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https://www.courtlistener.com/api/rest/v3/opinions/8477138/
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Affirmed as modified by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
lStai’r Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we modify the dismissal of the action to be *237without prejudice and affirm for the reasons stated by the district court. Dalton v. W. VA. Div. of Corr., No. 2:08-cv-01153, 2009 WL 2707407 (S.D.W.Va. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED.
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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/8477140/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
IStarr Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Dalton v. W. Va. Parole Bd., No. 2:08-ev-01216, 2009 WL 2762264 (S.D.W.Va. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477144/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerome Harris appeals the district court’s order denying his motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2) (2006). Review of the record reveals that Harris would not be entitled to a reduction because even with the benefit of Amendment 706 of the Sentencing Guidelines his advisory sentencing range of imprisonment would remain the same. Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477146/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul O. Partin, a state prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Partin v. Morgan, No. 3:08-cv-00238-HEH, 2009 WL 2421545 (EJD.Va. July 28, 2009). We deny Partin’s motion to appoint counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477196/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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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/8477137/
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Affirmed as modified by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
lStai’r Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we modify the dismissal of the action to be *237without prejudice and affirm for the reasons stated by the district court. Dalton v. W. VA. Div. of Corr., No. 2:08-cv-01153, 2009 WL 2707407 (S.D.W.Va. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED.
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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/8477139/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
IStarr Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Dalton v. W. Va. Parole Bd., No. 2:08-ev-01216, 2009 WL 2762264 (S.D.W.Va. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477141/
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Affirmed as modified by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
IStarr Dalton appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint for failure to exhaust administrative remedies. We have reviewed the record and find no reversible error. Accordingly, we modify the dismissal of the action to be without prejudice and affirm as modified for the reasons stated by the district court. Dalton v. W. Va. Div. of Corr., No. 2:08-cv-01151, 2009 WL 2762449 (S.D.W.Va. Aug. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED.
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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/8477145/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul O. Partin, a state prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Partin v. Morgan, No. 3:08-cv-00238-HEH, 2009 WL 2421545 (EJD.Va. July 28, 2009). We deny Partin’s motion to appoint counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477147/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
. Ivory Peters, Jr., appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Peters, No. 3:06-cr-00203-REP-6 (E.D.Va. July 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477150/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Alan Miller appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) civil rights action and denying reconsideration of that order. On appeal, we confine our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Miller’s brief alleges no error committed by the district court. We therefore find Miller has forfeited appellate review. Accordingly, we affirm the district court’s orders. Further, we deny *246Miller’s motion for transcripts at Government expense. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477197/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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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/8477149/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Alan Miller appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) civil rights action and denying reconsideration of that order. On appeal, we confine our review to the issues raised in the Appellant’s Brief, see 4th Cir. R. 34(b), and Miller’s brief alleges no error committed by the district court. We therefore find Miller has forfeited appellate review. Accordingly, we affirm the district court’s orders. Further, we deny *246Miller’s motion for transcripts at Government expense. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477152/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rickey Smith appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Burnell, No. 4:08-cv-01089-TLW, 2009 WL 2762510 (D.S.C. Aug. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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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/8477154/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
M.L. Denese Slaey appeals from the district court’s order granting summary judgment in favor of James E. Adams and Kenya S. Mann in her action filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 408 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and the briefs submitted by the parties, and we find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Slaey v. Adams, No. 1:08-cv-00354-LO-TCB, 2008 WL 5377937 (E.D. Va. filed Dec. 23, 2008 & entered Dec. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*257fore 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/8477156/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alphonso Davis appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. On appeal, Davis contends that he should be resen-tenced under Amendment 706 of the Sentencing Guidelines because the district court incorrectly categorized him as a career offender. See U.S. Sentencing Guidelines Manual (“USSG”) § 2Dl.l(c) (2007 & Supp.2008); USSG App. C Amend. 706; see also USSG § 4B1.1. We note that Davis’ sentence was not determined by his status as a career offender. Rather, he was sentenced to the statutory mandatory minimum term under 21 U.S.C. § 841(b)(1)(A) (2006). Therefore, Davis is not eligible for a sentencing reduction under the amendment to the guidelines. Accordingly, we affirm the district court’s *265order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the coui't 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/8477158/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Demond Byers appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Byers, No. 3:01-cr-00002-FDW-3 (W.D.N.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477160/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chester L. Hickman, Jr., appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A (b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hickman v. McDonnell, No. 2:09-ev-00163-RAJ-TEM (E.D.Va. Apr. 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court *282and 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/8477165/
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ORDER
Plaintiff Robert Davis, a Vietnam veteran, was denied a claim for service-connected disability benefits by the Department of Veterans Affairs and retained Attorney Daniel Krasnegor from the law firm Le-Clair Ryan P.C. (“LeClair”) (formerly Wright, Robinson, Osthimer & Tatum) to assist him in challenging the denial of his claim. Davis was dissatisfied with the lawyer’s handling of his claim and filed suit against the law firm. The district court dismissed the complaint for lack of subject-matter jurisdiction and also ruled that Davis had failed to state a claim. We affirm.
Davis is a Vietnam veteran, as previously stated, who served in active military service from 1961 until 1965 when he was *396honorably discharged. In 1991 he was diagnosed with Post Traumatic Stress Disorder and applied for service-connected disability benefits two years later in 1993. From 1993 to 2002, Davis represented himself in a number of proceedings before the Department of Veteran Affairs (“DVA”), the Board of Veteran Appeals (“BVA”), and the U.S. Court of Appeals for Veterans Claims (“CAVC”) where his claim was initially denied but thereafter was eventually remanded back to the DVA on appeal.
Davis retained Krasnegor in 2002 to represent him at the remanded hearing but his claim was again denied by the DVA in 2004 and also denied by the BVA in 2006. While the appeal before the CAVC was pending, Davis requested that Krasne-gor file a waiver (order) to bar Judge Kennedy, a BVA judge who had twice previously denied his claim, from serving on any future panel that decided Davis’s request for benefits if the CAVC remanded the case (which it did in 2007). Krasne-gor responded to this request by informing Davis that it was his legal opinion that he could not make such a request unless Judge Kennedy had committed some extreme impropriety. Following the CAVC remand, Davis and Krasnegor entered into a contingency fee agreement where Davis agreed to pay the law firm 20% of any benefits awarded less any fees paid to the firm under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Shortly after signing the contingency fee agreement, Davis requested that Krasnegor file a waiver to prevent his claim from being remanded back to the DVA. No waiver was ever filed and on September 30, 2007, the case was again remanded to the DVA. Davis then terminated the contract with the law firm on October 1, 2007. Thereafter, on October 2, 2007, LeClair filed an attorney’s lien for 20% of any future benefits if granted and informed Davis that it would refund him for any legal fees that had already been paid under the EAJA. Davis was finally granted benefits on August 7, 2008, with Judge Kennedy on the panel, and LeClair’s lien on those benefits was $20,646. LeClair received $18,142 in EAJA fees but asserts that it has not received any amount from the awarded benefits or by Davis directly, and claims that it is still owed roughly $2,500.
