file an appeal and a motion for leave to file an appeal nunc pro tunc in which he should explain the causes for the delay in filing a direct appeal. There appears to be no appeal currently pending in the Superior Court.
. Baker attempted to amend his complaint twice. He did not serve the first amended complaint on the defendants. Baker requested that the District Court return the first amended complaint because he filed it by mistake. See D. Ct. Dkt. No. 13. As for the second amended complaint, which added a claim for damages, the District Court denied Baker's request to amend the complaint as futile because the amendment would not change the result.
. In May 2006, Union County voluntarily dismissed an indictment charging Baker with a second armed robbery and related offenses because the frail elderly victim could not travel from his home in Florida. (See brief in support of summary judgment, "Declaration of D. Schwartz,” Exh. "J”). Baker claims that the Somerset County indictment, charging Baker with armed robbery and related offenses, was dismissed voluntarily on April 3, 2008, because of the DNA testing results.
. The District Court did not err in denying Baker's request for relief as it lacks authority to order a such an investigation.
. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
.By dismissing the complaint "in its entirety,” the District Court dismissed all claims against Middlesex County Defendant Sergeant Joseph Shannon. The parties had stipulated to the dismissal of all claims against the public defender, Yvonne Smith Segars.
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OPINION
PER CURIAM.
Richard Nightingale appeals the District Court’s order dismissing his complaint as legally frivolous. For the reasons below, we will affirm.
In his complaint, Nightingale alleged that evidence favorable to his defense in a state court criminal proceeding had been suppressed. As relief, he only requested the opportunity to examine the evidence in the Commonwealth’s possession. The District Court determined that such relief was not available via a complaint filed under 42 U.S.C. § 1983 and that Nightingale could request such relief in a habeas proceeding. Nightingale filed a notice of appeal and a motion for reconsideration which the District Court denied.
We have jurisdiction under 28 U.S.C. § 1291. In Distnct Attorney’s Office for the Third Judicial Dist. v. Osborne, — U.S. -, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), a state prisoner brought a § 1983 action claiming he had a right to subject evidence used against him to DNA testing. The United States Supreme Court assumed without deciding that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), does not bar such a claim under 42 U.S.C. § 1983. However, the Court held that after a person has been convicted, he has a limited liberty interest in postconviction relief.
The question is whether consideration of Osborne’s claim within the framework of the State’s procedures for postconviction relief “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” or “transgresses any recognized principle of fundamental fairness in operation.” Federal courts may upset a State’s postconviction relief procedures only if they are fundamentally *152inadequate to vindicate the substantive rights provided.
Osborne, 129 S.Ct. at 2320 (citations omitted). The Court noted that it was the defendant’s burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief.
In his complaint, Nightingale did not describe the crimes for which he was convicted or explain how the documents he alleged are being withheld are material and favorable to him. He did not describe any attempts he has made to use Pennsylvania post-conviction relief procedures to obtain these documents. He has not sufficiently alleged that the Pennsylvania state court procedures are inadequate to vindicate his rights. Osborne, 129 S.Ct. at 2320.
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6.
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OPINION
PER CURIAM.
Cholo Dongon appeals pro se from a District Court order dismissing his action. For substantially the same reasons, we will affirm.
In October 2008, Dongon filed a complaint in which he moved for damages and a protective order against various courts and judges in the state of New Jersey, who he believed had denied him due process of law and committed fraud against him. Dongon’s claims stem from an underlying family matter in which the state court imposed and affirmed a child support obligation on him as a New Jersey resident. Dongon argued that the actions taken by the state courts and judges violated his ■ constitutional rights, were without jurisdiction, and requested that the federal court intervene. He also named Donna Bañar, a private citizen, in his suit.
Appellees filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and argued that Dongon’s complaint revealed no allegations of fact or legal theory that would support any of the claims asserted against the defendants. The District Court agreed, finding that Dongon’s claims for rulings issued by judges and courts in underlying family matters in state court were barred by absolute judicial immunity, quasi-judicial immunity, and Eleventh Amendment immunity.1 In addition, the District Court ruled that because one defendant is a private citizen and not a state actor, she cannot be subject to liability under 42 U.S.C. § 1983. Dongon timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We will summarily affirm if Don-gon’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. Our review is plenary. See Miller v. Fortis Benefits Ins. Co., 475 F.3d 516, 519 (3d Cir.2007). Dismissal is proper if a party fails to allege sufficient factual matter, which if accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, -— U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Dongon’s action was properly dismissed because he cannot receive the relief he requests. He cannot sustain a claim against Judges Mantineo, Lisboa, and Lisa because judges are entitled to absolute immunity from liability based on actions taken in their official judicial capacity. Briscoe v. LaHue, 460 U.S. 325, 334, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (citing Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)); Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Dongon’s allegations that these judges committed “willful fraud” are unsupported, and his disagreement with the judges’ rulings do not provide a basis for relief.
Similarly, Dongon’s claims against New Jersey Family Support Divi*156sion; the Superior Court of New Jersey; New Jersey Administrative Office of Courts; and the Superior Court of New Jersey, Appellate Division were properly dismissed. Dongon does not allege any specific action by these entities. Even if he did, any actions taken by those charged with the responsibility of carrying out a court’s order would be barred by the doctrine of absolute quasi-judicial immunity. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 772-73 (3d Cir.2000). Alternatively, the state courts, its employees, and the judges are entitled to immunity under the Eleventh Amendment because they are part of the judicial branch of the state of New Jersey, and therefore considered “arms” of the state. See Johnson v. State of N.J., 869 F.Supp. 289, 296-98 (D.N.J.1994).
Moreover, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed by a “person” acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Neither the named judges nor the courts or its employees are “persons” subject to liability under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The remaining defendant, Donna Bañar, is a private citizen and not a state actor, and therefore cannot be subject to liability under § 1983. We also conclude that Dongon’s general allegations that his constitutional rights were violated fail to state a claim for relief. To the extent that errors of state law have occurred, even if true, these claims do not amount to a denial of due process warranting federal court intervention. See Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Engle v. Isaac, 456 U.S. 107, 121 & n. 21, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
Although the District Court did not address whether Dongon’s complaint can be construed as a request for injunctive relief, even if it were, the Younger abstention doctrine applies. The Supreme Court has articulated a longstanding public policy against federal court interference with state court proceedings and instructs federal courts to refrain from taking any action in cases where the federal plaintiff has or had adequate redress in state proceedings. Younger v. Harris, 401 U.S. 37, 43, 91 S.Ct. 746, 27 L.Ed.2d 669(1971). Because it appears that state court proceedings are pending or ongoing in Dongon’s child support matter, it would be inappropriate for this Court to interfere with the state’s interest in administering its own family court. See Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir.2006).
Accordingly, because dismissal was proper and because the appeal presents no substantial question, we will summarily affirm the District Court judgment. Appellant’s remaining motions are denied as moot.
. The District Court did not address Appel-lees' argument that Dongon’s complaint is barred by the Rooker-Feldman doctrine and because of the domestic relations exception to federal jurisdiction.
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OPINION
PER CURIAM.
Appellant’s1 employer was recently the subject of a federal grand jury investigation. The Government issued Appellant a subpoena to produce his fingerprints for use by the grand jury. Appellant provided his fingerprints to the grand jury pursuant to an agreement with the Government that preserved Appellant’s right to seek a protective order from the District Court to prevent the Government from entering his fingerprints into any database or from providing them to any other law enforcement agency. Appellant also sought to have the Government destroy the fingerprints at the close of its investigation. The District Court denied the motion, and Appellant filed a timely notice of appeal.
We are satisfied that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. An order is appealable under the collateral order doctrine where it (1) “conclusively determines the disputed question,” (2) “resolves an important issue that is completely separate from the merits of the dispute,” and (3) will be “effectively unreviewable on appeal from a final judgment.” Shingara v. Skiles, 420 F.3d 301, 304-05 (3d Cir.2005) (internal quotation marks omitted). The District Court’s denial of Appellant’s motion for a protective order satisfies this standard: (1) the Court “conclusively determine[d]” that Appellant was not entitled to the relief he sought; (2) Appellant’s challenge to the Government’s future use of his fingerprints is “completely separate” from the grand jury’s investigation of Appellant’s employer; and (3) the District Court’s order will be “effectively unreviewable” on appeal, as Appellant is neither a subject nor a target of the grand jury investigation (thus presumably foreclosing a direct appeal from a criminal conviction as a possible avenue for appellate review). Cf. Perlman v. United States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 62 L.Ed. 950 (1918) (prospective grand jury target could immediately appeal the refusal to quash a grand jury subpoena directed to a third party in possession of the target’s property); United States v. RMI Co., 599 F.2d 1183, 1186-87 (3d Cir.1979) (applying Perlman and holding that district court’s denial of corporation’s motion for a protective order seeking to prevent the disclosure of documents disclosed to the grand jury in response to a subpoena was an immediately appealable order). In this context, we are satisfied that the denial of Appellant’s motion for a protective order is sufficiently final for purposes of our appellate review. We review the District Court’s denial of a protective order for abuse of discretion. Shingara, 420 F.3d at 305.
In support of his contention that the District Court erred in denying his motion, Appellant points to the following statement:
Finally, it may appropriately be noted that since the Government has no general right to retain files of handwriting exemplars, fingerprints and mug shots, any enforcement order may properly, on the witness’ request, provide that if these materials do not prove to be relevant to the grand jury’s inquiry, or to a resulting indictment, they be returned to the witness or destroyed.
In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93-94 (3d Cir.1973). First, we agree with Appellee that this statement *166is dictum, as Schofield dealt primarily with the showing the Government is required to make before a district court may hold a witness in civil contempt for refusing to comply with a subpoena. See id. at 88. Further, even if, for the sake of argument, this statement establishes a rule which applies to grand jury witnesses, Appellant has failed to show that he falls within the ambit of that rule. Namely, Appellant has not shown or even alleged that his fingerprints are not relevant to the grand jury’s inquiry or the resulting indictment.2 Finally, the language in Schofield is discretionary. A district court “may properly” enter an order directing the Government to return witness materials if they are not relevant to the grand jury’s investigation. Id. at 93. Appellant points to no case-law or statute which requires a district court to return or destroy a grand jury witness’s fingerprints.
Appellant argues that the District Court abused its discretion by allowing the Government to publish his fingerprints in a database in violation of Fed.R.Crim.P. 6. The Government, however, has not indicated that it would “publish” Appellant’s fingerprints in any database nor has Appellant specifically alleged which portion of Rule 6 the Government’s retention of his fingerprints would violate. Indeed, Rule 6 allows disclosure of a grand jury matter to any government personnel that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law. Fed. R.Crim.P. 6(e)(3)(A)(ii).
Finally, Appellant argues that the District Court ignored his separation of powers argument. Apparently, Appellant believes that the U.S. Attorney, without Congressional authorization, will build a national database of citizens’ “biometric identifiers” through the use of grand jury subpoenas. (Appellant’s Br. at 19.) This argument is patently meritless. In fact, Schofield,, the case on which Appellant relies in the first portion of his brief, requires the Government to make “some preliminary showing by affidavit that each item [being subpoenaed] is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” In re Grand Jury Subpoena, 223 F.3d 213, 216 (3d Cir.2000) quoting Schofield, 486 F.2d at 93). Therefore, the District Court did not abuse its discretion in denying Appellant’s motion for a protective order.
For the foregoing reasons, we will affirm the District Court’s order.
. Because this is an appeal from a grand jury proceeding, the docket of which is sealed, we will refer to the appealing party in this matter only as "Appellant."
. Appellant asserts that the grand jury has returned an indictment against his employer. The Government does not address this issue.
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OPINION
PER CURIAM.
Curtis Allen Young, a federal inmate, appeals from an order denying his habeas corpus petition under 28 U.S.C. § 2241. We will affirm.
In 2002, a jury in the United States District Court for the Eastern District of Virginia convicted Young of uttering counterfeit securities; falsely making a counterfeit security; possession of cocaine with intent to distribute; possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(e)(1) (“Count 5” of the Indictment); and possession of a firearm after a felony conviction. The trial court imposed a sentence of, inter alia, 60 months on Count 5, to be served consecutively to 145 months in prison for the other convictions. The United States Court of Appeals for the Fourth Circuit affirmed, and the United States Supreme Court denied certiorari review.
In 2004, Young filed a motion in the trial court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, raising claims of ineffective assistance of counsel, improper use of perjured testimony, insufficiency of the evidence, and sentencing error. The trial court denied relief on the merits, and the Fourth Circuit denied Young’s application for a certificate of ap-pealability.
After additional unsuccessful post-conviction filings in the trial court, Young filed an application in December 2007 with the *168Fourth Circuit seeking permission under 28 U.S.C. §§ 2244 and 2255 to file a second or successive § 2255 motion. Young claimed that, based on his recent receipt of a copy of the trial court’s jury instructions, he is entitled to § 2255 relief because the trial court constructively amended Count 5 through its instructions, and counsel was ineffective in failing to object to those instructions. On January 15, 2008, the Fourth Circuit denied Young leave to file the proposed second or successive § 2255 motion.
Young then commenced this habeas proceeding under 28 U.S.C. § 2241 in the United States District Court for the Western District of Pennsylvania, his district of confinement. He argued that he should be permitted to proceed with his claim that the trial court improperly amended the indictment through its jury instructions because § 2255 is “inadequate or ineffective” to test the legality of his conviction on Count 5. After the government filed a response in opposition, the Magistrate Judge concluded that Young cannot show that his remedy under § 2255 is inadequate or ineffective, and rejected Young’s argument that his claim falls within the narrow exception for seeking § 2241 relief recognized in In re Dorsainvil, 119 F.3d 245 (3d Cir.1997). The District Court overruled Young’s objections and agreed with the Magistrate Judge that Young failed to meet the test for proceeding under § 2241 rather than § 2255. Young timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s legal conclusions, and we apply a clearly erroneous standard to the court’s factual findings. Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).
Young’s argument for relief turns on the language of 18 U.S.C. § 924(c)(1)(A), the provision under which he was charged in Count 5. Section 924(c)(1)(A) provides in relevant part that “any person who, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall ... be sentenced to a term of imprisonment of not less than 5 years[.]” Count 5 of the indictment charged Young with “possess[ing] a firearm ... in furtherance of a drug trafficking crime.” Young argues that the trial court constructively amended the indictment language by giving instructions that purportedly allowed the jury to convict him based on conduct other than possessing firearms in furtherance of a drug trafficking crime, such as “using or carrying” a firearm in furtherance of a drug trafficking crime, or possessing a firearm “during and in relation to” a drug trafficking crime. Appellant’s Br. at l.1 Thus, Young argues, he either was convicted of an offense not charged in the indictment, or convicted of an offense that does not exist under § 924(c)(1)(A).
After a careful review of the record, we agree with the District Court that Young cannot proceed with his claim under § 2241. A § 2255 motion is “the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Con*169stitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). A prisoner can raise such a challenge via § 2241 only upon showing that § 2255 is “inadequate or ineffective to test the legality of his detention.” § 2255(e). Section 2255 is not “inadequate or ineffective” merely because the Fourth Circuit Court of Appeals denied Young permission to file a second or successive § 2255 motion raising his present claim. See In re Dorsainvil, 119 F.3d at 251. Indeed, the safety valve provided under § 2255 is quite narrow, see id., and it clearly does not apply here.
In In re Dorsainvil, the petitioner argued that his conduct was made noncriminal in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and given his inability to proceed under § 2255, we held that he could use § 2241 to challenge his conviction for a crime that an intervening change in the substantive law may have negated. 119 F.3d at 251. Young, in contrast, does not rely on an intervening change in the law to argue that his conduct is noncriminal under § 924(c)(1)(A). In addition, unlike the petitioner who “had no earlier opportunity to challenge his conviction,” In re Dorsainvil, 119 F.3d at 251, Young merely asserts that he failed to raise his claim in prior proceedings because he was unable to obtain a copy of the jury instructions. We agree with the Magistrate Judge that Young has not established that he acted diligently to obtain the jury instructions or trial transcripts, or that he could not have obtained this allegedly “unavailable” material in time to raise his claims on direct appeal, or in his first § 2255 proceeding. See Report & Rec. at 21-22. Thus, Young cannot viably contend that he lacked an earlier opportunity to challenge his conviction on the ground now asserted.
Furthermore, as the District Court observed, Young has no viable claim that he may now be innocent of the crime for which he was charged and convicted — possessing a firearm in furtherance of drug trafficking. Young does not deny ownership of the weapons at issue, and clearly he possessed those weapons in furtherance of trafficking, as expressly found by the Fourth Circuit Court of Appeals when it rejected Young’s challenge on direct appeal to the sufficiency of the evidence to support the conviction on Count 5.2 Moreover, the “Special Verdict Form” used at trial establishes that the jury found Young guilty in Count 5 of “Possession of a Firearm in Furtherance of a Drug Trafficking Crime” — precisely the crime for which he was charged. Finally, the District Court correctly concluded that Young failed to carry his burden, through citation to any record evidence, that the jury actually convicted him of a crime different from the one charged, and the Special Verdict Form amply confirms that, notwithstanding the trial court’s purported instructions on Count 5, the jury convicted on the offense charged.
*170We will affirm the District Court’s judgment.
. Young has not submitted a copy of the trial transcript in support his claim. He relies instead upon a copy of a written jury instruction, which the trial court purportedly used to instruct the jury on § 924(c)(1)(A) as follows: " 'Whoever, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, ... in furtherance of any such crime, ... shall, ...' be guilty of an offense against the United Slates.” Young also cites a separate instruction that the trial court purportedly gave defining the phrase “carries or possesses a firearm.”
. See United States v. Young, 58 Fed.Appx. 980, 983 (4th Cir.2003) (“We conclude that there was sufficient evidence to find that Young had knowledge of and access to the firearms and possessed the firearms to further his drug activity. Along with the statement he made to police regarding the location of the firearms, Young also acknowledged possession of the firearms when he appeared at his bond hearing and told the magistrate judge that ‘the guns are mine.’ Furthermore, the weapons recovered were a fully loaded handgun and a fully loaded rifle that were found in the same residence as the cocaine. The handgun was located on top of a headboard, and the rifle was under a bed, making them readily accessible. Also, as a convicted felon, Young's possession of the weapons was illegal. Based on the evidence, a jury could reasonably conclude that a connection existed between Young's possession of the firearms and his drug trafficking activity.”).
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OPINION
PER CURIAM.
Caleb Malek Beyah filed this civil rights action pursuant to 42 U.S.C. § 1983 against the New Jersey State Parole Board following an adverse parole decision. In his complaint, Beyah argued that the Board’s decision was “without legal justification,” and that he should have been granted parole “on grounds of [his] advan-cemets [sic] and mental, and spiritual changes.” The District Court granted Be-yah’s application to proceed in forma pau-peris. The District Court then dismissed the complaint without prejudice1 pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(l) because its only identifiable claim was Heck-barred. The District Court declined to construe the complaint as a petition for habeas corpus pursuant to 28 U.S.C. § 2254 “[b]ecause of the negative consequences that flow from the filing of such a petition.” Beyah appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s sua sponte dismissal for failure to state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Having granted Beyah leave to proceed in forma pauperis, we must dismiss his appeal pursuant to 28 U.S.C. § 1915(e)(2)(B) if it is frivolous, i.e., if it has no arguable basis in law. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), precludes § 1983 claims whose success “would necessarily imply the invalidity” of a conviction or sentence that has not already been reversed, expunged, declared invalid, or called into question by a federal court’s issuance of a writ of habeas corpus. Id. at 487, 114 S.Ct. 2364. The District Court properly concluded that this doctrine applies to Beyah’s § 1983 action, as *171none of the aforementioned prerequisites is present in his case.
Accordingly, because this appeal presents no arguable legal issue, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
. The District Court noted that its dismissal, though without prejudice, "is meant to finally resolve the matter."
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OPINION
SMITH, Circuit Judge.
On June 30, 2006, Ronald Gallo began serving a three to twelve month term of imprisonment at the Washington County Correctional Facility in Washington County, Pennsylvania. The health care screening form noted that the day before his incarceration Gallo had been prescribed an antibiotic for an infected finger on his left hand, which had been incised and drained. The following day, an order was issued to continue the course of antibiotic therapy. A progress note dated July 3, 2006, indicated that the finger was “doing better” and that Gallo was to keep the wound clean and open.
In late August, Gallo complained of a “bite on his left elbow” and sought medical treatment. Warm compresses were prescribed. The following morning, Gallo was examined by a licensed practical nurse and a dressing was applied to the affected area, which was notable for the presence of a tan-colored drainage. A physician’s assistant assessed the area the following day, obtained a culture and sensitivity, incised and drained the wound, and prescribed an antibiotic. The culture revealed that Gallo had an infection caused by methicillin resistant staphylococcus au-reus (MRSA). As a result, Gallo’s antibiotic was changed to one that was effective against MRSA.
On September 19, Gallo requested a sick call because of pain in his left thigh and knee, which he attributed to playing basketball the previous week. Although this request was denied, a second request was granted on September 22. Physical examination revealed that Gallo had difficulty ambulating. He was transferred to the medical unit for observation, treated with over-the-counter analgesics, and directed to elevate his leg and to apply ice. Further evaluation on September 25 revealed no redness or swelling of the leg, or the presence of a fever. On September 27, a request was made for an evaluation by a physician, and Dr. Richard Aprea examined Gallo. He ordered an x-ray of the leg, crutches, ice to the affected area, and Ibuprofen, an anti-inflammatory agent. The x-ray showed no fracture or dislocation. On September 29, Gallo developed a fever. The medical staff contacted Dr. Aprea, who referred Gallo to the Washington Hospital Emergency Room for evaluation. Gallo was subsequently diagnosed with a MRSA infection in his left thigh affecting his muscles and his femur. Gallo required multiple surgeries and an extensive course of medical treatment.
On April 10, 2008, Gallo initiated a civil action, under 42 U.S.C. § 1983, against Washington County, Warden Joseph Pel-zer, and Nurse Cheryl McGavitt, alleging that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment to the United States Constitution. In addition, Gallo brought state law claims for medical malpractice against his *173treating physicians and a physician’s assistant. All defendants moved for summary judgment and the District Court granted their motions as to the federal claims. The Court held that while the evidence may have been sufficient to establish negligence, it was insufficient to establish the culpability required for a § 1983 action claiming deliberate indifference. The Court declined to exercise supplemental jurisdiction over the state law claims, and dismissed them.
This timely appeal followed.1 Gallo contends that the District Court erred in granting the motions for summary judgment against the prison defendants. We will affirm.
After a de novo review of the record, we conclude that the District Court properly granted summary judgment as to Gallo’s claim against Nurse McGavitt. Gallo contends that there were genuine issues of material fact as to whether Nurse McGavitt violated his constitutional rights by providing “inadequate medical care” following the positive MRSA culture and his persistent complaints of leg pain in September. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court instructed that “an inadvertent failure to provide adequate medical care” does not constitute deliberate indifference. Id. at 105, 97 S.Ct. 285. Thus, negligence in “treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106, 97 S.Ct. 285. Rather, in order to survive summary judgment, Gallo must demonstrate that Nurse McGavitt acted with a “conscious disregard” of his serious medical needs. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (citing Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); and Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Yet the facts adduced by Gallo demonstrate that the prison medical staff, including Nurse McGavitt, was actively engaged in efforts to alleviate his pain, and to diagnose and to treat his condition. Accordingly, we will affirm the District Court’s grant of summary judgment on Gallo’s deliberate indifference claim against Nurse McGavitt.
Gallo contends that the District Court also erred in granting summary judgment in favor of Washington County and Warden Pelzer on his claim of municipal liability for deliberate indifference. He asserts that the evidence of record established actual knowledge of the threat of MRSA in the facility, and a failure by the facility to implement policies to address that threat. He also points to the existence of a policy that required inmates to sanitize their own cells, provided that the facility was not in lockdown, and claims that this policy placed the inmates directly at risk of infection.
Municipal liability, as Monell v. Department of Social Services teaches, hinges on whether a “government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,” causes the violation of a constitutional right. 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court instructed that municipal liability
*174attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by [municipal] policymakers. Only where a failure to [act] reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a [municipality] be liable for such a failure under § 1983.
Id. at 389, 109 S.Ct. 1197 (citation omitted).
Thus, in the context of this case, the question is whether the evidence demonstrates that the correctional facility made a deliberate choice not to take reasonable steps to address a substantial risk of serious harm to an inmate. Id. at 390, 109 S.Ct. 1197; see Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (affirming that an inmate “states a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health”); Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (considering the showing needed for a deliberate indifference claim based on a failure to prevent harm to an inmate). Relevant to this inquiry is the extent to which the risk of harm was obvious and whether the failure to implement a policy or policies to address that harm was likely to result in the violation of Gallo’s constitutional right. Hams, 489 U.S. at 390, and 396-97, 109 S.Ct. 1197 (O’Connor, J., concurring) (observing that whether policymakers had notice that a particular omission was substantially certain to result in a constitutional violation will inform the deliberate indifference analysis). Furthermore, because Gallo’s claim asserts a violation of the Eighth Amendment, he must establish both that the prison officials were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that they] ... dr[ew] the inference.” Farmer, 511 U.S. at 837 and 841, 114 S.Ct. 1970 (instructing that the objective standard set forth in Hams “is not an appropriate test for determining the liability of prison officials under the Eighth Amendment”). In other words, Gallo’s Eighth Amendment claim requires a “showing that the official was subjectively aware of the risk.” Id. at 829, 114 S.Ct. 1970.
Here, Gallo has not satisfied his burden of establishing facts sufficient to support his municipal liability claim. The evidence adduced is sufficient to establish actual knowledge by Warden Pelzer of the existence of MRSA and that a few inmates in the facility may have been infected with the pathogen, and constructive knowledge by Warden Pelzer that additional policies could have been implemented in an effort to decrease the risk of contracting MRSA in a correctional facility. But the evidence of record does not show that the officials of the Washington County Correctional Facility were subjectively aware that the policies in effect were so inadequate that they resulted in the inmates being exposed to a substantial risk of contracting infection by MRSA. Accordingly, we will affirm the District Court’s order granting summary judgment on Gallo’s municipal liability claim against Washington County and Warden Pelzer.
. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of summary judgment and apply the same standard that the district court should have applied. Nunez v. Packman, 578 F.3d 228, 230 (3d Cir.2009).
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OPINION
PER CURIAM.
Walter J. Himmelreich, proceeding pro se, appeals from the District Court’s August 14, 2009 order denying his motion for a temporary restraining order and a preliminary injunction. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
Himmelreich is confined at the Federal Correctional Institution — Elkton after pleading guilty to production of child pornography. In December 2006, the District Court sentenced him to 240 months of incarceration, plus in restitution and other *176penalties.1 In July 2009, Himmelreich filed a motion seeking to vacate his conviction pursuant to 28 U.S.C. § 2255. On August 13, 2009, Himmelreich filed a motion for a temporary restraining order and a preliminary injunction, requesting that the District Court compel the Bureau of Prisons (“BOP”) to cease its collections system under the Inmate Financial Responsibility Program (“IFRP”).
Himmelreich states that he is a member of a class of inmates sentenced after April 24, 1996, and is therefore subject to the Mandatory Victim Restitution Act (“MVRA”). He claims that the sentencing court did not establish a payment schedule detailing how he would repay his restitution order and fine while incarcerated. He relies on United States v. Corley, 500 F.3d 210 (3d Cir.2007), judgment vacated, — U.S. -, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009), in which we held that a restitution order that delegates to the BOP how a defendant will pay restitution while incarcerated constitutes an improper delegation of judicial function. He further claims that the BOP “illegally coerced” him into signing a payment plan contract. He argues that the BOP lacks the authority to withhold his prison wages through the IFRP, and that the program as applied to him constitutes an unconstitutional taking. The District Court denied the motion after finding that Himmelreich failed to demonstrate any immediate injury sufficient to qualify for a temporary restraining order and failed to meet the requirements for a preliminary injunction. Himmelreich filed a timely appeal.
“As a general proposition, orders granting or denying temporary restraining orders are unappealable.” Nutrasweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689, 692 (3d Cir.1997). However, we do have appellate jurisdiction over the order denying Himmelreich’s motion for a preliminary injunction under 28 U.S.C. § 1292(a)(1). “We review the denial of a preliminary injunction for an abuse of discretion, an error of law, or a clear mistake in the consideration of proof.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004) (internal quotations omitted).
A preliminary injunction is “an extraordinary remedy” that should be granted only if the plaintiff shows: “(1) a likelihood of success on the merits; (2) that [he] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Id. The District Court found it unlikely that Himmelreich could show an improper delegation to the BOP, given that the judgment provides that the restitution is due immediately, and further provides for a fifty dollars per month payment schedule for any remaining unpaid balance upon commencement of his supervised release. The District Court also found that the public interest in compensating victims of child pornography and in enforcing restitution orders weighs against granting an injunction. After reviewing the record, we agree with the District Court that Himmelreich did not satisfy the criteria for the grant of a preliminary injunction.
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 Cir. I.O.P. 10.6.
. The judgment shows that the restitution is due immediately, payable during his incarceration, and provides for a payment schedule for any remaining amount due upon commencement of supervised release. See Judgment, p. 7.
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviat*178ed recitation to explain why we will affirm the judgment of conviction and sentence of the District Court.
Wilbert Smith, appellant, was convicted of Robbery in the First Degree, Possession of a Firearm during the Commission of a Crime of Violence (3 counts), Assault in the First Degree, Assault in the Third Degree, and Possession of Ammunition. He was sentenced to a concurrent sentence of fifteen years imprisonment and fined $35,000. The District Court, Appellate Division, upheld the conviction.
Smith first argues on appeal that the prosecution violated Doyle v. Ohio by using his post Miranda silence against him at trial. 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The prosecutor asked the arresting officer:
Q.... [Wjhile you were out there on the scene did you advise Mr. Smith of his Miranda rights?
A. Yes, on the scene he was advised of his rights.
Q. Did he tell you anything?
A. He didn’t speak. He didn’t say anything at all.
The prosecutor then stated: “Thank you, Your Honor. We pass the witness.” Because Smith did not raise this issue prior to this appeal, we review for plain error. Government of Virgin Islands v. Rosa, 399 F.3d 283 (3d Cir.2005).
The Supreme Court in Doyle stated that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 617-18, 96 S.Ct. 2240. The question, therefore, is whether the record evinces the prosecution’s advantageous use of Smith’s silence to draw a negative inference against him. See Government of Virgin Islands v. Davis, 561 F.3d 159, 164 (3d Cir.2009). We find no such evidence here. We refuse to remake Doyle, as Smith requests, into a per se rule that regards any reference to a defendant’s Miranda rights as a violation of due process rights.
Next, Williams argues that the government failed to prove that Smith committed a a robbery. Robbery is “the unlawful taking of personal property in the possession of another from his person or immediate presence and against his will by means of force or fear.” 14 V.I.C. 1861. Smith claims that there is not evidence of a taking “from [the victim’s] person or immediate presence.”
This element of the statute has not been addressed in a precedential opinion by the courts of the Virgin Islands. We have, however, had opportunity to comment on similar language in a federal carjacking statute. There we stated that “from the person or presence of another” meant that the object was within his “reach, observation, or control, that he could if not overcome by violence or prevented by fear, retain his possession of it.” United States v. Lopez, 271 F.3d 472, 486 (3d Cir.2001). The critical nexus in this analysis is fear of or an actual threat of violence that causes the victim to relinquish control of his property. In this case, Smith admits to alluding to money that the victim was carrying in his backpack, brandishing a weapon, chasing the victim, and picking up the backpack dropped by the victim while fleeing. This, in our view, is substantial evidence of both Smith’s intent to commit robbery, and robbery from the victim’s person or immediate presence.
Smith then argues that first degree robbery under 14 V.I.C. § 1862 is not a dangerous crime under 23 V.I.C. § 451(e) because the later statute refers only to “robbery,” rather than “robbery in the *179first degree.” This argument is utterly meritless.
Smith also asserts that there was insufficient evidence to convict him of Robbery in the First Degree, Assault, or Possession of a Firearm During the Commission of a Crime of Violence. Beyond his arguments, addressed above, that one element of robbery was not satisfied, and that robbery is not a crime of violence, Smith adds that the victim’s eyewitness testimony is insufficient to convict him. Smith is wrong on this point. We also note that there were multiple persons who testified to seeing Smith with a gun drawn chasing the victim. They also testified to Smith’s efforts to dispose of the gun as police approached. Additionally, evidence of the subject gun was introduced, along with evidence of compatible cartridges found in his vehicle. Finally, the record reveals that police found the victim’s opened backpack in Smith’s car. While Smith proffered witnesses to provide an alibi, their credibility was impugned. We therefore find that a jury could reasonably convict Smith of First Degree Robbery on this evidence.
Smith next raises the issue of ineffective assistance of counsel. We take no position on Smith’s claim as we generally do not review such Sixth Amendment claims on direct appeal. United States v. Olfano, 503 F.3d 240, 246 (3d Cir.2007). The record here is insufficient for us to determine that issue.
For all of these reasons, we will affirm the judgement of conviction and sentence on charges of Robbery in the First Degree, Possession of a Firearm during the Commission of a Crime of Violence (3 counts), Assault in the First Degree, and Assault in the Third Degree.
Finally, as the government acknowledged, Smith’s conviction on possession of ammunition, pursuant to 14 V.I.C. § 2256, is error. As there is no means of obtaining a license to possess ammunition, it is impossible for the government to substantiate the requisite proof of lack of authorization. See United States v. Daniel, 518 F.3d 205, 209 (3d Cir.2008). Therefore, we will vacate the conviction under 14 V.I.C. § 2256.
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OPINION
PER CURIAM.
Petitioner Xiao Min Chen, a citizen of China, entered the United States without inspection in 2006. He was placed in removal proceedings in 2007, during which he conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied relief and the BIA dismissed his appeal. Chen then filed a petition for review.
I.
In support of his application for relief, Chen testified that he and his mother began practicing Falun Gong in 2006 at the urging of his maternal uncle. They believed Falun Gong would help Chen’s mother, who suffered poor health following a forced sterilization procedure. Chen, his mother, and his uncle joined an underground Falun Gong group, led by Master Lin. Chen testified that they practiced in secret at Master Lin’s home; he did not allege that they practiced Falun Gong anyplace else.
Chen testified that he derived many benefits from practicing Falun Gong and wanted to help spread knowledge of the practice. Chen, who was the sole owner of an electronics store, testified that he agreed to illegally keep 3000 Falun Gong instructional videos in his store until fellow practitioners could distribute them. He alleged that in August 2006, while he was visiting a friend, police raided the store, confiscated the illegal videos, and sealed off the store. Chen’s maternal uncle witnessed the raid and called Chen on his mobile phone to alert him. Chen contacted his mother, who told him to go into hiding.
Chen testified that his father, who was minding the store while Chen was away, was arrested during the raid and interrogated for several hours. Chen testified that when the police realized that he, not his fathei-, was the sole owner of the store, they released the father and began looking for Chen. Police allegedly searched both of the family’s homes and questioned his mother. However, they found no evidence related to Falun Gong, and did not discover that his mother or uncle practiced Fa-lun Gong. Chen testified that since the incident, his mother and uncle still practice Falun Gong and have not been discovered by police.
Chen testified that he went into hiding and ultimately fled to the United States, where he continues to practice Falun Gong. He also testified that following the closure of his store, he instructed his mother to sell his remaining inventory, which she did, after which new people occupied the store and turned it into a fruit stand. However, Chen presented no documentation that the store was ever closed or that the inventory was sold. Nor did he produce any evidence that his store changed hands, although he testified that he could ask his parents to send pictures of the store. Moreover, although Chen submitted letters from his parents and maternal uncle in support of his application, they contained no information about the closing of his store, liquidation of the inventory, or conversion of the store.
The IJ denied relief, finding Chen to be incredible. The IJ also noted that Chen failed to present any corroborative evidence that his store was shut down and converted into another establishment. The BIA dismissed Chen’s appeal, uphold*187ing the IJ’s adverse credibility determination and corroboration analysis and reasoning that, even if Chen were credible, he still failed to demonstrate past persecution or a well-founded fear of future persecution.
II.
We have jurisdiction over Chen’s petition for review under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Because Chen is proceeding pro se, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Because we agree with the BIA that Chen unreasonably failed to corroborate his claim that Chinese officials raided and shut down his store, forcing the sale of his inventory, we need not address the Board’s other bases for denying relief. To qualify for asylum, an applicant must demonstrate that he has suffered past persecution or holds a well-founded fear of future persecution based on a protected ground. See 8 U.S.C. § 1101(a)(42)(A); Leia v. Ashcroft, 393 F.3d 427, 432-33 (3d Cir. 2005). “Moreover, an applicant for asylum must provide reliable evidence to corroborate testimony when it is reasonable to expect corroborating evidence and there is no satisfactoi’y explanation for its absence.” Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009) (citing Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006)). A failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)).
Here, the IJ noted that Chen presented no evidence to show that his store was closed, that the inventory had to be sold, or that his shop was turned into a grocery. Chen explained that receipts were not given for the items his parents sold and that there was no documentation that the police seized his store. Nevertheless, we agree that Chen could have obtained some corroborative evidence to present at the removal hearing. Indeed, he testified that he could have his parents send pictures of the converted store. In addition, the IJ noted that Chen’s supporting letters from his parents and uncle did not mention anything about having to close his store and sell the merchandise. We agree with the Agency that Chen’s explanation — that his parents did not discuss the store because they probably deemed it unimportant— was inadequate to overcome the need for corroboration.
Because Chen failed to provide adequate corroboration, we agree that he failed to demonstrate his eligibility for asylum. Specifically, Chen did not establish past persecution because he failed to provide sufficient corroborative evidence that Chinese officials raided his store and shut down his business because he stored Falun Gong videos. In light of his failure to present such evidence, we agree, too, that Chen did not demonstrate a well-founded fear that the Chinese government will take action against him for his alleged partic*188ipation in the distribution of Falun Gong videos.
Because Chen’s failure to corroborate rendered him ineligible for asylum, we also agree that he was unable to meet the higher standards applicable to applications for withholding of removal and CAT protection. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (withholding of removal); Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005) (CAT relief).
Accordingly, we will deny the petition for review. Chen’s motion to waive oral argument is denied as moot.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477101/
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OPINION
BARRY, Circuit Judge.
Plastipak Packaging, Inc. (“Plastipak”), a manufacturer of plastic containers, has been seeking payment since 1995 for plastic bottles it manufactured for Mac-Jam, Inc. d/b/a Regent Bottling Co. (“Mac-Jam”), a soft drink bottler.1 In February of 1999, Plastipak obtained a judgment against Mac-Jam. In an effort to collect on that judgment, Plastipak filed an action against Mac-Jam’s sole shareholder, Frederick P. DePasquale (“Mr. DePasquale,” together with his non-party wife, the “De-Pasquales”), and won a $767,393.62 judgment against Mr. DePasquale in 2001.2 Plastipak now seeks to satisfy the judgment by executing on certain moneys (the “Moneys”) which the DePasquales recently transferred from their joint bank account (the “Bank Account”) to a life insurance policy (the “Policy”) owned by Mr. De-Pasquale for the benefit of his wife.
The first issue on appeal is whether the District Court erred in refusing to permit Plastipak to execute on the Policy, which is protected from Mr. DePasquale’s creditors by Pennsylvania’s exemption statute, 42 Pa. Cons.Stat. § 8124.3 The second issue is whether the Court abused its discretion in refusing to allow additional discovery, i.e., refusing to allow Plastipak to depose the DePasquales in hopes of finding evidence that the DePasquales, albeit inexplicably, intended to terminate their tenancy by the entireties in the Moneys in the Bank Account prior to transferring the Moneys to the Policy (and thereby exposing Mr. DePasquale to liability for fraudulent transfer).4
I. Jurisdiction & Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have juris*190diction under 28 U.S.C. § 1291. We review the factual findings of the District Court for clear error; the legal conclusions are subject to plenary review. Del. River & Bay Auth. v. Kopacz, 584 F.3d 622, 626 n. 5 (3d Cir.2009). “A district court’s denial of discovery is reviewed for abuse of discretion.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 235 (3d Cir.2007).
II. Discussion
Plastipak is asking for essentially the same equitable relief which we already considered and denied in Plastipak’s first appeal before us, in this very same action, in 2003. See Plastipak Packaging, Inc. v. DePasquale, 75 Fed.Appx. 86 (3d Cir. 2003).5 In its first appeal before us, Plast-ipak argued for access to certain funds in the same Policy on equitable grounds, in the form of the “judicial estoppel” remedy. We rejected Plastipak’s arguments because, despite the allegations of fraudulent transfer, judicial estoppel “would punish the interests of an innocent third party, DePasquale’s wife,” who was the Policy’s beneficiary. Id. at 94 n. 9 (citing Montrose Med. Group Participating Savs. Plan v. Bulger, 243 F.3d 773, 778 (3d Cir.2001) (we incorrectly cited to page 777)).