When Davis filed this complaint in November 2008, he invoked diversity jurisdiction, 28 U.S.C. § 1332, claiming that LeClair had caused him “pecuniary and emotional damages” resulting from what he alleges to be legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress when Kra-segnor failed to file a request that Judge Kennedy be disqualified from serving on the panel that decided Davis’ claim for benefits. The court granted LeClair’s motion to dismiss for lack of subject matter jurisdiction concluding that Davis had failed to satisfy the $75,000 amount in controversy requirement for diversity jurisdiction. See 28 U.S.C. § 1332(a). On appeal, Davis argues that the trial court made a number of errors, both legal and factual.
When the defendant (LeClair) challenges the plaintiffs allegation of the amount in controversy, the plaintiff cannot merely rest on his complaint alone but must establish that he has satisfied the jurisdictional threshold by a preponderance of the evidence. McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844-45 (7th Cir.2009); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir.2006). To satisfy the amount in controversy requirement, the plaintiff “must come forward with competent proof that [he has] satisfied the jurisdictional threshold and not simply point to the theoretical possibility of recovery for certain catego*397ries of damages.” McMillian, 567 F.3d at 845.
In this ease, LeClair contested the amount in controversy asserting that the dispute is limited to $2,500, the amount LeClair claims that Davis still owes above what the EAJA already has paid. Since LeClair contested the amount in controversy, Davis was required to establish how his claims fulfilled the jurisdictional threshold. On appeal Davis responds that LeClair wrongfully received the $18,142 in EAJA fees and repeats the same arguments he made in his complaint. But Davis’ complaint lacks “competent proof’ that he could prove damages for legal malpractice, breach of contract/fiduciary duty, and intentional infliction of emotional distress that would satisfy the jurisdictional threshold. See McMillian, 567 F.3d at 845. Without question Davis obtained benefits with LeClair’s assistance but the plaintiff has failed to demonstrate how his benefits were either reduced or delayed by the law firm’s faulty representation. Further, he has failed to provide evidence to substantiate his damages claim and relies upon only speculation that he can meet the jurisdictional threshold. Since Davis failed to offer evidence to satisfy the jurisdictional threshold, we are convinced that the district judge properly determined that it lacked subject-matter jurisdiction to address Davis’s claims and because we have found that the district court lacked subject-matter jurisdiction, we need not address LeClair’s alternative argument that Davis’s complaint fails to state a claim.
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/8477151/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rickey Smith appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Smith v. Burnell, No. 4:08-cv-01089-TLW, 2009 WL 2762510 (D.S.C. Aug. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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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/8477153/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
M.L. Denese Slaey appeals from the district court’s order granting summary judgment in favor of James E. Adams and Kenya S. Mann in her action filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 408 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and the briefs submitted by the parties, and we find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Slaey v. Adams, No. 1:08-cv-00354-LO-TCB, 2008 WL 5377937 (E.D. Va. filed Dec. 23, 2008 & entered Dec. 24, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials be*257fore 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/8477155/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alphonso Davis appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion. On appeal, Davis contends that he should be resen-tenced under Amendment 706 of the Sentencing Guidelines because the district court incorrectly categorized him as a career offender. See U.S. Sentencing Guidelines Manual (“USSG”) § 2Dl.l(c) (2007 & Supp.2008); USSG App. C Amend. 706; see also USSG § 4B1.1. We note that Davis’ sentence was not determined by his status as a career offender. Rather, he was sentenced to the statutory mandatory minimum term under 21 U.S.C. § 841(b)(1)(A) (2006). Therefore, Davis is not eligible for a sentencing reduction under the amendment to the guidelines. Accordingly, we affirm the district court’s *265order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the coui't 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/8477157/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Demond Byers appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000). Thus, we affirm the district court’s order for the reasons stated there. See United States v. Byers, No. 3:01-cr-00002-FDW-3 (W.D.N.C. July 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477164/
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ORDER
PER CURIAM.
The motion by the appellant, Mark Brown, for a stay of execution is denied, and the panel affirms the district court for the reasons set forth in the district court opinion, Reynolds (Brown) v. Strickland, No. 2:10-cv-27 (S.D.Ohio Feb. 2, 2010), and in our recent opinion in Cooey (Biros) v. Strickland, 589 F.3d 210 (6th Cir.2009).
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/8477198/
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ORDER
Robert R. Farrell, Sr., has complied with the court’s order of May 20, 2009. Upon consideration thereof, IT IS ORDERED THAT:
(1) The court’s April 9, 2009 dismissal order and mandate are hereby, vacated and recalled, and the petition for review is reinstated.
(2) The Merit Systems Protection Board’s brief is due within 21 days of the date of filing of this order.
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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/8477200/
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ORDER
Robert L. Pollock has complied with the court’s order of June 9, 2009.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s May 22, 2009 dismissal order and mandate are hereby, vacated and recalled, and the petition for review is reinstated.
(2) The United States Postal Service brief is due within 43 days of the date of filing of this order.
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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/8477167/
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ORDER
Mary Williams, who suffers from schi-zoaffective disorder **, was fired from Macon Resources, Inc., after she exhibited threatening behavior toward staff after her discharge. She sued Macon for disability discrimination among other things. A magistrate judge, presiding by consent, understood her complaint to raise a claim under the Americans with Disabilities Act, and granted summary judgment in favor of Macon. The court found: 1) that Williams had failed to establish that her medical condition limited her from any major life activities; 2) that even if Macon perceived her as disabled, she had failed to offer any evidence to rebut Macon’s otherwise legitimate reason for discharging her — that Macon considered her dangerous; and 3) that she offered no evidence that similarly-situated, non-disabled employees were treated more favorably.
On appeal, Williams narrates her account of the termination and makes a generalized assertion of discrimination, but she fails to identify any error in the magistrate judge’s reasoning or articulate any basis for disturbing the judgment. She cites no legal authority and makes no reference to the record. A litigant is required to supply “ ‘an argument consisting of more than a generalized assertion of error, with citations to supporting authority.’” Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008)(quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)); see Fed. R.App. P. 28(a)(9)(A). And although we construe pro se filings liberally, we are unable to ascertain a cogent argument in William’s brief. See Anderson, 241 F.3d at 545.
DISMISSED.
“Schizoaffective disorder is a condition in which a person experiences a combination of schizophrenia symptoms — such as hallucinations or delusions — and of mood disorder symptoms, such as mania or depression.” (Mayo Clinic Definition of Schizoaffective Disorder, http://www.mayocli nic.com/health/schizoaffective-disor-der/DS00866 (last visited January 28, 2010)).
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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/8477170/
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ORDER
In September 2002, Dean Ford advised his employer that he was suffering from Post Traumatic Stress Disorder resulting from a number of assaults and harassment from his coworkers and requested his employer to allow him to take a disability leave. Thereafter his employer, Allegheny Ludlum, consented to his request. Some three years later, Ford contacted the company once again and asked that he be allowed to return to work. Ludlum directed Ford to document his treatment as well as any program of therapy and/or medications prescribed before they could grant him leave to return. Ford did not supply any of these documents nor the necessary treatment program and/or medications but he did offer a note from a non-treating psychiatrist that read simply, “[Ford] states he has recovered.” Ford failed to submit any additional documentation after Allegheny made a second request. As a result, Ford was never reinstated. On October 12, 2006, Ford filed a suit against Allegheny claiming that, by refusing to reinstate him, Allegheny discriminated against him under the Americans with Disabilities Act. Concluding that Ford had failed to furnish the necessary evidence to substantiate that he was a qualified individual with a disability, or that Allegheny had treated him less favorably than others similarly situated, the district court granted Allegheny’s motion for summary judgment.
On appeal, Ford asserts generally that the district court did not consider all the pertinent facts when granting summaiy judgment, but he fails to elaborate on this contention, much less explain how the district court erred, or direct our attention to any part of the record or much less any legal authority in support of his theory. We are mindful of the challenges facing pro se litigants, and we construe their filings liberally, but pro se litigants are not exempt from procedural rules. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008). Thus, Ford, like other litigants, was required to submit a brief containing his “contentions and the reasons for them, with citations to the authorities and parts of the record” on which he relies. See Fed. R.App. P. 28(a)(9)(A); Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008). A “generalized assertion of error” is insufficient; to ensure uniform administration of justice we must insist that all litigants comply with procedural rules and that their briefs articulate some basis for disturbing the district court’s judgment. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
After reviewing his submissions, we are unable to recognize any argument in Ford’s brief that casts doubt on the district court’s decision. See id. By failing to comply with Rule 28(a)(9), Ford has forfeited appellate review of the district *400court’s decision. See Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 527 (7th Cir.2003); Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998). The appeal is DISMISSED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477172/
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ORDER
Fredrick Lenover is a federal prisoner who moved to vacate his sentence under 28 U.S.C. § 2255. Lenover and four codefen-dants were convicted of conspiring to distribute methamphetamine and to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. § 846 and § 841(a)(1); ten additional codefendants entered into plea agreements with the government. Lenover was sentenced to 350 months’ imprisonment. We affirmed the convictions, United States v. Gray, 410 F.3d 338, 349 (7th Cir.2005), and Lenover’s sentence, United States v. Lenover, 182 Fed.Appx. 563, 566 (7th Cir.2006).
Lenover’s § 2255 motion alleged that trial counsel provided ineffective assistance because he failed to undertake a good-faith analysis of the case and thus provided unreasonable advice that caused Lenover to reject a plea offer he otherwise would have accepted. The district court denied Lenover’s § 2255 motion without holding an evidentiary hearing. We issued a cer-tifícate of appealability on the question of whether trial counsel provided ineffective assistance during the plea negotiations.
Lenover argues on appeal that the district court erred by denying his § 2255 motion without holding an evidentiary hearing. Lenover is entitled to an eviden-tiary hearing under 28 U.S.C. § 2255(b) only if he has alleged facts that, if proven, would entitle him to relief. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir.2009). To prevail on his ineffective-assistance claim, Lenover must present (1) allegations that, if proven, demonstrate that counsel’s performance during plea negotiations was objectively unreasonable, and (2) evidence that the likelihood he was prejudiced by counsel’s constitutionally deficient performance is better than negligible. See Strickland v. Washington, 466 *401U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Julian v. Bartley, 495 F.3d 487, 495, 499-500 (7th Cir.2007). “Ineffective-assistance claims often require an evi-dentiary hearing because they frequently allege facts that the record does not fully disclose.” Osagiede v. United States, 543 F.3d 399, 408 (7th Cir.2008).
The government acknowledged at oral argument that it had sent a letter to Len-over’s trial counsel requesting his take on Lenover’s allegations. But trial counsel never responded, and the government never followed up. We believe that hearing from trial counsel would be useful, so we VACATE the judgment and REMAND for the limited purpose of soliciting his testimony.
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https://www.courtlistener.com/api/rest/v3/opinions/8477176/
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MEMORANDUM **
Robert Guichard appeals pro se from various orders of the district court in his trademark infringement action, including summary judgment and an award of attorney’s fees. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment, Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1156 (9th Cir.2001), and for an abuse of discretion its award of attorney’s fees, Cairns v. Franklin Mint Co., 292 F.3d 1139, 1156 (9th Cir.2002). We affirm.
The district court properly granted summary judgment in favor of Universal on Guichard’s Lanham Act claim. See Chance, 242 F.3d at 1154, 1159 (affirming summary judgment where plaintiff failed to raise a triable issue as to whether it was the first to use the disputed mark “in commerce”). The district court properly denied Guichard’s motion under Federal Rule of Civil Procedure 56(f) because he failed to “show how allowing additional discovery would have precluded summary judgment.” Id. at 1161 n. 6 (internal citation and quotation marks omitted); see also Qualls by & Through Qualls v. Blue Cross of Cal., 22 F.3d 839, 844 (9th Cir.1994) (reviewing de novo the district court’s implicit denial of a Rule 56(f) motion).
The district court properly granted summary judgment on Guichard’s claim under California Business and Professions Code section 17200 because Guichard failed to demonstrate an unfair practice or resulting injury. See Sprewell v. Golden State Warriors, 266 F.3d 979, 992 (9th Cir.2001) (noting that a section 17200 claim requires plaintiff to demonstrate an unlawful or unfair business practice).
*436The district court did not abuse its discretion in its award of attorney’s fees because the record supports the finding that the case was groundless and unreasonable and supports the amount of fees awarded. See Cairns, 292 F.3d at 1156 (explaining the appropriate bases and amount of fees awarded under the Lanham Act).