A. Execution on the Policy
Plastipak now argues that the Moneys in the Policy can be reached via another equitable remedy: a constructive trust. However, our consideration of whether to impose a constructive trust requires that we balance the same equities that we considered in Plastipak’s earlier request for judicial estoppel. See Janus Mgmt. Servs., Inc. v. Schlessinger, 810 A.2d 637, 642 (Pa.Super.2002). It is, to say the least, disturbing that the parties have not even mentioned this in their briefs.
The equitable factors weighing against allowing Plastipak to reach the funds in the Policy have not changed. Mrs. DePasquale remains the beneficiary of the Policy. Mr. DePasquale is accused now, as before, of misusing the Policy to hide assets. Regardless of whether our earlier ruling is relevant under equitable or judicial estoppel or as the law of the case, it is appropriate to affirm.6 The DePasquales’ intentions, vis-a-vis whether the Moneys in the Bank Account were held in a tenancy by the entireties, are irrelevant because the Moneys are now safely in the Policy.
Moreover, as we explained in the prior appeal, the Policy is also protected by law. The plain language of the Pennsylvania exemption statute, 42 Pa.C.S. § 8124, makes clear that, regardless of the subjective intent of Mr. DePasquale when he took out the Policy, the funds are safe from his creditors.7 Plastipak has offered neither arguments nor any case that even *191suggests that Pennsylvania law allows creditors to access otherwise-protected assets on proof of the debtor’s subjective intent.
In any event, the factual findings of the District Court are not clearly erroneous. The record supports the Court’s finding that there is not clear and convincing evidence that the DePasquales intended to sever the tenancy by the entireties with respect to the Moneys. See Johnson v. Johnson, 908 A.2d 290, 296 (Pa.Super.2006) (noting that Pennsylvania law creates a rebuttable presumption that property is held in tenancy by the entire-ties, which may be overcome by clear and convincing evidence). The Court found that the Moneys were so-held until the moment they were transferred to the Policy. The Moneys were never accessible to Plastipak and were never in Mr. DePasq-uale’s individual control, and so could not have been fraudulently transferred.8
B. The Discovery Issue
The District Court did not abuse its discretion in refusing to allow additional discovery, and, in particular, the depositions of the DePasquales. Plastipak argues that it is entitled to an opportunity to depose the DePasquales in order to confirm its theory that, at some point, the DePasquales decided to sever their tenancy by the entireties of certain funds in the Bank Account, thereby rendering those funds vulnerable to attachment. If the DePasquales transferred the Moneys while the Moneys were held in tenancy by the entireties, the DePasquales are not subject to liability for fraudulent transfer. See C.I.T. Corp., 5 A.2d at 129. On the other, hand, if the tenancy by the entireties was severed before the Moneys were transferred to the Policy, then Mr. DePasquale alone transferred the Moneys to the Policy and Mr. DePasquale could be liable for fraudulent transfer.
The District Court denied the discovery request as untimely and because, “given the litigious history of these parties, it is unlikely that further discovery, briefing and an evidentiary hearing would be consistent with the just, speedy, and inexpensive determination of this action.” Plastipak Packaging, Inc. v. DePasquale, *192No. 99-cv-245, 2009 WL 186139, at *2 (W.D.Pa. Jan.27, 2009).9 It appears that the Court may have been incorrect in concluding that Plastipak’s requests were untimely, but the Court surely did not err, much less abuse its discretion, in refusing to allow additional discovery.
First, we discourage “fishing expeditions.” See Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir.2006). Plastipak’s proposal to depose the DePasq-uales in hopes that it will find a legal theory by which it could attach Mr. De-Pasquale’s assets bears all the hallmarks of a fishing expedition, particularly given that there is no evidence that the DePasq-uales intended to sever their tenancy by the entireties. Indeed, we have no more reason than did the District Court to believe that the DePasquales intended to do so.10 Plastipak’s argument that Mr. De-Pasquale evinced his intent to sever by writing a check to the Policy is unavailing. Plastipak offers no support for the proposition that an intention to separate property in the future severs the tenancy in the present. Moreover, Pennsylvania law is clear that both parties — not just one— must intend to sever a tenancy by the entireties. Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986).
Finally, Plastipak argues that if the De-Pasquales severed their tenancy by the entireties, then Mr. DePasquale could be liable for fraudulent transfer under Pennsylvania’s fraudulent conveyances statute, 12 Pa. Cons.Stat. § 5104. However, Plast-ipak has failed to show how Mr. DePasq-uale’s alleged fraudulent transfer would change the fact that the Moneys are now safely out of reach, and that Plastipak has no remedy at law or, under the circumstances, in equity, by which it can reach the Moneys in the Policy. Plastipak’s repeated conclusory statements about how the case turns on the intent of the DePasq-uales are not persuasive.
III. Conclusion
We will affirm the order of the District Court.
. From the early 1980s until sometime in 1995, Mac-Jam and Plastipak had an ongoing business relationship in which Plastipak supplied Mac-Jam with plastic bottles. In December of 1995, Plastipak filed a lawsuit against Mac-Jam alleging breach of contract.
. The merits of the action before us, which were decided by a jury eight years ago, revolved around whether Mac-Jam was Mr. De-Pasquale's alter ego, and whether he had engaged in the fraudulent transfer of property under the Pennsylvania Uniform Fraudulent Transfer Act ("PUFTA"), 12 Pa. Cons.Stat. §§ 5105-5110. On December 7, 2001, a jury found that Mac-Jam was his alter-ego, and judgment was entered against him in the amount of $767,393.62. The jury found in his favor on the fraudulent transfer count.
. 42 Pa. Cons.Stat. § 8124(c) provides that:
Insurance proceeds.-The following property or other rights of the judgment debtor shall be exempt from attachment or execution on a judgment:
(6) The net amount payable under any annuity contract or policy of life insurance made for the benefit of or assigned to the spouse, children or dependent relative of the insured, whether or not the right to change the named beneficiary is reserved by or permitted to the insured. The preceding sentence shall not be applicable to the extent the judgment debtor is such spouse, child or other relative.
.The most important of several flaws in Plastipak’s theory (which it wishes to explore with further discovery) is that even if Mr. DePasquale fraudulently transferred the Moneys to the Policy, the Moneys are now safe and unreachable, and Plastipak seems to have no basis to recover them either in law or in equity.
. In that appeal, Mr. DePasquale appealed certain evidentiary and other rulings, and Plastipak cross-appealed the District Court's decision protecting certain funds held in the same Policy now at issue before us.
. Plastipak cites two factually dissimilar cases for the proposition that a constructive trust is appropriate here: Fidelity Trust Co. v. Union National Bank of Pittsburgh, 313 Pa. 467, 169 A. 209 (1933) and Nagle v. Nagle, 799 A.2d 812 (Pa.Super.2002). Those cases are simply inapplicable under the circumstances here, and we reject them without further discussion.
.Section 8124 specifically provides exceptions to other exemptions. 42 Pa.C.S. § 8124. For example, the exemption for certain retirement funds, under § 8124(b)(l)(ix), includes an exception for "[ajmounts deemed to be fraudulent conveyances.” 42 Pa.C.S. § 8124(b)( 1 )(ix). The insurance exemption applicable in the case before us, at § 8124(c), contains no such exception. 42 Pa.C.S. § 8124.
. The issue is rarely discussed (the leading case was decided in 1939). See C.I.T. Corp. v. Flint, 333 Pa. 350, 5 A.2d 126, 129 (1939) (creditors could not challenge a transaction which spouses engaged in for the admitted purpose of preventing husband from becoming the owner by survivorship). In any event, as a matter of logic, it is unlikely that the DePasquales could reasonably be accused of trying to hinder creditors by transferring the Moneys from one protected asset (the Bank Account, held in a tenancy by the entireties) to another (the Policy). Addressing this issue, Plastipak offers only the conclusory statement that, even if the Moneys were held in a tenancy by the entireties prior to being transferred to the Policy, there was still a fraudulent transfer because the Bank Account "had been deemed to be subject to execution.” (Plastipak Br. at 29.) Plastipak cites no cases in support of this proposition, and, regardless, to say that the Bank Account had been "deemed to be subject to execution” is misleading. (Id.) In 2004, a Pennsylvania trial court refused to sustain objections to a writ of execution on certain funds held in the Bank Account which the court found were not held in a tenancy by the entireties. See Plastipak Packaging, Inc. v. DePasquale, GD No. 03-19032 (Ct. Com. PL, Allegheny County, Civ. Div. August 3, 2004). However, another Pennsylvania trial court later held that the Bank Account was not subject to execution vis-á-vis certain funds awarded to the DePasquales in a separate lawsuit because those funds were awarded to the DePasquales jointly. See Plastipak Packaging, Inc. v. DePasquale, GD No. 03-19032 (Ct. Com. PL, Allegheny County, Civ. Div. Nov. 30, 2006). Similarly, the Moneys at issue here, which were awarded to the DePasquales jointly after an arbitration proceeding, were never subject to execution when they were on deposit in the Bank Account.
. Plastipak argues that "the [District [C]ourt denied Plastipak's discovery requests only because they were supposedly untimely.” (Plastipak Br. at 23). We disagree.
. As the District Court explained, in its opinion denying Plastipak’s motion for reconsideration:
[T]here was no basis to conclude that Mrs. DePasquale ever acted to sever the entire-ties ownership. The proceeds at issue .were: (1) in the form of a check made out to Mrs. DePasquale; (2) deposited into a joint checking account; and (3) sent to Penn Mutual to restore the value of Mrs. DePasquale's interest as a death beneficiary. Plastipak’s argument that these proceeds somehow became the sole property of Mr. DePasquale borders on the frivolous. The Court adheres to the analysis in the January 29 Order.
Plastipak Packaging, Inc. v. DePasquale, No. 99-cv-245, 2009 WL 501888, at *2 (W.D.Pa. February 27, 2009).
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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/8477103/
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OPINION
AMBRO, Circuit Judge.
In July 2006, Thomas Reyes attempted to rob a grocery store in Philadelphia. A *194jury convicted him of various crimes relating to this incident. Reyes appeals, challenging only his conviction for attempted interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) (the “Hobbs Act”). In particular, he challenges his conviction on three grounds: 1) the insufficiency of the Government’s evidence to sustain his Hobbs Act conviction; 2) the unconstitutionality of the Hobbs Act as applied to his conduct; and 3) deficiencies in the indictment and jury charge.
We reject each of these challenges, and therefore afirnn.
I.
The Gomez Grocery is located in the Germantown section of Philadelphia. The store is open to out-of-state customers, and much of its inventory is delivered from other states (including New Jersey, North Carolina, and Virginia). The store also has an ATM machine on premises. On July 16, 2006, Reyes attempted to rob the store with a loaded, 9 mm. semiautomatic pistol.
Around noon, Reyes entered the store. He was wearing gloves and glasses, as well as a bandana that covered his face. Reyes locked the front door, drew his pistol, and announced that it was a “stick up.” From there, he ordered customers and employees to drop to the floor. When Reyes leapt on the counter to reach the register, the store manager and an employee attempted to stop him. Reyes fired his gun several times during the struggle. He was ultimately subdued and arrested.
During the incident, various items were knocked from the shelves. In the end, the grocery store closed for the remainder of the workday — approximately eight hours.
II.
In November 2006, a grand jury returned a three-count indictment against Reyes, charging him with one count each of: 1) Hobbs Act robbery; 2) carrying and using a firearm during and in relation to a crime of violence (in violation of 18 U.S.C. § 924(c)(1)); and 3) possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). Reyes’s jury trial began in August 2007. At trial, he did not object to the indictment, the trial court’s jury instructions, or the constitutionality of the Hobbs Act. Following a three-day trial, Reyes was convicted on all counts.
The District Court sentenced Reyes to 180 months’ imprisonment, five years of supervised release, a $1,000 fine, and a special assessment of $300. Reyes timely appealed.1
III.
In this appeal, Reyes challenges only his Hobbs Act robbery conviction. In the end, we reject each of Reyes’s arguments seeking to overturn that conviction.
A.
First, Reyes challenges the sufficiency of the Government’s evidence to convict him of Hobbs Act robbery. “In reviewing a challenge to the sufficiency of the evidence, we ‘must determine whether, viewing the evidence most favorably to the [Government, there is substantial evidence to support the jury’s guilty verdict.’ ” United States v. Urban, 404 F.3d 754, 762 (3d Cir.2005) (quoting United States v. Idowu, 157 F.3d 265, 268 (3d Cir.1998)). “We ‘will sustain the verdict if *195any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, a claim of insufficiency of the evidence places a very heavy burden on an appellant.’” Id. at 762-63 (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)) (internal quotation marks omitted).
The Hobbs Act applies to any robbery attempt that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” 18 U.S.C. § 1951(a). “To sustain a conviction for interference with commerce by robbery under § 1951, the [Government must prove the element of interference with interstate or foreign commerce by robbery.” United States v. Haywood, 363 F.3d 200, 209 (3d Cir.2004).
Reyes argues that Hobbs Act robbery requires a specific intent to affect interstate commerce, and that the Government failed to prove such a specific intent beyond a reasonable doubt. We disagree. It is well-established that a specific intent to affect interstate commerce is not an element of Hobbs Act robbery. Indeed, “[i]t is not necessary that the purpose [of the conduct was] to affect interstate commerce.” United States v. Addonizio, 451 F.2d 49, 77 (3d Cir.1972) (emphasis in original). Instead, the Government must prove only that “one of the natural effects [of the conduct was] an obstruction of that commerce.” Id. (emphasis in original). Accordingly, Reyes’s argument fails.
Reyes argues in the alternative that the trial evidence was insufficient to prove an effect on interstate commerce beyond a reasonable doubt. However, under the Hobbs Act the Government need not prove an actual effect on interstate commerce. Instead, it must only prove that the underlying robbery “potentially caused an effect on interstate commerce to any degree, however minimal or slight.” Urban, 404 F.3d at 762; see also Haywood, 363 F.3d at 211 n. 7; United States v. Clausen, 328 F.3d 708, 710-11 (3d Cir.2003). Furthermore, a “ ‘jury may infer that interstate commerce was affected to some minimal degree from a showing that the business assets were depleted.’ ” Haywood, 363 F.3d at 210 (quoting United States v. Zeigler, 19 F.3d 486, 493 (10th Cir.1994)); see also Urban, 404 F.3d at 767 (“[I]t is beyond cavil that the depletion of assets of a person engaged in interstate commerce has at least a ‘potential’ effect on that person’s engagement in interstate commerce.”).
At trial, the Government presented evidence that the grocery store imported portions of its inventory from other states, and was forced to close for approximately eight hours as a result of the robbery. During this period, the store could not receive goods from out-of-state vendors, sell its goods that had been delivered across state lines, or permit customers to use its ATM machine. Furthermore, the robbery itself was intended to steal money from the grocery store, which would have depleted its available assets and limited its ability to engage in interstate transactions.
Because the Government was required to prove only a minimal, potential effect on interstate commerce, we hold that it provided sufficient evidence to sustain Reyes’s conviction under the Hobbs Act.
B.
Reyes next argues that the Hobbs Act is unconstitutional “as applied” to his conduct. For support, he cites United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), where the Supreme Court held that a federal statute prohibiting the possession of a firearm in a school zone was unconstitutional. In Lopez, the Court identified three categories of activity *196that may be regulated under the Commerce Clause: 1) use of the channels of interstate commerce; 2) the instrumentalities of interstate commerce; and 3) activities that “substantially affect” intei’state commerce. In challenging the constitutionality of the Hobbs Act, Reyes argues that “[r]obbery is not a commercial activity. Robbery is a crime.” Appellant’s Br. 23. Therefore, Reyes adds, our requirement of only a minimal effect on interstate commerce cannot be squared with Lopez. He is mistaken.
Because Reyes did not raise this argument before the District Court, we review it only for plain error. See United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir. 2002). In any event, our Court has previously rejected similar challenges to the Hobbs Act under Lopez. See Urban, 404 F.3d at 766 (“[W]e have already rejected the argument that Lopez and its progeny require proof of a ‘substantial effect’ on commerce in an individual case in order to show a Hobbs Act violation.”). Furthermore, “[e]ven after Lopez, every Court of Appeals to have addressed the issue has held that the Hobbs Act may constitutionally be applied to crimes which do not have a substantial effect on interstate commerce.” Clausen, 328 F.3d at 710.
In Clausen, the defendants “argue[d] that the Hobbs Act [wa]s unconstitutional as applied to a broad category of cases, including this one, in which the effect of any given robbery on interstate commerce was minimal.” Id. at 710. We rejected this argument, concluding that the Hobbs Act “regulate[d] activity which occurred] locally but which ha[d] an explicit nexus with interstate commerce.” Id. at 711. We added that this rendered it “distinguishable from the statute[] at issue in Lopez,” and therefore “the District Court did not err when it instructed the jury that it need only find that each robbery had a minimal effect on interstate commerce.” Id.
Reyes’s constitutional challenge is virtually indistinguishable from the challenge we rejected in Clausen. As a result, Reyes cannot establish error under our precedent, let alone plain error.
C.
Finally, Reyes argues that: 1) portions of the indictment and jury charge can be read to suggest that a specific intent to affect interstate commerce was a required element; and, accordingly, 2) the later portion of the jury charge — in which the District Court instructed the jury that it did not have to find that Reyes intended to affect interstate commerce — both caused the verdict to be “at variance” with the indictment, and resulted in “confusing” and “inconsistent” instructions. We review these claims only for plain error because Reyes failed to raise them before the District Court. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001). In any event, Reyes is mistaken.
The indictment charged him as follows: Thomas Reyes attempted to obstruct, delay[,] and affect commerce and the movement of articles and commodities in commerce, by robbery, [by] unlawfully attempting] to take and obtain cash from the Gomez Grocery located at 82 East Walnut Lane, Philadelphia, Pennsylvania in the presence of employees of the Gomez Grocery and against their will, by means of actual and threatened force, violence, and fear of injury, immediate and future, to the employees of the Gomez Grocery, that is, by brandishing and discharging a gun, demanding money, and threatening employees of the Gomez Grocery.
The indictment further alleged that “the Gomez Grocery was engaged in and affect*197ing interstate commerce, providing food and drink, or goods and services, which were produced and transported from other states to Pennsylvania, to residents of the Commonwealth of Pennsylvania and out-of-state residents.” Therefore, the indictment properly charged Reyes with Hobbs Act robbery.
Furthermore, the charge to the jury accurately stated the law and was not inconsistent with the indictment. In relevant part, the Court instructed the jury as follows:
The defendant need not have intended or anticipated an effect on interstate commerce. You may find the effect as a natural consequence of his actions. If you find that the defendant intended to take certain actions, that is, he did the acts charged in the indictment in order to obtain property, and you find those actions have either caused or would probably cause an effect on interstate commerce no matter how minimal, then you may find the requirements of this element satisfied.
Reyes does not offer any passages that persuade us that a reasonable trier of fact would be confused by any alleged inconsistencies in the indictment and the jury instructions. Both the indictment and the jury instructions present the relevant law accurately and, read together, are consistent.
In order to prevail, a defendant must prove that there was “a ‘variance’ between the indictment and the proof at trial, to the prejudice of the defendant’s substantial rights.” United States v. Barr, 963 F.2d 641, 648 (3d Cir.1992). We have recognized a “variance” only in situations where the evidence at trial proves facts other than those alleged in the indictment. Id. Reyes has failed to establish either a variance or prejudice.
As noted above, the Government offered evidence that many of the items sold in the Gomez Grocery were purchased from other states. As a result of the attempted robbery, the store closed down for eight hours, which kept it from receiving out-of-state goods or allowing its customers to use its ATM machine. Furthermore, had Reyes successfully completed the robbery, he would have stolen money from the Gomez Grocery, therefore depleting assets that would have been available to engage in interstate transactions. This evidence all supports a conviction for Hobbs Act robbery — the relevant crime charged in the indictment. Furthermore, nothing in the indictment or jury instructions suggests any confusion about the underlying offense or the elements that had to be proven at trial — including specific intent. * * * * * *
For these reasons, we reject each of Reyes’s challenges, and affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
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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/8477105/
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OPINION
BARRY, Circuit Judge.