The district court did not abuse its discretion by denying Guichard’s recusal motion because the alleged bias stemmed from information the judge learned from his participation in a case rather than from an extrajudicial source, and because “a reasonable person with knowledge of all the facts would [not] conclude that the judge’s impartiality might reasonably be questioned.” United States v. Hernandez-Escarsega, 886 F.2d 1560, 1581 (9th Cir.1989) (internal quotation marks and citation omitted) (reviewing for an abuse of discretion district court’s decision whether to grant a recusal motion).
Guichard’s request for judicial notice is denied. See Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n. 2 (9th Cir.2006) (declining to take judicial notice of documents that were not relevant to the resolution of the appeal).
Guichard’s remaining contentions are unavailing.
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 **
Arizona state prisoner Brian Clem appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging his five consecutive sentences imposed following his guilty-plea conviction for three counts of manslaughter and two counts of aggravated assault in connection with the same drunk driving incident that produced five victims. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Clem contends that his five consecutive sentences totaling 22 years imprisonment violate the Double Jeopardy Clause under the same-element test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because they resulted from a single drunk driving incident. Clem further contends that the rule of lenity requires enforcement of Arizona Revised Statute section 13-116, which prohibits imposition of consecutive sentences for the offenses resulting from the same “act.” Finally, Clem contends that Blockburger and its progeny should be reversed.
Clem failed to demonstrate that the state court’s imposition of five consecutive sentences is contrary to or an unreasonable application of controlling federal law. See 28 U.S.C. § 2254(d)(1).
“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. However, even if the multiple charges constitute the “same offense” under Blockburger, the imposition of cumulative punishment does not violate the Double Jeopardy Clause as long as it does not contradict legislative intent. See Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”).
Arizona courts have consistently held that A.R.S. § 13-116 does not prohibit consecutive sentences for single-act-multiple-victims crimes. See, e.g., State v. Henley, 141 Ariz. 465, 467-68, 687 P.2d 1220 (1984); State v. White, 160 Ariz. 377, *438380, 773 P.2d 482 (1989). Accordingly, Clem’s consecutive sentences do not violate the Double Jeopardy Clause. See Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir.1982) (rejecting petitioner’s argument “that the Arizona legislature did not authorize consecutive sentences for multiple deaths caused by a single act of drunk driving, and that such sentences violate the Double Jeopardy Clause”); see also Walker v. Endell, 850 F.2d 470, 476 (9th Cir.1987). Further, we must defer to Arizona’s interpretation of its own laws. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir.2003).
Finally, we do not we have the authority to revisit or reverse the controlling Supreme Court law. Musladin v. Lamarque, 555 F.3d 830, 837 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8477181/
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MEMORANDUM **
Joseph D. Clements appeals from the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the retroactive application of Amendment 706 to the Sentence Guidelines provisions governing crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Clements contends that the district court erred by denying his motion for a sentence reduction under Amendment 706 because his sentence was based, in part, on a sentencing range calculated under the Drug Quantity Table in U.S.S.G. § 2D1.1. This contention fails because Clements qualified as a career offender under U.S.S.G. § 4B1.1. Because the district court sentenced Clements based on a sentencing range calculated under § 4B1.1, he is not eligible for a sentence reduction under Amendment 706. See United States v. Wesson, 583 F.3d 728, 731 (9th Cir. 2009).
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 **
Joseph Jefferson appeals from the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the retroactive application of Amendment 706 to the Sentence Guidelines provisions governing crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*510Jefferson contends that the district court erred by denying his motion for a sentence reduction under Amendment 70€ because his sentence was based, in part, or a sentencing range calculated under thE Drug Quantity Table in U.S.S~G. § 2D1.1, This contention fails because Jeffersor qualified as a career offender undei U.S.S.G. § 4B1.1. Because the district court sentenced Jefferson based on a sentencing range calculated under § 4B1.1, hc is not eligible for a sentence reductior under Amendment 706. See United States v. Wesson, 583 F.3d 728, 731 (9th Cir 2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8477168/
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ORDER
Mary Williams, who suffers from schi-zoaffective disorder **, was fired from Macon Resources, Inc., after she exhibited threatening behavior toward staff after her discharge. She sued Macon for disability discrimination among other things. A magistrate judge, presiding by consent, understood her complaint to raise a claim under the Americans with Disabilities Act, and granted summary judgment in favor of Macon. The court found: 1) that Williams had failed to establish that her medical condition limited her from any major life activities; 2) that even if Macon perceived her as disabled, she had failed to offer any evidence to rebut Macon’s otherwise legitimate reason for discharging her — that Macon considered her dangerous; and 3) that she offered no evidence that similarly-situated, non-disabled employees were treated more favorably.
On appeal, Williams narrates her account of the termination and makes a generalized assertion of discrimination, but she fails to identify any error in the magistrate judge’s reasoning or articulate any basis for disturbing the judgment. She cites no legal authority and makes no reference to the record. A litigant is required to supply “ ‘an argument consisting of more than a generalized assertion of error, with citations to supporting authority.’” Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008)(quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)); see Fed. R.App. P. 28(a)(9)(A). And although we construe pro se filings liberally, we are unable to ascertain a cogent argument in William’s brief. See Anderson, 241 F.3d at 545.
DISMISSED.
“Schizoaffective disorder is a condition in which a person experiences a combination of schizophrenia symptoms — such as hallucinations or delusions — and of mood disorder symptoms, such as mania or depression.” (Mayo Clinic Definition of Schizoaffective Disorder, http://www.mayocli nic.com/health/schizoaffective-disor-der/DS00866 (last visited January 28, 2010)).
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ORDER
In September 2002, Dean Ford advised his employer that he was suffering from Post Traumatic Stress Disorder resulting from a number of assaults and harassment from his coworkers and requested his employer to allow him to take a disability leave. Thereafter his employer, Allegheny Ludlum, consented to his request. Some three years later, Ford contacted the company once again and asked that he be allowed to return to work. Ludlum directed Ford to document his treatment as well as any program of therapy and/or medications prescribed before they could grant him leave to return. Ford did not supply any of these documents nor the necessary treatment program and/or medications but he did offer a note from a non-treating psychiatrist that read simply, “[Ford] states he has recovered.” Ford failed to submit any additional documentation after Allegheny made a second request. As a result, Ford was never reinstated. On October 12, 2006, Ford filed a suit against Allegheny claiming that, by refusing to reinstate him, Allegheny discriminated against him under the Americans with Disabilities Act. Concluding that Ford had failed to furnish the necessary evidence to substantiate that he was a qualified individual with a disability, or that Allegheny had treated him less favorably than others similarly situated, the district court granted Allegheny’s motion for summary judgment.
On appeal, Ford asserts generally that the district court did not consider all the pertinent facts when granting summaiy judgment, but he fails to elaborate on this contention, much less explain how the district court erred, or direct our attention to any part of the record or much less any legal authority in support of his theory. We are mindful of the challenges facing pro se litigants, and we construe their filings liberally, but pro se litigants are not exempt from procedural rules. Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008). Thus, Ford, like other litigants, was required to submit a brief containing his “contentions and the reasons for them, with citations to the authorities and parts of the record” on which he relies. See Fed. R.App. P. 28(a)(9)(A); Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008). A “generalized assertion of error” is insufficient; to ensure uniform administration of justice we must insist that all litigants comply with procedural rules and that their briefs articulate some basis for disturbing the district court’s judgment. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001).
After reviewing his submissions, we are unable to recognize any argument in Ford’s brief that casts doubt on the district court’s decision. See id. By failing to comply with Rule 28(a)(9), Ford has forfeited appellate review of the district *400court’s decision. See Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 527 (7th Cir.2003); Mathis v. New York Life Ins. Co., 133 F.3d 546, 548 (7th Cir.1998). The appeal is DISMISSED.
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https://www.courtlistener.com/api/rest/v3/opinions/8477171/
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ORDER
Fredrick Lenover is a federal prisoner who moved to vacate his sentence under 28 U.S.C. § 2255. Lenover and four codefen-dants were convicted of conspiring to distribute methamphetamine and to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. § 846 and § 841(a)(1); ten additional codefendants entered into plea agreements with the government. Lenover was sentenced to 350 months’ imprisonment. We affirmed the convictions, United States v. Gray, 410 F.3d 338, 349 (7th Cir.2005), and Lenover’s sentence, United States v. Lenover, 182 Fed.Appx. 563, 566 (7th Cir.2006).
Lenover’s § 2255 motion alleged that trial counsel provided ineffective assistance because he failed to undertake a good-faith analysis of the case and thus provided unreasonable advice that caused Lenover to reject a plea offer he otherwise would have accepted. The district court denied Lenover’s § 2255 motion without holding an evidentiary hearing. We issued a cer-tifícate of appealability on the question of whether trial counsel provided ineffective assistance during the plea negotiations.
Lenover argues on appeal that the district court erred by denying his § 2255 motion without holding an evidentiary hearing. Lenover is entitled to an eviden-tiary hearing under 28 U.S.C. § 2255(b) only if he has alleged facts that, if proven, would entitle him to relief. See Sandoval v. United States, 574 F.3d 847, 850 (7th Cir.2009). To prevail on his ineffective-assistance claim, Lenover must present (1) allegations that, if proven, demonstrate that counsel’s performance during plea negotiations was objectively unreasonable, and (2) evidence that the likelihood he was prejudiced by counsel’s constitutionally deficient performance is better than negligible. See Strickland v. Washington, 466 *401U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Julian v. Bartley, 495 F.3d 487, 495, 499-500 (7th Cir.2007). “Ineffective-assistance claims often require an evi-dentiary hearing because they frequently allege facts that the record does not fully disclose.” Osagiede v. United States, 543 F.3d 399, 408 (7th Cir.2008).
The government acknowledged at oral argument that it had sent a letter to Len-over’s trial counsel requesting his take on Lenover’s allegations. But trial counsel never responded, and the government never followed up. We believe that hearing from trial counsel would be useful, so we VACATE the judgment and REMAND for the limited purpose of soliciting his testimony.
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https://www.courtlistener.com/api/rest/v3/opinions/8477173/
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ORDER
In 2007 the United States charged Salem Fuad Aljabri in a superseding indictment with nine counts of wire fraud in violation of 18 U.S.C. § 1343, five counts of money laundering in violation of 18 U.S.C. § 1956(a) (1) (A) (i), and eleven counts of structuring under 31 U.S.C. § 5324(a)(3). The case went to trial and the jury returned a verdict of guilty on all counts.1 *404Aljabri was then sentenced to a prison term of 90 months. On appeal Aljabri challenges the sufficiency of the evidence supporting his money-laundering and structuring convictions. The government concedes that Aljabri’s money-laundering convictions must be vacated, and we accept this concession. The structuring counts were supported by sufficient evidence however, and we therefore affirm Aljabri’s convictions on those counts.
I. Background
Although it led to a lengthy 25-count indictment, Aljabri’s criminal activity was rather simple. Aljabri, along with his co-defendant Hope Cordova, schemed to defraud and obtain money from the United States Department of Agriculture Food and Nutrition Service’s Food Stamp Program (“program”) by purchasing program benefits (“food stamps”) from customers for discounted amounts of cash. This relatively common form of food-stamp fraud is sometimes referred to as “trafficking.” Aljabri was the owner of the Sobba Food Mart, a neighborhood grocery store in Chicago that was enrolled as an authorized retailer in the federal food-stamp program. From March 2003 to June 2004, Aljabri, through Sobba, unlawfully purchased program benefits from food-stamp recipients. After redeeming over $1 million in program benefits, Sobba was terminated from the program. In 2005 Aljabri was once again able to access program benefits by instructing Cordova, his girlfriend, to open a new store, the White Bird grocery store. White Bird successfully enrolled in the program, and Aljabri resumed his trafficking scheme. Aljabri was arrested in August of 2006 for this fraudulent activity and charged with multiple counts of wire fraud, money laundering, and structuring.
A. Wire Fraud
The government was able to pursue wire-fraud charges against Aljabri because of the manner in which program benefits must be processed. While the food-stamp program was formerly coupon-based, it no longer operates in that manner. Instead, program recipients — at least those in Illinois — are provided with a “Link card,” which functions much like a debit card. Benefits are automatically credited to recipients’ Link card accounts each month. Accredited retailers, such as Sobba and White Bird, are provided with “Link card machines.” After selecting food items, the program recipient swipes his Link card through this machine. The machine then interfaces with a computer system located in Austin, Texas, which maintains data on each Link card account and approves (or rejects) all program-benefit transactions. At the end of each day, the Texas computer then tallies the totals owed to each retailer and correspondingly credits that retailer’s account.