Appellant Lawrence Otter appeals an order holding him in civil contempt for failing to pay attorneys’ fees and certain costs previously imposed as a sanction by the District Court. We will vacate in part the order of the District Court and remand for further proceedings consistent with this Opinion.
BACKGROUND1
This appeal emanates from a 2008 ERISA action in which various plaintiffs— represented by Otter — sued Independence Blue Cross (“IBC”), the Commonwealth of Pennsylvania’s Departments of Health and *199Insurance (“the Commonwealth”), and other defendants not relevant to this proceeding. IBC and the Commonwealth each filed motions to dismiss the complaint, with IBC also filing a motion for sanctions, including attorneys’ fees and costs, pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. Thereafter, the Commonwealth also filed a motion for attorneys’ fees pursuant to 28 U.S.C. § 1927.2 The substance of the motions to dismiss, as the Commonwealth summarizes it, was that “the claims that plaintiffs were trying to raise ... had been raised before, in proceedings involving several of the same parties (and counsel) now before the district court, and every court to have considered these claims had rejected them.” (Commonwealth’s Br. at 6.) On April 25, 2008, the District Court granted the motions to dismiss.
On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions.3 The Court concluded that “[a]t the time Mr. Otter filed the Complaint on behalf of his clients, he had been informed four times previously his claim had no basis in fact or law. Yet, he unreasonably brought the same claim without any additional law or evidence to support.” (July 28, 2008 Sanctions Order at 12-13.) Noting that “it is difficult to imagine a better example of frivolous, vexatious, and unreasonable multiplicity of proceedings or the continued pursuit of a baseless claim in the face of several irrebuttable defenses,” the Court determined that sanctions were appropriate. (Id. at 11.) The Court found that Otter “did not challenge the amount of the fees and costs claimed,” and held that the “little mitigating evidence” put forth was insufficient to reduce the “unopposed lodestar calculations” under the factors articulated in Doering v. Union County Board of Chosen Freeholders, 857 F.2d 191 (3d Cir.1988).4 (Id. at 16.) The Court ordered payment of sanctions within thirty days of the Order. Otter did not appeal.
Neither the Commonwealth nor IBC received payment within the thirty day period prescribed by the District Court, and so, in November 2008, they filed motions to hold Otter in civil contempt. The Court held a hearing on March 5, 2009. Otter did not submit a response to the motions; rather, on the date of the hearing, attorney Frank Marcone filed — on Otter’s behalf — a motion to vacate the sanctions order of July 28, 2008. Marcone appeared at the hearing to represent Otter. Marcone, however, was then serving a two-year suspension and the Court found that because he had never entered an appearance on behalf of Otter, his representation of Otter would not fall within the provision of the suspension order permitting him to “wind up” his practice. The Court denied Otter’s *200request for a continuance, and denied as untimely his motion to vacate the July 28, 2008 order imposing sanctions.
The hearing on the motions for contempt went forward. Claiming that he lacked the financial resources to pay the sanctions that had been imposed, Otter submitted his 2008 income tax return, and informed the District Court that his law practice had grossed under $1,000 since the beginning of 2009 and that he had “received notices” that he was behind on his electric and phone bills. He stated that his “non-compliance has not been will-full,” and that although he would have liked to comply with the sanctions order, he “simply [did] not have the funds to do that.” (March 5, 2009 Hearing at 20, 21.) The Court then addressed the Commonwealth and IBC: “What do you want me to do? You can’t get blood from a stone, and the argument he’s making is that he doesn’t have the capacity to comply, so it’s not a willful disobeyance of my order.” (Id. at 23.)
Following the hearing, the District Court issued a written order holding Otter in contempt of the July 28, 2008 order imposing sanctions and entering judgment on that order.5 The March 5, 2009 order did not make a finding as to Otter’s ability to pay those sanctions. Otter appealed.
DISCUSSION
Otter argues that he should not have been held in contempt because his disobedience of the District Court’s order instructing him to pay to attorneys’ fees was not willful but, rather, was a result of his being in “desperate straits” financially.6 (Appellant’s Br. at 6, 9.)
We review an order holding a party in contempt for abuse of discretion, and will reverse only where the decision “is based on an error of law or a finding of fact that is clearly erroneous.” Marshak v. Treadwell, 595 F.3d 478, 487 (3d Cir.2009) (quoting Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.1995)); see Harris v. City of Phila., 47 F.3d 1311, 1321 (3d Cir.1995). In order for a party to be held in civil contempt,7 three elements must be established by clear and convincing evidence: “(1) that a valid order of the court existed; (2) that the defendant had knowledge of the order; and (3) that the defendant disobeyed the order.” Berne Corp. v. Gov’t of the V.I., 570 F.3d 130, 139 (3d Cir.2009) (citation omitted). To the extent there are ambiguities in the evidence, they “must be resolved in favor of the party charged with contempt.” John T. v. Del. County Intermediate Unit, 318 F.3d 545, 552 (3d Cir. 2003). Because “willfulness is not a necessary element of civil contempt ..., [any evidence of defendant’s] good faith does not bar the conclusion ... that [the defendant] acted in contempt.” Robin Woods Inc. v. Woods, 28 F.3d 396, 399 (3d Cir. 1994) (quoting Harley-Davidson, Inc. v. *201Morris, 19 F.3d 142, 148^9 (3d Cir.1994)). The Supreme Court has explained, however, that in “a civil contempt proceeding ... a defendant may assert a present inability to comply with the order in question”. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). Similarly, we have recently made clear that “an order of civil contempt [is or will become] punitive if a contemnor is unable to comply with the order.” United States v. Harris, 582 F.3d 512, 520 (3d Cir.2009). While the party raising the impossibility defense has the burden of proving it, courts “will not be blind to evidence that compliance is now factually impossible.” Rylander, 460 U.S. at 757, 103 S.Ct. 1548.
Otter does not argue that he did not violate a known court order imposing sanctions; rather, the thrust of his argument is that the District Court “disregarded the financial evidence presented at the contempt proceeding,” which he claims demonstrates his inability to pay the ordered amount. (Appellant’s Br. at 7.) At the contempt hearing, Otter presented the Court with his 2008 tax return while explaining, “I tried to comply with the Court’s order, but I simply do not have the funds to do that.” (March 5, 2009 Hearing at 20.) He informed the Court that although he might eventually be able to make some payments if he was successful in his representation of various clients in pending matters, “$40,000 would just bankrupt [him].” (Id. at 27.) Despite recognizing Otter’s precarious financial state at the hearing when it observed that “[y]ou can’t get blood from a stone,” the Court made no findings orally or in its written order as to whether Otter was then unable to comply with the order or would be unable to do so in the foreseeable future and, if so, whether an order of civil contempt would be punitive. This was an abuse of discretion.
CONCLUSION
We will vacate the March 5, 2009 order of the District Court insofar as it holds Otter in civil contempt, and will remand this matter for further proceedings consistent with this Opinion.
. Oiler has filed an appendix without continuous pagination. Accordingly, we cite not to the appendix, but to the relevant documents.
. At the April 2008 hearing on the motions to dismiss, “the court — clearly leaning toward granting the motions to dismiss — directed the Commonwealth agencies to file a motion for attorneys' fees too.” (Commonwealth's Br. at 7-8.) The Commonwealth sought $6,352.50, and IBC sought $35,436.91 in fees and costs. Otter does not now — nor did he before the District Court — oppose these calculations. (July 28, 2008 Sanctions Order at 16.)
. With respect to IBC's motion, sanctions were ordered against Otter and three other parties; however, the Commonwealth’s sanctions motion was directed only at Otter.
.In Doering, we explained that a district court should consider a variety of “equitable considerations” both when deciding whether to impose sanctions and when determining the appropriate amount of those sanctions. 857 F.2d at 197. We listed “[o]ther mitigating factors which a district court may consider in the context of Rule 11” such as, for example, "the attorney's history of filing frivolous actions ..., the defendant's need for compensation, the degree of frivolousness,” and the willfulness of the offender’s actions. Id. at n. 6 (internal citations omitted).
. The March 5, 2009 order also entered judgment in favor of IBC against the other plaintiffs in the initial litigation. Those parties are not involved in this appeal.
. Otter also argues, without citing any supporting case law, that by preventing Mar-cone — a suspended attorney — from representing him at his contempt hearing, the Court "denied Otter his right to counsel ... in violation of his Sixth Amendment rights." (Appellant's Br. at 8.) As this was not a criminal proceeding, the Sixth Amendment was not implicated. See Fadiga v. Att'y Gen., 488 F.3d 142, 157 n. 23 (3d Cir.2007) ("As a matter of formal constitutional doctrine, the Sixth Amendment right to (effective) counsel does not apply in a civil context.").
.Otter does not dispute Appellees' characterization of the contempt order as "civil." Where, as here, a party “fail[s] to comply with a valid court order," civil contempt is imposed. United States v. Harris, 582 F.3d 512, 514 (3d Cir.2009).
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OPINION
PER CURIAM.
Yakov Rokhvarg appeals from an order of the District Court granting the Defendants’ motion to dismiss his complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1). We will affirm.
I.
In Rokhvarg’s complaint he alleged that the Defendants, two local public officials, conspired to ignore the deterioration of an apartment complex owned and managed by Rokhvarg, thereby jeopardizing the health and safety of the tenants in that complex. Rokhvarg requested the following relief: 1) that the Defendants be ordered to immediately relocate the tenants; 2) compensatory damages in the amount of $258,000 for the “intentional physical destruction” of the complex “as a result of the conspiracy”; 3) compensatory damages in the amount of $50,000 for each tenant “for playing ‘Russian Roulette’ (A game of probability) with the tenants lives”; and 4) counsel fees1 and costs.
Defendants moved to dismiss Rokh-varg’s complaint, alternatively pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted the motion, finding that even drawing all reasonable inferences in Rokhvarg’s favor, “the Complaint raises no federal grounds upon which relief may be granted.” The District Court declined to give Rokhvarg leave to amend his complaint, determining that any amendment would be futile. The District Court concluded that because it was dismissing Rokhvarg’s complaint, his “Order to Show Cause with Emergency Safety Relief’ was also denied. Rokhvarg appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008). We re*203view de novo the District Court’s grant of a Rule 12(b)(1) motion. See Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir. 2009). We review for abuse of discretion the District Court’s decision to deny Rokh-varg leave to amend his complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002).
III.
We find no error by the District Court in the proceedings below. The jurisdiction of federal district courts is limited: it only can be exercised over civil actions that arise under federal law (i.e., federal question jurisdiction), or those that arise between citizens of different states where the matter in controversy exceeds $75,000 (i.e., diversity jurisdiction). See 28 U.S.C. §§ 1331 and 1332(a). For purposes of federal question jurisdiction, a claim arises under federal law if it is apparent from the face of the complaint that the cause of action was created by federal law. See Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166, 171 (3d Cir.1997). For diversity jurisdiction, a complainant must plead that he is a citizen of a particular state and that the defendants are citizens of a different state. See Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir.2003).
The District Court clearly lacked diversity jurisdiction over the parties, all of whom are citizens of New Jersey. In addition, the District Court correctly determined that Rokhvarg’s complaint did not advance a cognizable claim under federal law, thus precluding the District Court from exercising federal question jurisdiction. As a result, it was proper for the District Court to grant the Defendants’ motion to dismiss the complaint for lack of subject matter juiisdiction. Rokhvarg’s contention on appeal that the Defendants should be prosecuted for violations of 18 U.S.C. § 241 (criminalizing conspiracy to impede the exercise of federal rights) is not a cognizable federal claim in a civil suit, cf. United States v. Philadelphia, 644 F.2d 187, 199 (3d Cir.1980), and it does not demonstrate that the jurisdictional defects in Rokhvarg’s complaint can be ameliorated. Therefore, the District Court did not abuse its discretion when it declined to give Rokhvarg leave to amend his complaint.
Accordingly, we will affirm the District Court’s order. Rokhvarg’s motions are denied.
. Rokhvarg has proceeded with this case pro se from its inception.
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OPINION
PER CURIAM.
Appellant Jenny L. Merichko appeals from the order of the United States District Court for the Western District of Pennsylvania granting summary judgment in favor of the Commissioner of Social Security (“Commissioner”) and denying Merichko’s motion for summary judgment. The District Court’s order effectively affirmed the Administrative Law Judge’s (“ALJ”) denial of Merichko’s application for Social Security Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The District Court determined that there was substantial evidence to support the ALJ’s decision. We will affirm.
I.
Merichko was fifty-five years old at the time of the ALJ’s decision. She is a high school graduate, attended college for approximately one and one-half years, and has work experience as a server. She *205claimed that she became disabled in March 1996, following an automobile accident in which she injured her neck and back. In February 2005, she applied for DIB and SSI alleging disability due to fibromyalgia and cervical and thoracic strains.
After Merichko’s application was denied by the state agency, an ALJ held a hearing on her claim in April 2007, during which Merichko and a vocational expert testified regarding her condition. In June 2007, the ALJ issued a decision finding that Merichko was not disabled and that she could perform a range of medium work. The Appeals Council denied Mer-ichko’s request to review the ALJ’s decision, making that decision the final decision of the Commissioner.
In May 2008, Merichko filed an action in the District Court seeking review of the Commissioner’s decision denying her claim for DIB and SSL As noted, the parties filed cross motions for summary judgment, and, in April 2009 opinion, the District Court granted summary judgment in favor of the Commissioner. Merichko filed a timely appeal.
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
Upon review of the record, we find that the District Court properly granted the Commissioner’s motion for summary judgment. Where a litigant challenges a ruling of the ALJ denying a claim for DIB and SSI, judicial review is limited to determining whether there is substantial evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). If the ALJ’s findings of fact are supported by substantial evidence, such findings are binding. Knepp, 204 F.3d at 83.
Having reviewed the administrative record, we agree with the District Court’s conclusion that the ALJ’s decision is supported by substantial evidence. We note that Merichko did not identify to the District Court, nor to this Court, any specific errors in the ruling. Although Merichko was diagnosed with cervical and thoracic sprains as well as fibromyalgia, she reported improvement in her pain with both physical therapy and chiropractic treatment between 2001 and 2003. By July 2000, Merichko’s primary care physician noted that she had improved range of motion in her cervical spine, shoulders, and hips, and much less pain in her trigger *206points. By November 2002, her fibromyal-gia was stable and she reported that her cervical spasms were mild.
In addition, a physician who examined Merichko in April 2005, at the request of the state agency, found that her handgrip was optimal, her gait was normal, and that she had a normal range of motion in her shoulders, elbows, wrists, and lumbar spine.
At the administrative hearing, Merichko admitted that she took no prescription or over-the-counter medications to treat her pain, and that she saw her treating physician only once a year. She further testified that she uses public transportation regularly, does her own weekly grocery shopping and carries her own bags, and walks frequently. We therefore conclude that substantial evidence supports the ALJ’s ruling.
Accordingly, we will affirm the order of the District Court.
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OPINION
PER CURIAM.
Parul Patel, a native and citizen of India, entered the United States before 1992 as a child. After the Government charged her with removability in 2006, she sought asylum, withholding, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) sustained the charge of removability and denied the applications for relief from removal. Specifically, he ruled that the asylum application was untimely, and denied the other applications based on an adverse credibility finding and, assuming credible testimony, a failure to satisfy the pertinent standards for relief.
Patel appealed to the Board of Immigration Appeals (“BIA”). The BIA agreed that Patel was ineligible for asylum because of an untimely filing. The BIA reversed the adverse credibility finding but dismissed the appeal. The BIA held that Patel had not shown that she was entitled to withholding or CAT relief. Patel presents a petition for review.
First, we address the scope of our jurisdiction over her petition. Although Patel includes arguments relating to the timeliness of her asylum application and her entitlement to asylum relief, we do not have jurisdiction over that question. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006). To the extent that her petition relates to that question, we will dismiss it. However, we otherwise have jurisdiction over her petition for review under 8 U.S.C. § 1252.
Because the BIA issued a decision separate from the IJ, we review only the BIA’s ruling. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir. 2002). We review factual findings for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). On review, we conclude that the BIA did not err in denying Patel’s applications for relief.1
Patel and her husband were born in the same city in India, but to different circumstances. R. 139 (Patel describing Ahme-dabad as similar to New York City and her part of the town as the place where the housekeepers for the rich residents live). Although they were born into different castes, Patel and her husband met and married for love in the United States, against the wishes of Patel’s husband’s parents. Patel testified that her husband’s parents disapproved of her. For instance, when her husband’s mother came to visit before the wedding, she expressed her disappointment and acted as if her son could do better, R. 142, giving Patel a bad look and not responding to questions, R. 144. Patel also testified that she feared that her husbands’ parents, with whom she would be obliged to live in India, R. 142, would “torture” or mistreat her because of her *208caste and because her parents did not provide a dowry, R. 137, 139, 146. She also stated that she feared being kicked out of her in-laws’ house and having to fend for herself without knowing how to read or write Gujarati. R. 148-49.
Patel’s husband testified that his parents are not happy about his marriage, R. 170, but that they tolerated it, R. 164. He also stated that his parents would not accept Patel because she is from a lower caste, R. 172, and that she will be “out of society,” R. 173, yet not free to live elsewhere in India, R. 174. Her husband would not accompany her to India, R. 176, and he would not be able to change his parents’ behavior, R. 180. He speculated that his parents may beat his wife (because they used to beat him). R. 184.
Patel also put forth a claim of a pattern and practice of persecution against women in India. She recollected witnessing, as a child, her aunt being beaten by her husband while her aunt’s in-laws stood by unmoving. R. 134. She noted that her friend was mugged on a visit to India in 2005 and expressed a general fear of crimes and riots. R. 150. She also submitted articles about the treatment of women, including information about “dowry deaths,” the killing of a bride by a groom’s family for failure to pay a dowry. The 2006 Country Report on Human Rights Practices is also in the record (beginning at R. 374).
In India, Patel may be very uncomfortable living with her in-laws. In their community, she may face social ostracism. However, even her husband could not say that she would be tortured by his parents, who “tolerate” the marriage. Overall, Patel did not show a clear probability that she would be singled out for persecution on account of a protected ground. Nor did she prove her claim of a pattern or practice of persecution tolerated by the Indian government. According to the Country Report, domestic violence, including dowry deaths, remains a problem in India; however, new legislation addresses this serious issue. R. 400-01. Furthermore, Patel did not prove that it is more likely than not that she be tortured on her return to India.
For these reasons, the agency did not err in denying Patel’s withholding and CAT claims, see Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); cf. Wong v. Attorney Gen. of the United States, 539 F.3d 225, 233 (3d Cir.2008). Accordingly, to the extent that we have jurisdiction over her petition, we will deny it.
. Although the Government argues to the contrary, we do not agree that Patel waived a challenge to the BIA's decision on her CAT claim, and we will consider it.
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*158OPINION
PER CURIAM.
Kevin Young, a Pennsylvania state prisoner proceeding pro se, appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing his complaint. We will affirm.
Young filed a civil rights action in District Court against fifty defendants. The District Court dismissed Young’s complaint pursuant to 28 U.S.C. § 1915(e), explaining that the complaint was rambling and unclear and deprived the defendants of sufficient notice to respond to his claims. The District Court afforded Young 30 days to file an amended complaint, stating that he must set forth the specific events or conditions which violated his constitutional rights, the name and place of employment of each person who violated his constitutional rights, the dates on which his constitutional rights were violated, the harm he suffered, if any, from each violation, and the specific relief sought.
Young requested additional time to comply with the District Court’s order, and, on May 27, 2009, the District Court granted Young an additional days 30 to file an amended complaint.
Before the District Court entered its order, Young had filed a voluminous number of documents, which he appears to have intended to serve as his amended complaint or as exhibits to an amended complaint. In a memorandum dated June 24, 2009, the District Court noted that Young had submitted over 1,100 pages of material to the Court, which did not comply with the requirements for an amended complaint or with the District Court’s previous order. The District Court set forth the pleading requirements of Federal Rule of Civil Procedure 8(a) and informed Young that he should re-submit any documents he had sent to the court if he wished to incorporate them in his amended complaint. The District Court gave Young an additional 30 days to file an amended complaint, noting that the failure to do so might result in the dismissal of his case with prejudice. This appeal followed.1
We agree with the District Court that Young’s complaint fails to satisfy the pleading requirements of Rule 8(a). Young’s complaint advances claims of retaliation and denial of access to the courts against a number of defendants without alleging any supporting facts. He also asserts that other defendants are responsible for giving him an infection, that others provided unsafe work conditions, and that others took money from his prison account. Young has not provided the defendants with fair notice of his claims and/or the grounds upon which they rest. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court did not err in requiring Young to file an amended complaint in order to pursue his claims. In addition, the District Court correctly stated that Young’s submission of a multitude of documents in support of his complaint did not comply with its order to file an amended complaint.2
*159Because this appeal does not raise a substantial question, we will summarily affirm the District Court’s order.