The food-stamp program explicitly prohibits the redemption of benefits for cash, but the government presented overwhelming evidence that Aljabri repeatedly engaged in such behavior. In addition to testimony from program recipients who admitted selling their benefits to Aljabri for cash, the government presented convincing circumstantial evidence that Alja-bri was defrauding the program. For instance, from March of 2003 until June of 2004, Sobba redeemed over $1.2 million in program benefits, which accounted for over 97% of its total business during that time. Many of these Link card transactions involved “purchases” exceeding $100 in value even though Sobba apparently had a limited food selection and no shopping carts or baskets. Finally, Mohammad *405Malkawi, who purchased Sobba from Alja-bri, testified that despite the fact that he had improved the store’s facilities and expanded its inventory, his successor store averaged $14,000 to $17,000 in monthly business, and only half of that involved Link transactions. The government presented similar evidence (both direct testimony from program recipients as well as circumstantial evidence based on the nature and quantity of Link transactions processed) to show that Aljabri conducted similar fraud at the White Bird grocery store.
B. Money Laundering
The government pursued money-laundering charges against Aljabri on the theory that Aljabri would use the cash he received from earlier trafficking transactions in order to acquire program benefits from subsequent “customers.” The premise was that because each time Aljabri illegally purchased program benefits he needed to front the cash before getting reimbursed at the end of the day by the Link system, he required a steady stream of funds to keep his operation afloat. The government presented evidence that Alja-bri would routinely make large cash withdrawals from his designated Link account in order to facilitate these illegal payments to program recipients. To bolster its case that these withdrawals were made for the purpose of trafficking and not for some legitimate pursuit, the government introduced evidence that Aljabri did not generally use cash to cover other operational expenses such as inventory purchases, utilities, and rent. The government argued to the juiy that in this way Aljabri knowingly used the “proceeds” of one instance of wire fraud to “promote” another.
C. Structuring
As we have noted, Aljabri’s trafficking operation required Aljabri to keep large sums of cash on hand in order to transact business with program recipients. Sobba maintained an account with the Cole Taylor Bank in Chicago. All of Sobba’s Link reimbursements were wired to this account. In order to fund future Link purchases, Aljabri obtained cash from this account by writing checks to cash. The government presented evidence that from March 2003 through June 2004, Aljabri cashed at least 155 such checks from this account, withdrawing approximately $942,485 in total. Excluding those checks cashed in the days immediately preceding Sobba’s disqualification from the program, Aljabri only cashed two checks in excess of $10,000. Counts 12-13 and 15-22 pertained to ten separate transactions that the government asserted were instances of structuring. In each instance the government alleged that Aljabri structured the transaction to avoid the $10,000 threshold for currency transaction reporting requirements by purposefully arranging to withdraw an amount in excess of $10,000 by cashing a series (between two and four) of checks that summed to a total greater than $10,000 but had individual values below this amount. The government further alleged that for each count the financial transactions involved were all “conducted” on a single date. In addition to this circumstantial evidence, Immigration and Customs Enforcement Special Agent Tamara Yoder testified that following his arrest, Aljabri, who had waived his right to remain silent, admitted he was aware of the federal reporting requirements for currency transactions in excess of $10,000.
II. Discussion
On appeal Aljabri argues the evidence was insufficient to convict him of money laundering and structuring. In considering a sufficiency-of-the-evidence challenge, “[w]e review the evidence at trial in the *406light most favorable to the government and ‘will overturn a conviction based on insufficient evidence only if the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.’ ” United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir.2009) (quoting United States v. Severson, 569 F.3d 683, 688 (7th Cir.2009)).
A. Money Laundering
Aljabri was convicted of five counts of money laundering in violation of 18 U.S.C. § 1956(a)(l)(A)(i), which prohibits the use of “the proceeds of some form of unlawful activity” in a financial transaction “with the intent to promote the carrying on of specified unlawful activity.” To convict Al-jabri of money laundering, the government was required to prove the following four elements beyond a reasonable doubt: (1) Aljabri knowingly conducted the charged financial transactions; (2) those transactions involved the proceeds of illegal activity; (3) Aljabri knew the property involved in these transactions represented illegal proceeds; and (4) Aljabri conducted the charged transactions with the intent to promote the carrying on of the unlawful activity.
Aljabri contends that the government did not present sufficient evidence that the charged financial transactions involved “proceeds” of illegal activity as that term has been defined in recent opinions of this circuit and of the Supreme Court. The government concedes this error and agrees that Aljabri’s money-laundering convictions (Counts 7-11) should be vacated.
The term “proceeds” is not defined in the money-laundering statute. In United States v. Scialabba, 282 F.3d 475, 475 (7th Cir.2002), this court held that “at least when the crime entails voluntary, business-like operations, ‘proceeds’ must be net income [rather than gross income]; otherwise the predicate crime merges into money laundering (for no business can be carried on without expenses) and the word ‘proceeds’ loses operational significance.” The Supreme Court’s recent decision in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), addressed this issue; unfortunately, Santos yielded a fractured result. As we have recently explained:
Four Justices in Santos concluded that ‘proceeds’ in § 1956 always means net income. Four concluded that the word always means gross income. Justice Stevens concluded that the meaning depends on the nature of the crime — that it means net income for unlicensed gambling (the subject of Santos and Scialab-ba) but could mean gross income for drug rings.
United States v. Hodge, 558 F.3d 630, 633 (7th Cir.2009).
Since the government concedes that the “net income” definition applies in this case, we need not decide whether, under Justice Stevens’s approach, a conviction for money laundering involving proceeds from wire fraud (for food-stamp trafficking) would require the use of “net income” or “gross income” from that fraud.2 See id. at 634 (“Such a concession cannot bind the court to one legal rule rather than another, but it can forfeit the benefit of a particular rule for one case.”). The government further acknowledges that at trial it failed to introduce sufficient evidence to satisfy its burden of proof concerning this “net proceeds” element of the money-laundering offense. While the government presented evidence that Aljabri used Link funds to *407pay for program benefits, it never articulated a theory as to why those food-stamp purchases should properly be considered a reinvestment of the net profits of Aljabri’s fraudulent enterprise.
B. Structuring
Aljabri was convicted of ten counts (Counts 12-13 and 15-22) of structuring under 31 U.S.C. § 5324(a)(3). Federal law requires financial institutions to file a Currency Transaction Report with the government for financial transactions in which a customer makes a “deposit, withdrawal, exchange of currency or other payment or transfer ... involving] ... currency of more than $10,000.” 31 C.F.R. § 103.22(b)(1); 31 U.S.C. § 5313(a). Section 5324(a)(3) then prohibits individuals from deliberately “structuring” their financial transactions “for the purpose of evading th[ose] reporting requirements.”