. This appeal raises a question of appellate jurisdiction because the District Court's order was arguably not final for purposes of 28 U.S.C. § 1291. Young, however, elected to stand on his complaint by filing a notice of appeal in lieu of an amended complaint. The time for filing an amended complaint has now passed and we thus have jurisdiction to consider Young’s appeal pursuant to § 1291. Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n. 5 (3d Cir.1992).
. In his response to this Court's notice of possible summary action, Young states that he was transferred from Montgomery County Prison to work release, that he was stuck with a dirty needle while at work at a landfill, and that he contracted hepatitis. Young also *159complains about the conditions of his confinement at Montgomery County Prison, which he asserts included beatings by prison staff, a cell without running water, and deprivation of medical treatment and access to the law library. Because his complaint was dismissed without prejudice, Young may include these factual allegations in a new complaint if he decides to pursue his claims.
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OPINION
SMITH, Circuit Judge.
On June 30, 2006, Ronald Gallo began serving a three to twelve month term of imprisonment at the Washington County Correctional Facility in Washington County, Pennsylvania. The health care screening form noted that the day before his incarceration Gallo had been prescribed an antibiotic for an infected finger on his left hand, which had been incised and drained. The following day, an order was issued to continue the course of antibiotic therapy. A progress note dated July 3, 2006, indicated that the finger was “doing better” and that Gallo was to keep the wound clean and open.
In late August, Gallo complained of a “bite on his left elbow” and sought medical treatment. Warm compresses were prescribed. The following morning, Gallo was examined by a licensed practical nurse and a dressing was applied to the affected area, which was notable for the presence of a tan-colored drainage. A physician’s assistant assessed the area the following day, obtained a culture and sensitivity, incised and drained the wound, and prescribed an antibiotic. The culture revealed that Gallo had an infection caused by methicillin resistant staphylococcus au-reus (MRSA). As a result, Gallo’s antibiotic was changed to one that was effective against MRSA.
On September 19, Gallo requested a sick call because of pain in his left thigh and knee, which he attributed to playing basketball the previous week. Although this request was denied, a second request was granted on September 22. Physical examination revealed that Gallo had difficulty ambulating. He was transferred to the medical unit for observation, treated with over-the-counter analgesics, and directed to elevate his leg and to apply ice. Further evaluation on September 25 revealed no redness or swelling of the leg, or the presence of a fever. On September 27, a request was made for an evaluation by a physician, and Dr. Richard Aprea examined Gallo. He ordered an x-ray of the leg, crutches, ice to the affected area, and Ibuprofen, an anti-inflammatory agent. The x-ray showed no fracture or dislocation. On September 29, Gallo developed a fever. The medical staff contacted Dr. Aprea, who referred Gallo to the Washington Hospital Emergency Room for evaluation. Gallo was subsequently diagnosed with a MRSA infection in his left thigh affecting his muscles and his femur. Gallo required multiple surgeries and an extensive course of medical treatment.
On April 10, 2008, Gallo initiated a civil action, under 42 U.S.C. § 1983, against Washington County, Warden Joseph Pel-zer, and Nurse Cheryl McGavitt, alleging that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment to the United States Constitution. In addition, Gallo brought state law claims for medical malpractice against his *173treating physicians and a physician’s assistant. All defendants moved for summary judgment and the District Court granted their motions as to the federal claims. The Court held that while the evidence may have been sufficient to establish negligence, it was insufficient to establish the culpability required for a § 1983 action claiming deliberate indifference. The Court declined to exercise supplemental jurisdiction over the state law claims, and dismissed them.
This timely appeal followed.1 Gallo contends that the District Court erred in granting the motions for summary judgment against the prison defendants. We will affirm.
After a de novo review of the record, we conclude that the District Court properly granted summary judgment as to Gallo’s claim against Nurse McGavitt. Gallo contends that there were genuine issues of material fact as to whether Nurse McGavitt violated his constitutional rights by providing “inadequate medical care” following the positive MRSA culture and his persistent complaints of leg pain in September. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court instructed that “an inadvertent failure to provide adequate medical care” does not constitute deliberate indifference. Id. at 105, 97 S.Ct. 285. Thus, negligence in “treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106, 97 S.Ct. 285. Rather, in order to survive summary judgment, Gallo must demonstrate that Nurse McGavitt acted with a “conscious disregard” of his serious medical needs. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (citing Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); and Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). Yet the facts adduced by Gallo demonstrate that the prison medical staff, including Nurse McGavitt, was actively engaged in efforts to alleviate his pain, and to diagnose and to treat his condition. Accordingly, we will affirm the District Court’s grant of summary judgment on Gallo’s deliberate indifference claim against Nurse McGavitt.
Gallo contends that the District Court also erred in granting summary judgment in favor of Washington County and Warden Pelzer on his claim of municipal liability for deliberate indifference. He asserts that the evidence of record established actual knowledge of the threat of MRSA in the facility, and a failure by the facility to implement policies to address that threat. He also points to the existence of a policy that required inmates to sanitize their own cells, provided that the facility was not in lockdown, and claims that this policy placed the inmates directly at risk of infection.
Municipal liability, as Monell v. Department of Social Services teaches, hinges on whether a “government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,” causes the violation of a constitutional right. 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Supreme Court instructed that municipal liability
*174attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by [municipal] policymakers. Only where a failure to [act] reflects a “deliberate” or “conscious” choice by a municipality — a “policy” as defined by our prior cases — can a [municipality] be liable for such a failure under § 1983.
Id. at 389, 109 S.Ct. 1197 (citation omitted).
Thus, in the context of this case, the question is whether the evidence demonstrates that the correctional facility made a deliberate choice not to take reasonable steps to address a substantial risk of serious harm to an inmate. Id. at 390, 109 S.Ct. 1197; see Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (affirming that an inmate “states a cause of action under the Eighth Amendment by alleging that [prison officials] have, with deliberate indifference, exposed him to levels of [environmental tobacco smoke] that pose an unreasonable risk of serious damage to his future health”); Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (considering the showing needed for a deliberate indifference claim based on a failure to prevent harm to an inmate). Relevant to this inquiry is the extent to which the risk of harm was obvious and whether the failure to implement a policy or policies to address that harm was likely to result in the violation of Gallo’s constitutional right. Hams, 489 U.S. at 390, and 396-97, 109 S.Ct. 1197 (O’Connor, J., concurring) (observing that whether policymakers had notice that a particular omission was substantially certain to result in a constitutional violation will inform the deliberate indifference analysis). Furthermore, because Gallo’s claim asserts a violation of the Eighth Amendment, he must establish both that the prison officials were “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that they] ... dr[ew] the inference.” Farmer, 511 U.S. at 837 and 841, 114 S.Ct. 1970 (instructing that the objective standard set forth in Hams “is not an appropriate test for determining the liability of prison officials under the Eighth Amendment”). In other words, Gallo’s Eighth Amendment claim requires a “showing that the official was subjectively aware of the risk.” Id. at 829, 114 S.Ct. 1970.
Here, Gallo has not satisfied his burden of establishing facts sufficient to support his municipal liability claim. The evidence adduced is sufficient to establish actual knowledge by Warden Pelzer of the existence of MRSA and that a few inmates in the facility may have been infected with the pathogen, and constructive knowledge by Warden Pelzer that additional policies could have been implemented in an effort to decrease the risk of contracting MRSA in a correctional facility. But the evidence of record does not show that the officials of the Washington County Correctional Facility were subjectively aware that the policies in effect were so inadequate that they resulted in the inmates being exposed to a substantial risk of contracting infection by MRSA. Accordingly, we will affirm the District Court’s order granting summary judgment on Gallo’s municipal liability claim against Washington County and Warden Pelzer.
. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of summary judgment and apply the same standard that the district court should have applied. Nunez v. Packman, 578 F.3d 228, 230 (3d Cir.2009).
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OPINION OF THE COURT
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties and the District Court are familiar with its operative facts, we offer only an abbreviat*178ed recitation to explain why we will affirm the judgment of conviction and sentence of the District Court.
Wilbert Smith, appellant, was convicted of Robbery in the First Degree, Possession of a Firearm during the Commission of a Crime of Violence (3 counts), Assault in the First Degree, Assault in the Third Degree, and Possession of Ammunition. He was sentenced to a concurrent sentence of fifteen years imprisonment and fined $35,000. The District Court, Appellate Division, upheld the conviction.
Smith first argues on appeal that the prosecution violated Doyle v. Ohio by using his post Miranda silence against him at trial. 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The prosecutor asked the arresting officer:
Q.... [Wjhile you were out there on the scene did you advise Mr. Smith of his Miranda rights?
A. Yes, on the scene he was advised of his rights.
Q. Did he tell you anything?
A. He didn’t speak. He didn’t say anything at all.
The prosecutor then stated: “Thank you, Your Honor. We pass the witness.” Because Smith did not raise this issue prior to this appeal, we review for plain error. Government of Virgin Islands v. Rosa, 399 F.3d 283 (3d Cir.2005).
The Supreme Court in Doyle stated that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 617-18, 96 S.Ct. 2240. The question, therefore, is whether the record evinces the prosecution’s advantageous use of Smith’s silence to draw a negative inference against him. See Government of Virgin Islands v. Davis, 561 F.3d 159, 164 (3d Cir.2009). We find no such evidence here. We refuse to remake Doyle, as Smith requests, into a per se rule that regards any reference to a defendant’s Miranda rights as a violation of due process rights.
Next, Williams argues that the government failed to prove that Smith committed a a robbery. Robbery is “the unlawful taking of personal property in the possession of another from his person or immediate presence and against his will by means of force or fear.” 14 V.I.C. 1861. Smith claims that there is not evidence of a taking “from [the victim’s] person or immediate presence.”
This element of the statute has not been addressed in a precedential opinion by the courts of the Virgin Islands. We have, however, had opportunity to comment on similar language in a federal carjacking statute. There we stated that “from the person or presence of another” meant that the object was within his “reach, observation, or control, that he could if not overcome by violence or prevented by fear, retain his possession of it.” United States v. Lopez, 271 F.3d 472, 486 (3d Cir.2001). The critical nexus in this analysis is fear of or an actual threat of violence that causes the victim to relinquish control of his property. In this case, Smith admits to alluding to money that the victim was carrying in his backpack, brandishing a weapon, chasing the victim, and picking up the backpack dropped by the victim while fleeing. This, in our view, is substantial evidence of both Smith’s intent to commit robbery, and robbery from the victim’s person or immediate presence.
Smith then argues that first degree robbery under 14 V.I.C. § 1862 is not a dangerous crime under 23 V.I.C. § 451(e) because the later statute refers only to “robbery,” rather than “robbery in the *179first degree.” This argument is utterly meritless.
Smith also asserts that there was insufficient evidence to convict him of Robbery in the First Degree, Assault, or Possession of a Firearm During the Commission of a Crime of Violence. Beyond his arguments, addressed above, that one element of robbery was not satisfied, and that robbery is not a crime of violence, Smith adds that the victim’s eyewitness testimony is insufficient to convict him. Smith is wrong on this point. We also note that there were multiple persons who testified to seeing Smith with a gun drawn chasing the victim. They also testified to Smith’s efforts to dispose of the gun as police approached. Additionally, evidence of the subject gun was introduced, along with evidence of compatible cartridges found in his vehicle. Finally, the record reveals that police found the victim’s opened backpack in Smith’s car. While Smith proffered witnesses to provide an alibi, their credibility was impugned. We therefore find that a jury could reasonably convict Smith of First Degree Robbery on this evidence.
Smith next raises the issue of ineffective assistance of counsel. We take no position on Smith’s claim as we generally do not review such Sixth Amendment claims on direct appeal. United States v. Olfano, 503 F.3d 240, 246 (3d Cir.2007). The record here is insufficient for us to determine that issue.
For all of these reasons, we will affirm the judgement of conviction and sentence on charges of Robbery in the First Degree, Possession of a Firearm during the Commission of a Crime of Violence (3 counts), Assault in the First Degree, and Assault in the Third Degree.
Finally, as the government acknowledged, Smith’s conviction on possession of ammunition, pursuant to 14 V.I.C. § 2256, is error. As there is no means of obtaining a license to possess ammunition, it is impossible for the government to substantiate the requisite proof of lack of authorization. See United States v. Daniel, 518 F.3d 205, 209 (3d Cir.2008). Therefore, we will vacate the conviction under 14 V.I.C. § 2256.
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01-04-2023
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11-05-2022
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Evrol S. Dean pleaded guilty to conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) and to knowingly and wilfully using a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)). He was sentenced to a total of 145 months imprisonment. Dean appeals both his guilty plea and sentence. We will affirm.
*181I.
While employed with Dunbar Armored Car, Dean aided two co-conspirators in gaining access to and robbing an armored vehicle he was driving. "While Dean and his partner entered a bank in Livingston, New Jersey to pick up a deposit, Dean left one of the vehicle’s rear doors unlocked. His co-conspirators, armed with handguns, entered the armored car and hid. When Dean and his partner returned to the vehicle, the coconspirators told Dean to drive away from the bank and ordered his partner not to move. Dean’s partner attempted to thwart the robbery by drawing his own weapon and was shot twice. He was saved only by his bullet-proof vest. Police apprehended Dean and his coconspirators after a high-speed chase.
Dean and his co-conspirators were charged in a four count Indictment. Dean was charged in three of those counts: Count One conspiracy to commit armed robbery (18 U.S.C. § 1951(a)); Count Two armed robbery (18 U.S.C. §§ 1951(a) and 1952) and Count Three knowingly and wil-fully using a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)).
Dean entered a plea agreement as to Counts One and Three. During the plea proceeding, the Assistant United States Attorney misstated the term of supervised release on Count Three as three years rather than five years. Nonetheless, the plea agreement recited the correct term of supervised release as five years. Responding to the District Court’s questions, Dean assured the court that he had discussed the agreement with his attorney. The District Court found Dean’s plea knowing, voluntary and intelligent.
At sentencing, the District Court correctly identified the substance of the violations but inadvertently referred to Count Three as Count Two and Count Five. After the clerk alerted the District Court to the error, it noted every reference to Count Five should be changed to Count Three. No correction to the Count Two references was made.
Dean challenges the validity of his sentence, the voluntariness and intelligence of his plea agreement, and the effectiveness of his trial counsel.1
II.
Dean argues the District Court erred by mistakenly referring to Count Three, to which he plead guilty, as Count Five, for which he was not charged. Dean also asserts he was misled about the length of his supervised release. Dean contends these “errors” render his guilty plea constitutionally deficient. We disagree.
A plea agreement is knowing, voluntary and intelligent if the record reveals the defendant was properly advised of his constitutional rights and the charges against him. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 *182(1969) (citing Jackson v. Denno, 378 U.S. 368, 387, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)).
The District Court thoroughly inquired into Dean’s understanding of his plea agreement to ensure that he made a knowing, voluntary and intelligent plea. Dean’s plea agreement accurately reflects the two charges as the only counts to which Dean would plead guilty. The District Court correctly explained to Dean the charges to which he was to plead guilty. Moreover, the District Court correctly sentenced Dean on the charges described in the plea agreement and at the plea hearing. Therefore, Dean fails to show he did not enter his plea agreement knowingly, voluntarily’and intelligently.
Second, Dean argues the Government’s error in identifying the incorrect supervised release term is cause to vacate and remand. The District Court committed plain error, Dean claims, by failing to correct the Government’s misstatement and adopting the Government’s assertion that Dean’s maximum term of supervised release was three years. Dean claims this misstatement violated Fed.R.Crim.P. 11(b)(1).
To succeed on a Rule 11 claim, a defendant must demonstrate by “a reasonable probability that, but for the error, he would not have entered the plea.” United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). The alleged misstatement did not affect Dean’s substantial rights. Dean offers no evidence nor even asserts that had he heard the correct term of supervised release he would not have entered into the plea agreement. Furthermore, Dean’s plea agreement correctly states the term of supervised release as five years.
Accordingly, the misstatement did not substantially affect Dean’s rights and is not grounds for vacating the plea agreement.
III.
Dean also attacks the procedural and substantive reasonableness of his sentence. Dean contends the District Court failed to properly weigh the 18 U.S.C. § 3553(a) factors. We review a sentence for reasonableness, considering both its procedural and substantive elements. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
To be proeedurally reasonable, a district court must give meaningful consideration to the § 3553(a) factors. Lessner, 498 F.3d at 203. As explained in Rita v. United States, a district court “should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (citing United States v. Taylor, 487 U.S. 326, 336-37, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)) (internal quotations omitted). The sentencing judge need not explicitly comment on every factor if “the record makes clear the court took the factors into account in sentencing.” United States v. Howe, 543 F.3d 128, 137 (3d Cir.2008). Furthermore, “a sentencing factor may overlap with a basis for potential Guidelines departure.” Lessner, 498 F.3d at 203 (citing United States v. King, 454 F.3d 187, 194-95 (3d Cir.2006)).
The record demonstrates the District Court went to great lengths to explain its sentence in the context of § 3553(a)’s factors. Although noting it was a first event, the court found the offense grave (18 U.S.C. §§ 3553(a)(1) and (2)(A)), that deterrence was important *183(§ 3553(a)(2)(B)) and that Dean was more culpable than his co-defendants because he plotted the crime (§§ 3553(a)(3) and (6)). Because the District Court adequately considered the § 3553(a) factors, Dean’s sentence is not unreasonable.2
Next, Dean contends the District Court’s misstatement of the Count numbers, despite correction, renders his sentence improper. Dean provides no support for his argument and we find this position to be without merit. The District Court clearly understood the charges, correctly calculated the applicable Guideline range, analyzed the § 3553(a) factors and reached a reasonable sentence.
IV.
Finally, Dean claims he received ineffective assistance of counsel during both the pleading and sentencing phases. Generally, the proper avenue for challenging the effectiveness of trial counsel is on collateral review. United States v. Theodoropoulos, 866 F.2d 587, 598 (3d Cir.1989), overruled on other grounds by United States v. Price, 76 F.3d 526 (3d Cir.1996). Therefore, we do not address this issue on direct appeal.
V.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over Dean's appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review alleged errors without contemporaneous objection for plain error. United States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007) (citing Fed.R.Crim.P. 52(b) & United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002)). Plain error occurs when (1) an error is committed; (2) that error is plain; and (3) it affected defendant's substantial rights. Id. (citing United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000)). However, we have discretion in deciding whether or not to correct a plain error. Id. (citing United States v. Campbell, 295 F.3d 398, 404 (3d Cir.2002)). “A court of appeals should exercise its discretion [to correct plain error] only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotations and citation omitted).
. Dean also argues the District Court did not adequately consider his diminished mental capacity. However, the record illustrates the District Court considered and rejected Dean's argument pertaining to his low IQ.
We note the District Court's consideration of Dean's diminished mental capacity within the § 3553(a) factors, as opposed to within the Guidelines calculation as a departure, is consistent with our opinion in King, 454 F.3d at 196. Similarly, the District Court would have denied Dean’s motion for downward departure under § 5K2.13 of the Guidelines. In contrast to United States v. Lofink, 564 F.3d 232, 240-41 (3d Cir.2009), the District Court did not refuse to hear Dean's departure motion in calculating the Guidelines and it is clear the District Court denied Dean’s motion under its discretionary authority.
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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/8477098/
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OPINION
PER CURIAM.
Manuel D. Peguero appeals from an order of the United States District Court for the Middle District of Pennsylvania, which denied his motion to reduce his sentence. We will affirm the District Court’s judgment.
In January 1992, Peguero pleaded guilty to conspiracy to distribute cocaine. The District Court sentenced Peguero in April 1992 to 274 months in prison. He did not file a direct appeal, but did later file an unsuccessful motion to set aside his conviction and sentence, pursuant to 28 U.S.C. § 2255.1 Peguero filed the instant motion pursuant to 18 U.S.C. § 3582(c)(2), which allows a court to reduce an imposed sentence based on a subsequent amendment to the United States Sentencing Guidelines if the amendment is named in the Sentencing Commission’s policy statement (U.S.S.G. § 1B1.10) as one that may be retroactively applied. See United States v. McBride, 283 F.3d 612, 614-15 (3d Cir. 2002). Peguero did not specify any particular amendment in his § 3582(c)(2) motion, but as his crime involved cocaine, the District Court naturally assumed that he was requesting relief pursuant to Amendment 706, which reduced by two levels the base offense level for certain crack cocaine offenses. See United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008). The Court appointed counsel for Peguero, who later filed a successful motion to withdraw, because she determined that Peguero’s offense involved only powder cocaine, and not crack.2 The District Court then de*185nied Peguero’s § 3582(c)(2) motion, noting that Amendment 706 was not applicable, and that it could not address Peguero’s other sentencing claims by way of such a motion.
The District Court properly denied relief. Section 3582(c)(2) only applies if an applicable amendment lowers a defendant’s sentencing range. Peguero did not identify any amendment that would lower his sentencing range. The District Court lacked jurisdiction to consider Peguero’s other challenges to his sentence.3 United States v. Mateo, 560 F.3d 152, 155-56 (3d Cir.2009).
We will therefore affirm the District Court’s judgment.
. This court affirmed the District Court's denial of relief. United States v. Peguero, No. 97-7384, 1998 WL 108610 (3d Cir. Feb. 27, 1998). The Supreme Court also affirmed, holding that the District Court's failure to advise Peguero of his right to appeal did not entitle him to relief because he knew of his right and suffered no prejudice. See Peguero v. United States, 526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999).
. The Government also noted as much in its response to Peguero’s § 3582(c) motion.
. Peguero claimed in the District Court that his criminal history category was overstated and that he should have been granted an additional one-point reduction in his offense level for pleading guilty. On appeal, Peguero again complains about the way his criminal history was calculated. His claims are not cognizable in a § 3582(c)(2) proceeding.
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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/8477100/
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OPINION
PER CURIAM.
Petitioner Xiao Min Chen, a citizen of China, entered the United States without inspection in 2006. He was placed in removal proceedings in 2007, during which he conceded removability and sought asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied relief and the BIA dismissed his appeal. Chen then filed a petition for review.
I.
In support of his application for relief, Chen testified that he and his mother began practicing Falun Gong in 2006 at the urging of his maternal uncle. They believed Falun Gong would help Chen’s mother, who suffered poor health following a forced sterilization procedure. Chen, his mother, and his uncle joined an underground Falun Gong group, led by Master Lin. Chen testified that they practiced in secret at Master Lin’s home; he did not allege that they practiced Falun Gong anyplace else.
Chen testified that he derived many benefits from practicing Falun Gong and wanted to help spread knowledge of the practice. Chen, who was the sole owner of an electronics store, testified that he agreed to illegally keep 3000 Falun Gong instructional videos in his store until fellow practitioners could distribute them. He alleged that in August 2006, while he was visiting a friend, police raided the store, confiscated the illegal videos, and sealed off the store. Chen’s maternal uncle witnessed the raid and called Chen on his mobile phone to alert him. Chen contacted his mother, who told him to go into hiding.
Chen testified that his father, who was minding the store while Chen was away, was arrested during the raid and interrogated for several hours. Chen testified that when the police realized that he, not his fathei-, was the sole owner of the store, they released the father and began looking for Chen. Police allegedly searched both of the family’s homes and questioned his mother. However, they found no evidence related to Falun Gong, and did not discover that his mother or uncle practiced Fa-lun Gong. Chen testified that since the incident, his mother and uncle still practice Falun Gong and have not been discovered by police.
Chen testified that he went into hiding and ultimately fled to the United States, where he continues to practice Falun Gong. He also testified that following the closure of his store, he instructed his mother to sell his remaining inventory, which she did, after which new people occupied the store and turned it into a fruit stand. However, Chen presented no documentation that the store was ever closed or that the inventory was sold. Nor did he produce any evidence that his store changed hands, although he testified that he could ask his parents to send pictures of the store. Moreover, although Chen submitted letters from his parents and maternal uncle in support of his application, they contained no information about the closing of his store, liquidation of the inventory, or conversion of the store.
The IJ denied relief, finding Chen to be incredible. The IJ also noted that Chen failed to present any corroborative evidence that his store was shut down and converted into another establishment. The BIA dismissed Chen’s appeal, uphold*187ing the IJ’s adverse credibility determination and corroboration analysis and reasoning that, even if Chen were credible, he still failed to demonstrate past persecution or a well-founded fear of future persecution.
II.
We have jurisdiction over Chen’s petition for review under 8 U.S.C. § 1252(a). Because the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review agency factual determinations for substantial evidence, and will uphold such determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005) (internal citations omitted). Because Chen is proceeding pro se, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Because we agree with the BIA that Chen unreasonably failed to corroborate his claim that Chinese officials raided and shut down his store, forcing the sale of his inventory, we need not address the Board’s other bases for denying relief. To qualify for asylum, an applicant must demonstrate that he has suffered past persecution or holds a well-founded fear of future persecution based on a protected ground. See 8 U.S.C. § 1101(a)(42)(A); Leia v. Ashcroft, 393 F.3d 427, 432-33 (3d Cir. 2005). “Moreover, an applicant for asylum must provide reliable evidence to corroborate testimony when it is reasonable to expect corroborating evidence and there is no satisfactoi’y explanation for its absence.” Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir.2009) (citing Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir.2006)). A failure to corroborate may be relied on to deny relief when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.2007) (citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001)).
Here, the IJ noted that Chen presented no evidence to show that his store was closed, that the inventory had to be sold, or that his shop was turned into a grocery. Chen explained that receipts were not given for the items his parents sold and that there was no documentation that the police seized his store. Nevertheless, we agree that Chen could have obtained some corroborative evidence to present at the removal hearing. Indeed, he testified that he could have his parents send pictures of the converted store. In addition, the IJ noted that Chen’s supporting letters from his parents and uncle did not mention anything about having to close his store and sell the merchandise. We agree with the Agency that Chen’s explanation — that his parents did not discuss the store because they probably deemed it unimportant— was inadequate to overcome the need for corroboration.
Because Chen failed to provide adequate corroboration, we agree that he failed to demonstrate his eligibility for asylum. Specifically, Chen did not establish past persecution because he failed to provide sufficient corroborative evidence that Chinese officials raided his store and shut down his business because he stored Falun Gong videos. In light of his failure to present such evidence, we agree, too, that Chen did not demonstrate a well-founded fear that the Chinese government will take action against him for his alleged partic*188ipation in the distribution of Falun Gong videos.
Because Chen’s failure to corroborate rendered him ineligible for asylum, we also agree that he was unable to meet the higher standards applicable to applications for withholding of removal and CAT protection. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (withholding of removal); Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.2005) (CAT relief).
Accordingly, we will deny the petition for review. Chen’s motion to waive oral argument is denied as moot.
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OPINION
BARRY, Circuit Judge.
Plastipak Packaging, Inc. (“Plastipak”), a manufacturer of plastic containers, has been seeking payment since 1995 for plastic bottles it manufactured for Mac-Jam, Inc. d/b/a Regent Bottling Co. (“Mac-Jam”), a soft drink bottler.1 In February of 1999, Plastipak obtained a judgment against Mac-Jam. In an effort to collect on that judgment, Plastipak filed an action against Mac-Jam’s sole shareholder, Frederick P. DePasquale (“Mr. DePasquale,” together with his non-party wife, the “De-Pasquales”), and won a $767,393.62 judgment against Mr. DePasquale in 2001.2 Plastipak now seeks to satisfy the judgment by executing on certain moneys (the “Moneys”) which the DePasquales recently transferred from their joint bank account (the “Bank Account”) to a life insurance policy (the “Policy”) owned by Mr. De-Pasquale for the benefit of his wife.
The first issue on appeal is whether the District Court erred in refusing to permit Plastipak to execute on the Policy, which is protected from Mr. DePasquale’s creditors by Pennsylvania’s exemption statute, 42 Pa. Cons.Stat. § 8124.3 The second issue is whether the Court abused its discretion in refusing to allow additional discovery, i.e., refusing to allow Plastipak to depose the DePasquales in hopes of finding evidence that the DePasquales, albeit inexplicably, intended to terminate their tenancy by the entireties in the Moneys in the Bank Account prior to transferring the Moneys to the Policy (and thereby exposing Mr. DePasquale to liability for fraudulent transfer).4
I. Jurisdiction & Standard of Review
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have juris*190diction under 28 U.S.C. § 1291. We review the factual findings of the District Court for clear error; the legal conclusions are subject to plenary review. Del. River & Bay Auth. v. Kopacz, 584 F.3d 622, 626 n. 5 (3d Cir.2009). “A district court’s denial of discovery is reviewed for abuse of discretion.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 235 (3d Cir.2007).
II. Discussion
Plastipak is asking for essentially the same equitable relief which we already considered and denied in Plastipak’s first appeal before us, in this very same action, in 2003. See Plastipak Packaging, Inc. v. DePasquale, 75 Fed.Appx. 86 (3d Cir. 2003).5 In its first appeal before us, Plast-ipak argued for access to certain funds in the same Policy on equitable grounds, in the form of the “judicial estoppel” remedy. We rejected Plastipak’s arguments because, despite the allegations of fraudulent transfer, judicial estoppel “would punish the interests of an innocent third party, DePasquale’s wife,” who was the Policy’s beneficiary. Id. at 94 n. 9 (citing Montrose Med. Group Participating Savs. Plan v. Bulger, 243 F.3d 773, 778 (3d Cir.2001) (we incorrectly cited to page 777)).
A. Execution on the Policy
Plastipak now argues that the Moneys in the Policy can be reached via another equitable remedy: a constructive trust. However, our consideration of whether to impose a constructive trust requires that we balance the same equities that we considered in Plastipak’s earlier request for judicial estoppel. See Janus Mgmt. Servs., Inc. v. Schlessinger, 810 A.2d 637, 642 (Pa.Super.2002). It is, to say the least, disturbing that the parties have not even mentioned this in their briefs.
The equitable factors weighing against allowing Plastipak to reach the funds in the Policy have not changed. Mrs. DePasquale remains the beneficiary of the Policy. Mr. DePasquale is accused now, as before, of misusing the Policy to hide assets. Regardless of whether our earlier ruling is relevant under equitable or judicial estoppel or as the law of the case, it is appropriate to affirm.6 The DePasquales’ intentions, vis-a-vis whether the Moneys in the Bank Account were held in a tenancy by the entireties, are irrelevant because the Moneys are now safely in the Policy.
Moreover, as we explained in the prior appeal, the Policy is also protected by law. The plain language of the Pennsylvania exemption statute, 42 Pa.C.S. § 8124, makes clear that, regardless of the subjective intent of Mr. DePasquale when he took out the Policy, the funds are safe from his creditors.7 Plastipak has offered neither arguments nor any case that even *191suggests that Pennsylvania law allows creditors to access otherwise-protected assets on proof of the debtor’s subjective intent.
In any event, the factual findings of the District Court are not clearly erroneous. The record supports the Court’s finding that there is not clear and convincing evidence that the DePasquales intended to sever the tenancy by the entireties with respect to the Moneys. See Johnson v. Johnson, 908 A.2d 290, 296 (Pa.Super.2006) (noting that Pennsylvania law creates a rebuttable presumption that property is held in tenancy by the entire-ties, which may be overcome by clear and convincing evidence). The Court found that the Moneys were so-held until the moment they were transferred to the Policy. The Moneys were never accessible to Plastipak and were never in Mr. DePasq-uale’s individual control, and so could not have been fraudulently transferred.8
B. The Discovery Issue
The District Court did not abuse its discretion in refusing to allow additional discovery, and, in particular, the depositions of the DePasquales. Plastipak argues that it is entitled to an opportunity to depose the DePasquales in order to confirm its theory that, at some point, the DePasquales decided to sever their tenancy by the entireties of certain funds in the Bank Account, thereby rendering those funds vulnerable to attachment. If the DePasquales transferred the Moneys while the Moneys were held in tenancy by the entireties, the DePasquales are not subject to liability for fraudulent transfer. See C.I.T. Corp., 5 A.2d at 129. On the other, hand, if the tenancy by the entireties was severed before the Moneys were transferred to the Policy, then Mr. DePasquale alone transferred the Moneys to the Policy and Mr. DePasquale could be liable for fraudulent transfer.
The District Court denied the discovery request as untimely and because, “given the litigious history of these parties, it is unlikely that further discovery, briefing and an evidentiary hearing would be consistent with the just, speedy, and inexpensive determination of this action.” Plastipak Packaging, Inc. v. DePasquale, *192No. 99-cv-245, 2009 WL 186139, at *2 (W.D.Pa. Jan.27, 2009).9 It appears that the Court may have been incorrect in concluding that Plastipak’s requests were untimely, but the Court surely did not err, much less abuse its discretion, in refusing to allow additional discovery.
First, we discourage “fishing expeditions.” See Ranke v. Sanofi-Synthelabo Inc., 436 F.3d 197, 204 (3d Cir.2006). Plastipak’s proposal to depose the DePasq-uales in hopes that it will find a legal theory by which it could attach Mr. De-Pasquale’s assets bears all the hallmarks of a fishing expedition, particularly given that there is no evidence that the DePasq-uales intended to sever their tenancy by the entireties. Indeed, we have no more reason than did the District Court to believe that the DePasquales intended to do so.10 Plastipak’s argument that Mr. De-Pasquale evinced his intent to sever by writing a check to the Policy is unavailing. Plastipak offers no support for the proposition that an intention to separate property in the future severs the tenancy in the present. Moreover, Pennsylvania law is clear that both parties — not just one— must intend to sever a tenancy by the entireties. Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986).
Finally, Plastipak argues that if the De-Pasquales severed their tenancy by the entireties, then Mr. DePasquale could be liable for fraudulent transfer under Pennsylvania’s fraudulent conveyances statute, 12 Pa. Cons.Stat. § 5104. However, Plast-ipak has failed to show how Mr. DePasq-uale’s alleged fraudulent transfer would change the fact that the Moneys are now safely out of reach, and that Plastipak has no remedy at law or, under the circumstances, in equity, by which it can reach the Moneys in the Policy. Plastipak’s repeated conclusory statements about how the case turns on the intent of the DePasq-uales are not persuasive.
III. Conclusion
We will affirm the order of the District Court.
. From the early 1980s until sometime in 1995, Mac-Jam and Plastipak had an ongoing business relationship in which Plastipak supplied Mac-Jam with plastic bottles. In December of 1995, Plastipak filed a lawsuit against Mac-Jam alleging breach of contract.
. The merits of the action before us, which were decided by a jury eight years ago, revolved around whether Mac-Jam was Mr. De-Pasquale's alter ego, and whether he had engaged in the fraudulent transfer of property under the Pennsylvania Uniform Fraudulent Transfer Act ("PUFTA"), 12 Pa. Cons.Stat. §§ 5105-5110. On December 7, 2001, a jury found that Mac-Jam was his alter-ego, and judgment was entered against him in the amount of $767,393.62. The jury found in his favor on the fraudulent transfer count.
. 42 Pa. Cons.Stat. § 8124(c) provides that:
Insurance proceeds.-The following property or other rights of the judgment debtor shall be exempt from attachment or execution on a judgment:
(6) The net amount payable under any annuity contract or policy of life insurance made for the benefit of or assigned to the spouse, children or dependent relative of the insured, whether or not the right to change the named beneficiary is reserved by or permitted to the insured. The preceding sentence shall not be applicable to the extent the judgment debtor is such spouse, child or other relative.
.The most important of several flaws in Plastipak’s theory (which it wishes to explore with further discovery) is that even if Mr. DePasquale fraudulently transferred the Moneys to the Policy, the Moneys are now safe and unreachable, and Plastipak seems to have no basis to recover them either in law or in equity.
. In that appeal, Mr. DePasquale appealed certain evidentiary and other rulings, and Plastipak cross-appealed the District Court's decision protecting certain funds held in the same Policy now at issue before us.
. Plastipak cites two factually dissimilar cases for the proposition that a constructive trust is appropriate here: Fidelity Trust Co. v. Union National Bank of Pittsburgh, 313 Pa. 467, 169 A. 209 (1933) and Nagle v. Nagle, 799 A.2d 812 (Pa.Super.2002). Those cases are simply inapplicable under the circumstances here, and we reject them without further discussion.
.Section 8124 specifically provides exceptions to other exemptions. 42 Pa.C.S. § 8124. For example, the exemption for certain retirement funds, under § 8124(b)(l)(ix), includes an exception for "[ajmounts deemed to be fraudulent conveyances.” 42 Pa.C.S. § 8124(b)( 1 )(ix). The insurance exemption applicable in the case before us, at § 8124(c), contains no such exception. 42 Pa.C.S. § 8124.
. The issue is rarely discussed (the leading case was decided in 1939). See C.I.T. Corp. v. Flint, 333 Pa. 350, 5 A.2d 126, 129 (1939) (creditors could not challenge a transaction which spouses engaged in for the admitted purpose of preventing husband from becoming the owner by survivorship). In any event, as a matter of logic, it is unlikely that the DePasquales could reasonably be accused of trying to hinder creditors by transferring the Moneys from one protected asset (the Bank Account, held in a tenancy by the entireties) to another (the Policy). Addressing this issue, Plastipak offers only the conclusory statement that, even if the Moneys were held in a tenancy by the entireties prior to being transferred to the Policy, there was still a fraudulent transfer because the Bank Account "had been deemed to be subject to execution.” (Plastipak Br. at 29.) Plastipak cites no cases in support of this proposition, and, regardless, to say that the Bank Account had been "deemed to be subject to execution” is misleading. (Id.) In 2004, a Pennsylvania trial court refused to sustain objections to a writ of execution on certain funds held in the Bank Account which the court found were not held in a tenancy by the entireties. See Plastipak Packaging, Inc. v. DePasquale, GD No. 03-19032 (Ct. Com. PL, Allegheny County, Civ. Div. August 3, 2004). However, another Pennsylvania trial court later held that the Bank Account was not subject to execution vis-á-vis certain funds awarded to the DePasquales in a separate lawsuit because those funds were awarded to the DePasquales jointly. See Plastipak Packaging, Inc. v. DePasquale, GD No. 03-19032 (Ct. Com. PL, Allegheny County, Civ. Div. Nov. 30, 2006). Similarly, the Moneys at issue here, which were awarded to the DePasquales jointly after an arbitration proceeding, were never subject to execution when they were on deposit in the Bank Account.
. Plastipak argues that "the [District [C]ourt denied Plastipak's discovery requests only because they were supposedly untimely.” (Plastipak Br. at 23). We disagree.
. As the District Court explained, in its opinion denying Plastipak’s motion for reconsideration:
[T]here was no basis to conclude that Mrs. DePasquale ever acted to sever the entire-ties ownership. The proceeds at issue .were: (1) in the form of a check made out to Mrs. DePasquale; (2) deposited into a joint checking account; and (3) sent to Penn Mutual to restore the value of Mrs. DePasquale's interest as a death beneficiary. Plastipak’s argument that these proceeds somehow became the sole property of Mr. DePasquale borders on the frivolous. The Court adheres to the analysis in the January 29 Order.
Plastipak Packaging, Inc. v. DePasquale, No. 99-cv-245, 2009 WL 501888, at *2 (W.D.Pa. February 27, 2009).
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OPINION
AMBRO, Circuit Judge.
In July 2006, Thomas Reyes attempted to rob a grocery store in Philadelphia. A *194jury convicted him of various crimes relating to this incident. Reyes appeals, challenging only his conviction for attempted interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) (the “Hobbs Act”). In particular, he challenges his conviction on three grounds: 1) the insufficiency of the Government’s evidence to sustain his Hobbs Act conviction; 2) the unconstitutionality of the Hobbs Act as applied to his conduct; and 3) deficiencies in the indictment and jury charge.
We reject each of these challenges, and therefore afirnn.
I.
The Gomez Grocery is located in the Germantown section of Philadelphia. The store is open to out-of-state customers, and much of its inventory is delivered from other states (including New Jersey, North Carolina, and Virginia). The store also has an ATM machine on premises. On July 16, 2006, Reyes attempted to rob the store with a loaded, 9 mm. semiautomatic pistol.