Aljabri challenges his structuring convictions on two different grounds. Aljabri first claims that he cannot legally be found guilty of structuring on Counts 17, 18, 20, 21, and 22 because the financial transactions relating to each of those five counts all took place on different days. In making this argument, Aljabri seizes on Cole Taylor’s particular method of processing checks. At Cole Taylor, “banking” activities cease for the week every Friday at 3 p.m. even though the bank remains open past 3 p.m. on Fridays and is open on Saturdays as well. Thus a customer can cash a check at Cole Taylor after 3 p.m. on a Friday, but that check will not be officially processed until the following Monday. In such a circumstance, the bank’s records will reflect the time that the check was actually presented to be cashed (say 4:57 p.m.), but will provide the date that corresponds to the following Monday (or whatever is the next “banking” day).
Aljabri argues that with respect to five of the structuring counts, the government misled the jury to believe that the alleged transactions took place on a single day when they were in fact spread out over multiple days. The problem with this argument is that financial transactions need not occur, or even be processed, on a single date in order to constitute structuring. Treasury regulations have defined “structuring” as follows:
[A] person structures a transaction if that person ... conducts or attempts to conduct one or more transactions in currency, in any amount, at one or more financial institutions, on one or more days, in any manner, for the purpose of evading the reporting requirements under section 103.22 of this part. ‘In any manner’ includes, but is not limited to, the breaking down of a single sum of currency exceeding $10,000 into smaller sums, including sums at or below $10,000, or the conduct of a transaction, or series of currency transactions, including transactions at or below $10,000. The transaction or transactions need not exceed the $10,000 reporting threshold at any single financial institution on any single day in order to constitute structuring unthin the meaning of this definition.
31 C.F.R. § 103.11(gg) (emphasis added). Additionally, in United States v. Davenport, 929 F.2d 1169, 1173 (7th Cir.1991), this court held that § 5324(a)(3) can apply to financial transactions that were conducted on separate days. There is no color-able argument for why § 5324(a)(3) should be confined only to transactions that occur during a single day; in fact, as the government correctly points out, such a construction would undermine the purpose of the provision by providing a roadmap for le-*408gaily evading the reporting requirements.3
Finally, Aljabri attacks his structuring convictions (all of them this time) on the ground that the government failed to establish that he had the requisite intent to structure. This argument is without merit. In addition to the hefty circumstantial evidence the government presented relating to Aljabri’s consistent practice of conveniently withdrawing large sums of money in short intervals just under the $10,000 reporting threshold, there.was also the testimony of Special Agent Yoder that Aljabri acknowledged his awareness of the reporting requirements. When viewed in total, there is more than enough evidence to uphold the jury’s verdict, particularly in light of the high burden Aljabri must meet to prevail on a sufficiency challenge. See, e.g., United States v. Bustamante, 493 F.3d 879, 884 (7th Cir.2007) (“[T]he Court will reverse only if ‘the fact finder’s take on the evidence was wholly irrational.’ ” (quoting United States v. Hoogenboom, 209 F.3d 665, 669 (7th Cir.2000))).
III. Conclusion
Aljabri’s money-laundering convictions are VACATED, and his structuring convictions are AFFIRMED. This case is REMANDED to the district court for resen-tencing on the surviving wire-fraud and structuring counts.
. The district court granted the government's motion to dismiss one of the structuring *404counts, Count 14, before the case was submitted to the jury.
. Also, because of the government's conces- • sion, we need not consider whether the jury was properly instructed as to the correct definition of "net proceeds.”
. Aljabri also argues that his convictions on these five structuring counts should be vacated on the grounds that the government's theory at trial was inconsistent with the language of the superceding indictment, which alleged that each set of structured transactions was "conducted” on the same day. This "variance” claim was first raised in Aljabri's reply brief and is therefore forfeited. United States v. Boyle, 484 F.3d 943, 946 (7th Cir.2007).
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MEMORANDUM **
Arizona state prisoner Brian Clem appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging his five consecutive sentences imposed following his guilty-plea conviction for three counts of manslaughter and two counts of aggravated assault in connection with the same drunk driving incident that produced five victims. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Clem contends that his five consecutive sentences totaling 22 years imprisonment violate the Double Jeopardy Clause under the same-element test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), because they resulted from a single drunk driving incident. Clem further contends that the rule of lenity requires enforcement of Arizona Revised Statute section 13-116, which prohibits imposition of consecutive sentences for the offenses resulting from the same “act.” Finally, Clem contends that Blockburger and its progeny should be reversed.
Clem failed to demonstrate that the state court’s imposition of five consecutive sentences is contrary to or an unreasonable application of controlling federal law. See 28 U.S.C. § 2254(d)(1).
“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact that the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. However, even if the multiple charges constitute the “same offense” under Blockburger, the imposition of cumulative punishment does not violate the Double Jeopardy Clause as long as it does not contradict legislative intent. See Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”).
Arizona courts have consistently held that A.R.S. § 13-116 does not prohibit consecutive sentences for single-act-multiple-victims crimes. See, e.g., State v. Henley, 141 Ariz. 465, 467-68, 687 P.2d 1220 (1984); State v. White, 160 Ariz. 377, *438380, 773 P.2d 482 (1989). Accordingly, Clem’s consecutive sentences do not violate the Double Jeopardy Clause. See Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir.1982) (rejecting petitioner’s argument “that the Arizona legislature did not authorize consecutive sentences for multiple deaths caused by a single act of drunk driving, and that such sentences violate the Double Jeopardy Clause”); see also Walker v. Endell, 850 F.2d 470, 476 (9th Cir.1987). Further, we must defer to Arizona’s interpretation of its own laws. Himes v. Thompson, 336 F.3d 848, 852 (9th Cir.2003).
Finally, we do not we have the authority to revisit or reverse the controlling Supreme Court law. Musladin v. Lamarque, 555 F.3d 830, 837 (9th Cir.2009).
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 **
Manuel de Jesus Miranda-Lopez appeals from his guilty-plea conviction and 63-month sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Miranda-Lopez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Joseph Jefferson appeals from the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on the retroactive application of Amendment 706 to the Sentence Guidelines provisions governing crack cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*510Jefferson contends that the district court erred by denying his motion for a sentence reduction under Amendment 70€ because his sentence was based, in part, or a sentencing range calculated under thE Drug Quantity Table in U.S.S~G. § 2D1.1, This contention fails because Jeffersor qualified as a career offender undei U.S.S.G. § 4B1.1. Because the district court sentenced Jefferson based on a sentencing range calculated under § 4B1.1, hc is not eligible for a sentence reductior under Amendment 706. See United States v. Wesson, 583 F.3d 728, 731 (9th Cir 2009).
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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*747ON MOTION
ORDER
The court considers whether this appeal should be dismissed for failure to comply with this court’s June 11, 2009 order.