Around noon, Reyes entered the store. He was wearing gloves and glasses, as well as a bandana that covered his face. Reyes locked the front door, drew his pistol, and announced that it was a “stick up.” From there, he ordered customers and employees to drop to the floor. When Reyes leapt on the counter to reach the register, the store manager and an employee attempted to stop him. Reyes fired his gun several times during the struggle. He was ultimately subdued and arrested.
During the incident, various items were knocked from the shelves. In the end, the grocery store closed for the remainder of the workday — approximately eight hours.
II.
In November 2006, a grand jury returned a three-count indictment against Reyes, charging him with one count each of: 1) Hobbs Act robbery; 2) carrying and using a firearm during and in relation to a crime of violence (in violation of 18 U.S.C. § 924(c)(1)); and 3) possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)). Reyes’s jury trial began in August 2007. At trial, he did not object to the indictment, the trial court’s jury instructions, or the constitutionality of the Hobbs Act. Following a three-day trial, Reyes was convicted on all counts.
The District Court sentenced Reyes to 180 months’ imprisonment, five years of supervised release, a $1,000 fine, and a special assessment of $300. Reyes timely appealed.1
III.
In this appeal, Reyes challenges only his Hobbs Act robbery conviction. In the end, we reject each of Reyes’s arguments seeking to overturn that conviction.
A.
First, Reyes challenges the sufficiency of the Government’s evidence to convict him of Hobbs Act robbery. “In reviewing a challenge to the sufficiency of the evidence, we ‘must determine whether, viewing the evidence most favorably to the [Government, there is substantial evidence to support the jury’s guilty verdict.’ ” United States v. Urban, 404 F.3d 754, 762 (3d Cir.2005) (quoting United States v. Idowu, 157 F.3d 265, 268 (3d Cir.1998)). “We ‘will sustain the verdict if *195any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, a claim of insufficiency of the evidence places a very heavy burden on an appellant.’” Id. at 762-63 (quoting United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998)) (internal quotation marks omitted).
The Hobbs Act applies to any robbery attempt that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” 18 U.S.C. § 1951(a). “To sustain a conviction for interference with commerce by robbery under § 1951, the [Government must prove the element of interference with interstate or foreign commerce by robbery.” United States v. Haywood, 363 F.3d 200, 209 (3d Cir.2004).
Reyes argues that Hobbs Act robbery requires a specific intent to affect interstate commerce, and that the Government failed to prove such a specific intent beyond a reasonable doubt. We disagree. It is well-established that a specific intent to affect interstate commerce is not an element of Hobbs Act robbery. Indeed, “[i]t is not necessary that the purpose [of the conduct was] to affect interstate commerce.” United States v. Addonizio, 451 F.2d 49, 77 (3d Cir.1972) (emphasis in original). Instead, the Government must prove only that “one of the natural effects [of the conduct was] an obstruction of that commerce.” Id. (emphasis in original). Accordingly, Reyes’s argument fails.
Reyes argues in the alternative that the trial evidence was insufficient to prove an effect on interstate commerce beyond a reasonable doubt. However, under the Hobbs Act the Government need not prove an actual effect on interstate commerce. Instead, it must only prove that the underlying robbery “potentially caused an effect on interstate commerce to any degree, however minimal or slight.” Urban, 404 F.3d at 762; see also Haywood, 363 F.3d at 211 n. 7; United States v. Clausen, 328 F.3d 708, 710-11 (3d Cir.2003). Furthermore, a “ ‘jury may infer that interstate commerce was affected to some minimal degree from a showing that the business assets were depleted.’ ” Haywood, 363 F.3d at 210 (quoting United States v. Zeigler, 19 F.3d 486, 493 (10th Cir.1994)); see also Urban, 404 F.3d at 767 (“[I]t is beyond cavil that the depletion of assets of a person engaged in interstate commerce has at least a ‘potential’ effect on that person’s engagement in interstate commerce.”).
At trial, the Government presented evidence that the grocery store imported portions of its inventory from other states, and was forced to close for approximately eight hours as a result of the robbery. During this period, the store could not receive goods from out-of-state vendors, sell its goods that had been delivered across state lines, or permit customers to use its ATM machine. Furthermore, the robbery itself was intended to steal money from the grocery store, which would have depleted its available assets and limited its ability to engage in interstate transactions.
Because the Government was required to prove only a minimal, potential effect on interstate commerce, we hold that it provided sufficient evidence to sustain Reyes’s conviction under the Hobbs Act.
B.
Reyes next argues that the Hobbs Act is unconstitutional “as applied” to his conduct. For support, he cites United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), where the Supreme Court held that a federal statute prohibiting the possession of a firearm in a school zone was unconstitutional. In Lopez, the Court identified three categories of activity *196that may be regulated under the Commerce Clause: 1) use of the channels of interstate commerce; 2) the instrumentalities of interstate commerce; and 3) activities that “substantially affect” intei’state commerce. In challenging the constitutionality of the Hobbs Act, Reyes argues that “[r]obbery is not a commercial activity. Robbery is a crime.” Appellant’s Br. 23. Therefore, Reyes adds, our requirement of only a minimal effect on interstate commerce cannot be squared with Lopez. He is mistaken.
Because Reyes did not raise this argument before the District Court, we review it only for plain error. See United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir. 2002). In any event, our Court has previously rejected similar challenges to the Hobbs Act under Lopez. See Urban, 404 F.3d at 766 (“[W]e have already rejected the argument that Lopez and its progeny require proof of a ‘substantial effect’ on commerce in an individual case in order to show a Hobbs Act violation.”). Furthermore, “[e]ven after Lopez, every Court of Appeals to have addressed the issue has held that the Hobbs Act may constitutionally be applied to crimes which do not have a substantial effect on interstate commerce.” Clausen, 328 F.3d at 710.
In Clausen, the defendants “argue[d] that the Hobbs Act [wa]s unconstitutional as applied to a broad category of cases, including this one, in which the effect of any given robbery on interstate commerce was minimal.” Id. at 710. We rejected this argument, concluding that the Hobbs Act “regulate[d] activity which occurred] locally but which ha[d] an explicit nexus with interstate commerce.” Id. at 711. We added that this rendered it “distinguishable from the statute[] at issue in Lopez,” and therefore “the District Court did not err when it instructed the jury that it need only find that each robbery had a minimal effect on interstate commerce.” Id.
Reyes’s constitutional challenge is virtually indistinguishable from the challenge we rejected in Clausen. As a result, Reyes cannot establish error under our precedent, let alone plain error.
C.
Finally, Reyes argues that: 1) portions of the indictment and jury charge can be read to suggest that a specific intent to affect interstate commerce was a required element; and, accordingly, 2) the later portion of the jury charge — in which the District Court instructed the jury that it did not have to find that Reyes intended to affect interstate commerce — both caused the verdict to be “at variance” with the indictment, and resulted in “confusing” and “inconsistent” instructions. We review these claims only for plain error because Reyes failed to raise them before the District Court. See United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001). In any event, Reyes is mistaken.
The indictment charged him as follows: Thomas Reyes attempted to obstruct, delay[,] and affect commerce and the movement of articles and commodities in commerce, by robbery, [by] unlawfully attempting] to take and obtain cash from the Gomez Grocery located at 82 East Walnut Lane, Philadelphia, Pennsylvania in the presence of employees of the Gomez Grocery and against their will, by means of actual and threatened force, violence, and fear of injury, immediate and future, to the employees of the Gomez Grocery, that is, by brandishing and discharging a gun, demanding money, and threatening employees of the Gomez Grocery.
The indictment further alleged that “the Gomez Grocery was engaged in and affect*197ing interstate commerce, providing food and drink, or goods and services, which were produced and transported from other states to Pennsylvania, to residents of the Commonwealth of Pennsylvania and out-of-state residents.” Therefore, the indictment properly charged Reyes with Hobbs Act robbery.
Furthermore, the charge to the jury accurately stated the law and was not inconsistent with the indictment. In relevant part, the Court instructed the jury as follows:
The defendant need not have intended or anticipated an effect on interstate commerce. You may find the effect as a natural consequence of his actions. If you find that the defendant intended to take certain actions, that is, he did the acts charged in the indictment in order to obtain property, and you find those actions have either caused or would probably cause an effect on interstate commerce no matter how minimal, then you may find the requirements of this element satisfied.
Reyes does not offer any passages that persuade us that a reasonable trier of fact would be confused by any alleged inconsistencies in the indictment and the jury instructions. Both the indictment and the jury instructions present the relevant law accurately and, read together, are consistent.
In order to prevail, a defendant must prove that there was “a ‘variance’ between the indictment and the proof at trial, to the prejudice of the defendant’s substantial rights.” United States v. Barr, 963 F.2d 641, 648 (3d Cir.1992). We have recognized a “variance” only in situations where the evidence at trial proves facts other than those alleged in the indictment. Id. Reyes has failed to establish either a variance or prejudice.
As noted above, the Government offered evidence that many of the items sold in the Gomez Grocery were purchased from other states. As a result of the attempted robbery, the store closed down for eight hours, which kept it from receiving out-of-state goods or allowing its customers to use its ATM machine. Furthermore, had Reyes successfully completed the robbery, he would have stolen money from the Gomez Grocery, therefore depleting assets that would have been available to engage in interstate transactions. This evidence all supports a conviction for Hobbs Act robbery — the relevant crime charged in the indictment. Furthermore, nothing in the indictment or jury instructions suggests any confusion about the underlying offense or the elements that had to be proven at trial — including specific intent. * * * * * *
For these reasons, we reject each of Reyes’s challenges, and affirm the judgment of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
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OPINION
BARRY, Circuit Judge.
Appellant Lawrence Otter appeals an order holding him in civil contempt for failing to pay attorneys’ fees and certain costs previously imposed as a sanction by the District Court. We will vacate in part the order of the District Court and remand for further proceedings consistent with this Opinion.
BACKGROUND1
This appeal emanates from a 2008 ERISA action in which various plaintiffs— represented by Otter — sued Independence Blue Cross (“IBC”), the Commonwealth of Pennsylvania’s Departments of Health and *199Insurance (“the Commonwealth”), and other defendants not relevant to this proceeding. IBC and the Commonwealth each filed motions to dismiss the complaint, with IBC also filing a motion for sanctions, including attorneys’ fees and costs, pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. Thereafter, the Commonwealth also filed a motion for attorneys’ fees pursuant to 28 U.S.C. § 1927.2 The substance of the motions to dismiss, as the Commonwealth summarizes it, was that “the claims that plaintiffs were trying to raise ... had been raised before, in proceedings involving several of the same parties (and counsel) now before the district court, and every court to have considered these claims had rejected them.” (Commonwealth’s Br. at 6.) On April 25, 2008, the District Court granted the motions to dismiss.
On July 28, 2008, the District Court, after a hearing, granted the motions for sanctions.3 The Court concluded that “[a]t the time Mr. Otter filed the Complaint on behalf of his clients, he had been informed four times previously his claim had no basis in fact or law. Yet, he unreasonably brought the same claim without any additional law or evidence to support.” (July 28, 2008 Sanctions Order at 12-13.) Noting that “it is difficult to imagine a better example of frivolous, vexatious, and unreasonable multiplicity of proceedings or the continued pursuit of a baseless claim in the face of several irrebuttable defenses,” the Court determined that sanctions were appropriate. (Id. at 11.) The Court found that Otter “did not challenge the amount of the fees and costs claimed,” and held that the “little mitigating evidence” put forth was insufficient to reduce the “unopposed lodestar calculations” under the factors articulated in Doering v. Union County Board of Chosen Freeholders, 857 F.2d 191 (3d Cir.1988).4 (Id. at 16.) The Court ordered payment of sanctions within thirty days of the Order. Otter did not appeal.
Neither the Commonwealth nor IBC received payment within the thirty day period prescribed by the District Court, and so, in November 2008, they filed motions to hold Otter in civil contempt. The Court held a hearing on March 5, 2009. Otter did not submit a response to the motions; rather, on the date of the hearing, attorney Frank Marcone filed — on Otter’s behalf — a motion to vacate the sanctions order of July 28, 2008. Marcone appeared at the hearing to represent Otter. Marcone, however, was then serving a two-year suspension and the Court found that because he had never entered an appearance on behalf of Otter, his representation of Otter would not fall within the provision of the suspension order permitting him to “wind up” his practice. The Court denied Otter’s *200request for a continuance, and denied as untimely his motion to vacate the July 28, 2008 order imposing sanctions.
The hearing on the motions for contempt went forward. Claiming that he lacked the financial resources to pay the sanctions that had been imposed, Otter submitted his 2008 income tax return, and informed the District Court that his law practice had grossed under $1,000 since the beginning of 2009 and that he had “received notices” that he was behind on his electric and phone bills. He stated that his “non-compliance has not been will-full,” and that although he would have liked to comply with the sanctions order, he “simply [did] not have the funds to do that.” (March 5, 2009 Hearing at 20, 21.) The Court then addressed the Commonwealth and IBC: “What do you want me to do? You can’t get blood from a stone, and the argument he’s making is that he doesn’t have the capacity to comply, so it’s not a willful disobeyance of my order.” (Id. at 23.)
Following the hearing, the District Court issued a written order holding Otter in contempt of the July 28, 2008 order imposing sanctions and entering judgment on that order.5 The March 5, 2009 order did not make a finding as to Otter’s ability to pay those sanctions. Otter appealed.
DISCUSSION
Otter argues that he should not have been held in contempt because his disobedience of the District Court’s order instructing him to pay to attorneys’ fees was not willful but, rather, was a result of his being in “desperate straits” financially.6 (Appellant’s Br. at 6, 9.)
We review an order holding a party in contempt for abuse of discretion, and will reverse only where the decision “is based on an error of law or a finding of fact that is clearly erroneous.” Marshak v. Treadwell, 595 F.3d 478, 487 (3d Cir.2009) (quoting Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.1995)); see Harris v. City of Phila., 47 F.3d 1311, 1321 (3d Cir.1995). In order for a party to be held in civil contempt,7 three elements must be established by clear and convincing evidence: “(1) that a valid order of the court existed; (2) that the defendant had knowledge of the order; and (3) that the defendant disobeyed the order.” Berne Corp. v. Gov’t of the V.I., 570 F.3d 130, 139 (3d Cir.2009) (citation omitted). To the extent there are ambiguities in the evidence, they “must be resolved in favor of the party charged with contempt.” John T. v. Del. County Intermediate Unit, 318 F.3d 545, 552 (3d Cir. 2003). Because “willfulness is not a necessary element of civil contempt ..., [any evidence of defendant’s] good faith does not bar the conclusion ... that [the defendant] acted in contempt.” Robin Woods Inc. v. Woods, 28 F.3d 396, 399 (3d Cir. 1994) (quoting Harley-Davidson, Inc. v. *201Morris, 19 F.3d 142, 148^9 (3d Cir.1994)). The Supreme Court has explained, however, that in “a civil contempt proceeding ... a defendant may assert a present inability to comply with the order in question”. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). Similarly, we have recently made clear that “an order of civil contempt [is or will become] punitive if a contemnor is unable to comply with the order.” United States v. Harris, 582 F.3d 512, 520 (3d Cir.2009). While the party raising the impossibility defense has the burden of proving it, courts “will not be blind to evidence that compliance is now factually impossible.” Rylander, 460 U.S. at 757, 103 S.Ct. 1548.
Otter does not argue that he did not violate a known court order imposing sanctions; rather, the thrust of his argument is that the District Court “disregarded the financial evidence presented at the contempt proceeding,” which he claims demonstrates his inability to pay the ordered amount. (Appellant’s Br. at 7.) At the contempt hearing, Otter presented the Court with his 2008 tax return while explaining, “I tried to comply with the Court’s order, but I simply do not have the funds to do that.” (March 5, 2009 Hearing at 20.) He informed the Court that although he might eventually be able to make some payments if he was successful in his representation of various clients in pending matters, “$40,000 would just bankrupt [him].” (Id. at 27.) Despite recognizing Otter’s precarious financial state at the hearing when it observed that “[y]ou can’t get blood from a stone,” the Court made no findings orally or in its written order as to whether Otter was then unable to comply with the order or would be unable to do so in the foreseeable future and, if so, whether an order of civil contempt would be punitive. This was an abuse of discretion.
CONCLUSION
We will vacate the March 5, 2009 order of the District Court insofar as it holds Otter in civil contempt, and will remand this matter for further proceedings consistent with this Opinion.
. Oiler has filed an appendix without continuous pagination. Accordingly, we cite not to the appendix, but to the relevant documents.
. At the April 2008 hearing on the motions to dismiss, “the court — clearly leaning toward granting the motions to dismiss — directed the Commonwealth agencies to file a motion for attorneys' fees too.” (Commonwealth's Br. at 7-8.) The Commonwealth sought $6,352.50, and IBC sought $35,436.91 in fees and costs. Otter does not now — nor did he before the District Court — oppose these calculations. (July 28, 2008 Sanctions Order at 16.)
. With respect to IBC's motion, sanctions were ordered against Otter and three other parties; however, the Commonwealth’s sanctions motion was directed only at Otter.
.In Doering, we explained that a district court should consider a variety of “equitable considerations” both when deciding whether to impose sanctions and when determining the appropriate amount of those sanctions. 857 F.2d at 197. We listed “[o]ther mitigating factors which a district court may consider in the context of Rule 11” such as, for example, "the attorney's history of filing frivolous actions ..., the defendant's need for compensation, the degree of frivolousness,” and the willfulness of the offender’s actions. Id. at n. 6 (internal citations omitted).
. The March 5, 2009 order also entered judgment in favor of IBC against the other plaintiffs in the initial litigation. Those parties are not involved in this appeal.
. Otter also argues, without citing any supporting case law, that by preventing Mar-cone — a suspended attorney — from representing him at his contempt hearing, the Court "denied Otter his right to counsel ... in violation of his Sixth Amendment rights." (Appellant's Br. at 8.) As this was not a criminal proceeding, the Sixth Amendment was not implicated. See Fadiga v. Att'y Gen., 488 F.3d 142, 157 n. 23 (3d Cir.2007) ("As a matter of formal constitutional doctrine, the Sixth Amendment right to (effective) counsel does not apply in a civil context.").
.Otter does not dispute Appellees' characterization of the contempt order as "civil." Where, as here, a party “fail[s] to comply with a valid court order," civil contempt is imposed. United States v. Harris, 582 F.3d 512, 514 (3d Cir.2009).
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OPINION
PER CURIAM.
Yakov Rokhvarg appeals from an order of the District Court granting the Defendants’ motion to dismiss his complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1). We will affirm.
I.
In Rokhvarg’s complaint he alleged that the Defendants, two local public officials, conspired to ignore the deterioration of an apartment complex owned and managed by Rokhvarg, thereby jeopardizing the health and safety of the tenants in that complex. Rokhvarg requested the following relief: 1) that the Defendants be ordered to immediately relocate the tenants; 2) compensatory damages in the amount of $258,000 for the “intentional physical destruction” of the complex “as a result of the conspiracy”; 3) compensatory damages in the amount of $50,000 for each tenant “for playing ‘Russian Roulette’ (A game of probability) with the tenants lives”; and 4) counsel fees1 and costs.
Defendants moved to dismiss Rokh-varg’s complaint, alternatively pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The District Court granted the motion, finding that even drawing all reasonable inferences in Rokhvarg’s favor, “the Complaint raises no federal grounds upon which relief may be granted.” The District Court declined to give Rokhvarg leave to amend his complaint, determining that any amendment would be futile. The District Court concluded that because it was dismissing Rokhvarg’s complaint, his “Order to Show Cause with Emergency Safety Relief’ was also denied. Rokhvarg appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008). We re*203view de novo the District Court’s grant of a Rule 12(b)(1) motion. See Lightfoot v. United States, 564 F.3d 625, 626 (3d Cir. 2009). We review for abuse of discretion the District Court’s decision to deny Rokh-varg leave to amend his complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002).
III.
We find no error by the District Court in the proceedings below. The jurisdiction of federal district courts is limited: it only can be exercised over civil actions that arise under federal law (i.e., federal question jurisdiction), or those that arise between citizens of different states where the matter in controversy exceeds $75,000 (i.e., diversity jurisdiction). See 28 U.S.C. §§ 1331 and 1332(a). For purposes of federal question jurisdiction, a claim arises under federal law if it is apparent from the face of the complaint that the cause of action was created by federal law. See Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166, 171 (3d Cir.1997). For diversity jurisdiction, a complainant must plead that he is a citizen of a particular state and that the defendants are citizens of a different state. See Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir.2003).
The District Court clearly lacked diversity jurisdiction over the parties, all of whom are citizens of New Jersey. In addition, the District Court correctly determined that Rokhvarg’s complaint did not advance a cognizable claim under federal law, thus precluding the District Court from exercising federal question jurisdiction. As a result, it was proper for the District Court to grant the Defendants’ motion to dismiss the complaint for lack of subject matter juiisdiction. Rokhvarg’s contention on appeal that the Defendants should be prosecuted for violations of 18 U.S.C. § 241 (criminalizing conspiracy to impede the exercise of federal rights) is not a cognizable federal claim in a civil suit, cf. United States v. Philadelphia, 644 F.2d 187, 199 (3d Cir.1980), and it does not demonstrate that the jurisdictional defects in Rokhvarg’s complaint can be ameliorated. Therefore, the District Court did not abuse its discretion when it declined to give Rokhvarg leave to amend his complaint.
Accordingly, we will affirm the District Court’s order. Rokhvarg’s motions are denied.
. Rokhvarg has proceeded with this case pro se from its inception.
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OPINION
PER CURIAM.
Parul Patel, a native and citizen of India, entered the United States before 1992 as a child. After the Government charged her with removability in 2006, she sought asylum, withholding, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) sustained the charge of removability and denied the applications for relief from removal. Specifically, he ruled that the asylum application was untimely, and denied the other applications based on an adverse credibility finding and, assuming credible testimony, a failure to satisfy the pertinent standards for relief.
Patel appealed to the Board of Immigration Appeals (“BIA”). The BIA agreed that Patel was ineligible for asylum because of an untimely filing. The BIA reversed the adverse credibility finding but dismissed the appeal. The BIA held that Patel had not shown that she was entitled to withholding or CAT relief. Patel presents a petition for review.
First, we address the scope of our jurisdiction over her petition. Although Patel includes arguments relating to the timeliness of her asylum application and her entitlement to asylum relief, we do not have jurisdiction over that question. See Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006). To the extent that her petition relates to that question, we will dismiss it. However, we otherwise have jurisdiction over her petition for review under 8 U.S.C. § 1252.
Because the BIA issued a decision separate from the IJ, we review only the BIA’s ruling. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir. 2002). We review factual findings for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). On review, we conclude that the BIA did not err in denying Patel’s applications for relief.1
Patel and her husband were born in the same city in India, but to different circumstances. R. 139 (Patel describing Ahme-dabad as similar to New York City and her part of the town as the place where the housekeepers for the rich residents live). Although they were born into different castes, Patel and her husband met and married for love in the United States, against the wishes of Patel’s husband’s parents. Patel testified that her husband’s parents disapproved of her. For instance, when her husband’s mother came to visit before the wedding, she expressed her disappointment and acted as if her son could do better, R. 142, giving Patel a bad look and not responding to questions, R. 144. Patel also testified that she feared that her husbands’ parents, with whom she would be obliged to live in India, R. 142, would “torture” or mistreat her because of her *208caste and because her parents did not provide a dowry, R. 137, 139, 146. She also stated that she feared being kicked out of her in-laws’ house and having to fend for herself without knowing how to read or write Gujarati. R. 148-49.
Patel’s husband testified that his parents are not happy about his marriage, R. 170, but that they tolerated it, R. 164. He also stated that his parents would not accept Patel because she is from a lower caste, R. 172, and that she will be “out of society,” R. 173, yet not free to live elsewhere in India, R. 174. Her husband would not accompany her to India, R. 176, and he would not be able to change his parents’ behavior, R. 180. He speculated that his parents may beat his wife (because they used to beat him). R. 184.
Patel also put forth a claim of a pattern and practice of persecution against women in India. She recollected witnessing, as a child, her aunt being beaten by her husband while her aunt’s in-laws stood by unmoving. R. 134. She noted that her friend was mugged on a visit to India in 2005 and expressed a general fear of crimes and riots. R. 150. She also submitted articles about the treatment of women, including information about “dowry deaths,” the killing of a bride by a groom’s family for failure to pay a dowry. The 2006 Country Report on Human Rights Practices is also in the record (beginning at R. 374).
In India, Patel may be very uncomfortable living with her in-laws. In their community, she may face social ostracism. However, even her husband could not say that she would be tortured by his parents, who “tolerate” the marriage. Overall, Patel did not show a clear probability that she would be singled out for persecution on account of a protected ground. Nor did she prove her claim of a pattern or practice of persecution tolerated by the Indian government. According to the Country Report, domestic violence, including dowry deaths, remains a problem in India; however, new legislation addresses this serious issue. R. 400-01. Furthermore, Patel did not prove that it is more likely than not that she be tortured on her return to India.
For these reasons, the agency did not err in denying Patel’s withholding and CAT claims, see Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003); cf. Wong v. Attorney Gen. of the United States, 539 F.3d 225, 233 (3d Cir.2008). Accordingly, to the extent that we have jurisdiction over her petition, we will deny it.
. Although the Government argues to the contrary, we do not agree that Patel waived a challenge to the BIA's decision on her CAT claim, and we will consider it.
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OPINION
WEIS, Circuit Judge.
Hosin Z. Mohammad, a citizen of Bangladesh, illegally entered the United States in January 2008. He conceded re-movability, but applied for political asylum, withholding of removal, and relief under the Convention Against Torture. An Immigration Judge denied Mohammad’s applications and ordered that he be removed from the country. The BIA affirmed, and Mohammad timely petitioned for review.1 We will deny the petition.
Mohammad contends that he was erroneously denied asylum because it was wrongly concluded that he had not suffered past persecution. He also argues that both the IJ and BIA incorrectly determined that his alleged well-founded fear of future persecution had been rebutted.
The IJ received evidence that the Bangladesh Nationalist Party (“BNP”) controlled the Bangladesh government until October 2006. At that time power was transferred to a caretaker regime, which has, among other things, arrested the leaders of both the BNP and the Awami League, Bangladesh’s two main political parties.
Mohammad testified that he was a member of the BNP and, in late October 2006 and after the caretaker government had assumed power, was attacked at a political meeting by members of the Awami League. He sustained injuries to his wrist and hands. After recovering, Mohammad continued his political activities on behalf of the BNP despite threatening phone calls from Awami League members.
In February 2007, Mohammad traveled to Tongi, another town in Bangladesh, to escape the Awami League threats and the police. In March 2007, he went to India and stayed there for three months before returning to Bangladesh, where he resided unmolested until coming to the United States. He now claims that he will be killed by the Awami League if returned to Bangladesh.
The IJ concluded that Mohammad had not met the requii’ements for asylum because he had failed to demonstrate past persecution. See 8 C.F.R. § 1208.13 (discussing asylum eligibility). The evidence did not reveal either that the police abused him or that the Awami League’s members who attacked and threatened him were members of the government, sanctioned by the government, or acted with impunity. See Mulanga v. Ashcroft, 349 F.3d 123, *213132 (3d Cir.2003) (applicant must show that past persecution “[wa]s committed either by the government or by forces that the government [wa]s either unable or unwilling to control”).
In addition, the IJ found that the evidence did not support a finding of an objective fear of future persecution because Mohammad was able to leave and return to Bangladesh, as well as live and travel around the country for months after the attack, without a problem. See id. (if past persecution is not shown, an applicant may still be eligible for asylum if he has “a well-founded fear of future persecution by showing that [ ]he has a genuine fear, and that a reasonable person in h[is] circumstances would fear persecution if returned to h[is] native country” (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003))).
The BIA concluded that, even if Mohammad had shown past persecution, the government had rebutted any claim to a well-founded fear of future persecution because the current conditions in Bangladesh make it unlikely that the Awami League could act with impunity. In addition, Mohammad was able to relocate to another town without difficulty. See 8 C.F.R. § 1208.13(b)(l)(i)(A)-(B).
We find no reversible error in the decisions of the IJ and BIA. See Leia v. Ashcroft, 393 F.3d 427, 433 n. 5 (3d Cir. 2005) (we review both the IJ’s and BIA’s decisions when the BIA affirms the IJ, but “also set[s] forth somewhat its own rationale and analysis”). Substantial evidence supports the order of removal, and nothing in the record compels a contrary finding. See Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d Cir.2003) (conclusions on past persecution and well-founded fear of future persecution are factual findings that “must be upheld ‘unless the evidence not only supports a contrary conclusion, but compels it’ ” (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001))).
Mohammad also argues that he should have been granted withholding of removal and relief under the Convention Against Torture. However, because Mohammad did not satisfy the requirements for asylum, he cannot meet those for withholding of removal. See Mulanga, 349 F.3d at 132 (an alien who fails to demonstrate well-founded fear of future persecution for purposes of asylum cannot overcome standard for withholding of removal). Nor has he demonstrated eligibility for protection pursuant to the Convention Against Torture by showing that, upon his return to Bangladesh, he is likely to suffer “severe pain and suffering” inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.2002) (citing 8 C.F.R. § 208.18(a)(1)).
Accordingly, the petition for review will be denied.
. We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1).
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https://www.courtlistener.com/api/rest/v3/opinions/8477118/
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OPINION
PER CURIAM.
Herbert McMillian appeals pro se from the order of the United States District Court for the District of Delaware denying his bankruptcy appeal, in which he alleged “bankruptcy crimes” in connection with his termination of employment with Trans World Airlines Inc. in 1979. The District Court denied the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). We will affirm.
The parties are familiar with the background of the bankruptcy case. Although the Bankruptcy Court disallowed and expunged McMillian’s wrongful termination and denial of benefits claims in 2004, McMillian continually attempts to resurrect these claims whenever the opportunity arises in the Bankruptcy Court. Here, the TWA Post Confirmation Estate (“TWA Estate”) filed a motion to extend the term of the estate in 2008, which triggered a reply by McMillian. The title of his reply indicated that he opposed TWA Estate’s motion. Substantively, however, his reply addressed only the long disallowed and expunged claims, and sought a bankruptcy investigation into TWA Inc.’s alleged criminal activity. The Bankruptcy Court entered an order extending the estate term for one year. McMillian appealed to the District Court.
In support of his appeal in the District Court, McMillian raised essentially the same arguments about his wrongful termination and denial of benefits that he raised in his reply filed in the Bankruptcy *215Court. McMillian also filed a motion to convene a grand jury to investigate TWA Inc.’s alleged crimes. The District Court concluded that McMillian’s Bankruptcy Court filings did not raise any meritorious challenge to the order appealed. Specifically, the District Court determined that McMillian’s opposition to the extension of the estate term merely restated claims that were previously adjudicated and disallowed in 2004. The District Court granted McMillian in forma, pauperis status, denied his motion for a grand jury, and denied his appeal as frivolous under § 1915(e)(2)(B) because it lacked an arguable basis in law and in fact. McMillian filed this timely appeal.
The District Court had jurisdiction to review the Bankruptcy Court’s order pursuant to 28 U.S.C. § 158(a), and we have jurisdiction to review the District Court’s order under 28 U.S.C. §§ 158(d) and 1291. Our review of the District Court’s determination is plenary. See Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 353 (3d Cir.2002).
Upon thorough review of McMillian’s brief on appeal, we conclude that his appellate arguments, which reiterate his previously disallowed and expunged claims and renew his request for a criminal investigation, are meritless. We agree with the District Court’s analysis and conclusion that McMillian’s appeal from the Bankruptcy Court order extending the term of the estate lacked arguable basis in law or fact. Hence, the District Court properly denied his appeal and his motion for a grand jury.
Accordingly, we will affirm the judgment of the District Court. McMillian’s motions for grand and petit juries and to expand the, record are denied.
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OPINION
PER CURIAM.
In this civil rights action, Timothy A. Hale, proceeding pro se, appeals from orders of the United States District Court for the Middle District of Pennsylvania denying his pre-trial motion in limine and entering judgment on the jury’s verdict. We will affirm.
In September 2007, Hale, a Pennsylvania inmate incarcerated at SCI-Rockview, filed a complaint against five prison officials, alleging that he was removed from his prison law library job in retaliation for filing grievances and civil rights actions, for assisting other prisoners with their grievances and lawsuits, and for challenging a “Cease Communications Order.” See 42 U.S.C. § 1983. The parties agreed to proceed before a Magistrate Judge. After unsuccessfully moving to dismiss the case under Federal Rule of Civil Procedure 12(b)(6), the defendants filed a motion for summary judgment, arguing, inter alia, that they removed Hale from his job because a confidential informant indicated that Hale had stolen photocopy paper from the law library. The Magistrate Judge denied the summary judgment motion, noting that the evidence did not support the defendants’ contention that Hale was fired under suspicion of stealing paper. In particular, the Magistrate Judge noted that “this case ... [is] one in which a serious allegation of misconduct was raised as to prisoner Hale, an investigation was conducted, he was not disciplined (nor determined in any explained manner to have committed misconduct) but he lost his prison library job ... and is now labeled a ‘security risk.’ ”
Prior to trial, Hale filed a motion in limine, seeking to preclude the defendants from arguing that “the plaintiffs job suspension was a disciplinary sanction [for] ... stealing the paper.” Hale contended that defendants could not present such an argument because “any claims or defenses not preserved by and through the prison grievance system ... would be procedural*217ly defaulted pursuant to the requirements of the Prison Litigation Reform Act (PLRA),” and must be excluded from trial. The Magistrate Judge denied the motion, holding that the “PLRA does not require prison defendants to exhaust their defenses to a prisoner’s allegations in a civil suit before raising them at trial.” At trial, two of the defendants testified that Hale had been removed from his prison library job based on the confidential informant’s indication that Hale had stolen copy paper. The jury returned a verdict in favor of the defendants. This timely appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 636(c)(3), which provides, in part, that “an aggrieved party [who filed the consent referred to in § 636(c)(1) ] may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court.” This Court reviews an evidentiary ruling for an abuse of discretion, reversing only if the ruling is arbitrary or irrational. See McKenna v. City of Philadelphia, 582 F.3d 447, 460 (3d Cir.2009); United States v. Williams, 458 F.3d 312, 315 (3d Cir. 2006).
The District Court properly denied Hale’s motion in limine. Contrary to Hale’s assertion, evidence that the defendants removed Hale from his prison library job because they suspected that he was stealing copy paper was certainly relevant to their defense. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir.2001) (holding that even if “a prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.”); see also Colon v. Hoivard, 215 F.3d 227, 234-35 (2d Cir.2000) (upholding admission of prison disciplinary record in § 1983 action alleging retaliation because the “information was part of the reason for the penalty ... assessed” by the Hearing Officer). In this connection, there is no merit to Hale’s assertion that the Magistrate Judge improperly permitted the defendants to testify about statements made to them by the confidential informant. While hearsay, those statements were not offered for their truth (i.e., that Hale stole the paper); rather, the informant’s statements were introduced to demonstrate that the defendants had a legitimate penological motive for removing Hale from his prison library job (ie., their belief that he was stealing paper). See Citizens Financial Group, Inc. v. Citizens Nat. Bank of Evans City, 383 F.3d 110, 133 (3d Cir.2004) (under the hearsay exception in Federal Rule of Evidence 803(3), statements that otherwise would be hearsay are admissible to show the declar-ant’s state of mind).
Finally, Hale did not cite, and we have been unable to locate, any authority supporting his contention that the defendants were required to administratively exhaust specific “claims or defenses” before raising them in the subsequent civil lawsuit. Cf. Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir.2009) (“joining] our sister circuits in holding that only those individuals who are prisoners (as defined by 42 U.S.C. § 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).”).
Because the District Court’s evidentiary rulings were not an abuse of discretion, we conclude that it did not err in entering a verdict in favor of the defendants. Indeed, *218Hale essentially concedes that if “the [defendants’] claim[ ] that [he] was believed to be stealing copy paper from work” was properly admitted into evidence, “[t]he action would be frivolous as a clear penological interest existed for job suspension absent the asserted protected conduct.”
For the reasons given, we will affirm the judgment of the District Court.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hayward William Parker, Jr., appeals the district court’s order denying his “Motion for Modification of Sentence” pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny Parker’s motion for transcripts at government expense and affirm for the reasons stated by the district court. United States v. Parker, No. 2:90-cr-00064-JAB-2 (M.D.N.C. May 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477123/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earlene M. Snowden appeals the district court’s order granting Defendant’s motion to dismiss and denying Snowden’s motion for summary judgment, application for writ of audita querela, emergency application for ex parte temporary injunction, and motion for subpoena. Snowden has also filed in this court a motion for summary judgment, seeking judgment against Defendant on the basis of fraud and theft. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order for the reasons stated by the district court. Snowden v. Heaslewood, No. 8:08-cv-00674-DKC (D.Md. March 23, 2009). We also deny Snowden’s motion for summary 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/8477125/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Lail, Ricky Stephens, Marguerite Stephens, James Spencer, Irene Santa-croce, and Doris Holt appeal the district court’s orders denying them motion pursuant to Fed.R.Civ.P. 60(b) seeking relief from the dismissal of their case pursuant to a settlement agreement and denying their motion seeking disqualification of the district court judge. On appeal, we confine our review to the issues raised in the Appellants’ brief. See 4th Cir. R. 34(b). With respect to the court’s order denying the Appellants’ Rule 60(b) motion, the Appellants’ opening brief fails to challenge the district court’s dispositive conclusion that the motion was not timely filed. Accordingly, we affirm the district court’s order. With respect to the order declining to disqualify the district court judge, we have reviewed the record and find no error. We therefore affirm that order for the reasons stated by the district court. Southern Holdings, Inc. v. Horry County, South Carolina, No. 4:02-cv-01859-RBH (D.S.C. Aug. 13, 2009). We also deny the Appellants’ emergency ex parte request for issuance of a writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials befime the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477127/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Junior Jacobs seeks to appeal the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Jacobs, No. 3:03-cr-00036-FDW-l (W.D.N.C. July 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*227fore the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477129/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Grode Martin appeals the district court’s order granting in part and denying in part his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Martin, No. 1:00-cr-00226-TSE (E.D. Va. June 2, 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/8477124/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earlene M. Snowden appeals the district court’s order granting Defendant’s motion to dismiss and denying Snowden’s motion for summary judgment, application for writ of audita querela, emergency application for ex parte temporary injunction, and motion for subpoena. Snowden has also filed in this court a motion for summary judgment, seeking judgment against Defendant on the basis of fraud and theft. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order for the reasons stated by the district court. Snowden v. Heaslewood, No. 8:08-cv-00674-DKC (D.Md. March 23, 2009). We also deny Snowden’s motion for summary 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/8477126/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodney Lail, Ricky Stephens, Marguerite Stephens, James Spencer, Irene Santa-croce, and Doris Holt appeal the district court’s orders denying them motion pursuant to Fed.R.Civ.P. 60(b) seeking relief from the dismissal of their case pursuant to a settlement agreement and denying their motion seeking disqualification of the district court judge. On appeal, we confine our review to the issues raised in the Appellants’ brief. See 4th Cir. R. 34(b). With respect to the court’s order denying the Appellants’ Rule 60(b) motion, the Appellants’ opening brief fails to challenge the district court’s dispositive conclusion that the motion was not timely filed. Accordingly, we affirm the district court’s order. With respect to the order declining to disqualify the district court judge, we have reviewed the record and find no error. We therefore affirm that order for the reasons stated by the district court. Southern Holdings, Inc. v. Horry County, South Carolina, No. 4:02-cv-01859-RBH (D.S.C. Aug. 13, 2009). We also deny the Appellants’ emergency ex parte request for issuance of a writ of mandamus. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials befime the court and argument would not aid the decisional process.
AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477128/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Junior Jacobs seeks to appeal the district court’s order granting his 18 U.S.C. § 3582(c)(2) (2006) motion for sentence reduction. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s order. United States v. Jacobs, No. 3:03-cr-00036-FDW-l (W.D.N.C. July 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*227fore the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477130/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Grode Martin appeals the district court’s order granting in part and denying in part his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Martin, No. 1:00-cr-00226-TSE (E.D. Va. June 2, 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/8477133/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony A. Blagrove appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Blagrove, No. 2:95-cr-00052-RGD-l (E.D.Va. Aug. 24, 2009). We further deny Blagrove’s motion for documents in his brother’s district court case. 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/8477134/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony A. Blagrove appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Blagrove, No. 2:95-cr-00052-RGD-l (E.D.Va. Aug. 24, 2009). We further deny Blagrove’s motion for documents in his brother’s district court case. 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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