On June 11, 2009, this court ordered that Colida must first move in the district court for leave to proceed on appeal before asking this court for leave to proceed in forma pauperis. Pursuant to this court’s June 11, 2009 order, Colida was required within 30 days either to notify this court that he had moved in the district court for leave to proceed in forma pauperis on appeal or to pay the docketing fee. Colida has failed to do so.
Accordingly,
IT IS ORDERED THAT:
This appeal is dismissed for failure to comply with this court’s June 11, 2009 order.
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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ON MOTION
ORDER
Upon consideration of Limelight Networks, Inc.’s motion to voluntarily dismiss appeal no.2009-1486,
IT IS ORDERED THAT:
(1) The motion is granted. The revised official caption in 2009-1480 is reflected above.
(2) Each side shall bear its own costs in 2009-1486.
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ON MOTION
ORDER
Upon consideration of Michael S. Warren’s motion to voluntarily dismiss his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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JUDGMENT
PER CURIAM.
This case was considered on the record from the Federal Energy Regulatory Commission (“FERC”) and on the briefs and arguments of the parties. After fully considering the issues, the court has determined they do not warrant a published opinion. See D.C.CiR. R. 36(d). It is
Ordered and Adjudged that the consolidated petitions for review be denied.
The FERC’s regulations allow an oil pipeline to increase the rate it charges shippers to any level that does not exceed a price ceiling annually adjusted according to an inflation-based index. See 18 C.F.R. § 342.2-3 (2009). See generally Ass’n of Oil Pipe Lines v. FERC (AOPL), 83 F.3d 1424 (D.C.Cir.1996) (upholding the FERC orders establishing the indexing regime). Shippers may challenge such a rate increase by filing a complaint with the FERC alleging “reasonable grounds for asserting that ... the rate increase is so substantially in excess of the actual cost increases incurred by the carrier that the rate is unjust and unreasonable.” 18 C.F.R. § 343.2(c)(1). In the orders on review, the FERC dismissed the complaints of two shippers, BP West Coast Products LLC (“BP”) and ExxonMobil Oil Corporation (“Exxon”), against rate increases taken by a pipeline operator, SFPP, L.P. (“SFPP”). See BP W. Coast Prods. LLC v. SFPP, L.P., 121 FERC ¶ 61,243 (Dec. 14, 2007), order on reh’g, 123 FERC ¶ 61,-121 (May 5, 2008); BP W. Coast Prods. LLC v. SFPP, L.P., 118 FERC ¶ 61,261 (Mar. 29, 2007), order on reh’g, 121 FERC ¶ 61,195 (Nov. 20, 2007).
BP and Exxon argue the FERC departed from precedent without reasoned explanation when it dismissed their complaint against SFPP’s 2005 index-based increase to the rate charged on its North Line. Their complaint alleged that indexing was unnecessary because SFPP had recently increased its North Line rate under a rule that permits rate adjustments for pipelines substantially under-recovering their cost of service. See 18 C.F.R. § 342.4(a). The shippers argued that SFPP’s rate adjustment fully compensated the pipeline for its annual cost increases such that an index-based increase on top of the new rate would be unjust or unreasonable. In dismissing the complaint, the FERC acknowledged that it had previously denied SFPP an index-based increase to its East Line rate on similar grounds. See BP W. Coast, 121 FERC ¶ 61,195, at P7 (citing SFPP, L.P., 117 FERC ¶ 61,271 (Dec. 6, 2006)). The FERC distinguished the East Line case, however, noting that in this case the pipeline continued to under-recover its cost of service despite both rate increases, whereas the proposed index-based increase to the East Line rates would have resulted in an over-recovery. Therefore, the FERC explained, the 2005 index-based increase of SFPP’s North Line rate did not result in a rate that was unjust and unreasonable under 18 C.F.R. § 343.2(c)(1). See id.; see also BP W. Coast, 118 FERC ¶ 61,261, at P8. Because the FERC adequately discussed why the shippers’ reliance on the East Line orders was misplaced, it did not depart from precedent without reasoned explanation.
BP also challenged SFPP’s 2007 index-based rate increase and contends that the FERC misconstrued 18 C.F.R. *754§ 343.2(c)(1) in dismissing its complaint. BP argued before the FERC that SFPP’s existing rate was already unjust and unreasonable and any index-based rate increase would simply add to the pipeline’s existing over-recovery. The FERC dismissed BP’s complaint on the ground that the actual cost increases incurred by SFPP during the relevant year ($16,403,-222 or 15.3% over the previous year’s costs) were greater than the revenue increase permitted by indexing ($6,010,323 from an index of 4.3186%). See BP W. Coast, 123 FERC ¶ 61,121, at P2, P8. Therefore, BP could not allege that SFPP’s index-based rate increase was “substantially in excess of the actual cost increases incurred.” See id. at P6-P8 (quoting 18 C.F.R. § 343.2(c)(1)). Because the FERC’s interpretation of § 343.2(c)(1) to require dismissal of BP’s complaint was not “plainly erroneous or inconsistent with the regulation,” Bluestone Energy Design, Inc. v. FERC, 74 F.3d 1288, 1292 (D.C.Cir. 1996) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)), it was not arbitrary or capricious.
The shippers raise several additional challenges to the FERC’s orders, but we find none of these persuasive. The FERC did not abuse its discretion in holding that the shippers’ challenges to the pipeline’s existing rates and reported costs and revenue were outside the scope of a § 343.2(c)(1) proceeding. See Mobil Oil Exploration & Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211, 230, 111 S.Ct. 615, 112 L.Ed.2d 636 (1991) (“An agency enjoys broad discretion in determining how best to handle related, yet discrete, issues in terms of procedures and priorities.” (internal citations omitted)). Nor has the FERC abdicated its statutory obligation to ensure rates are just and reasonable, see Interstate Commerce Act, 49 U.S.C. app. § 1(5) (1988), by limiting the scope of complaints against index-based rate increases as it has in the orders on review, see AOPL, 83 F.3d at 1444-45. Finally, the order dismissing the shippers’ complaint against SFPP’s 2005 index-based increase to the North Line rate stated that the complainants could recover all the relief sought — if appropriate — in a separate proceeding that remains pending. See BP W. Coast, 121 FERC ¶ 61,195, at P5 (“[T]he index-based increase at issue here is also fully subject to refund if the indexed component of any new rate [established in that proceeding] would result in a rate that is unjust and unreasonable under the holding of the December 2006 [East Line] Order upon which they rely.”). Given this assurance, we see no reason to take the shippers up on their suggestion that we require the FERC to hold in abeyance their complaint against the 2005 North Line index-based rate increase. The shippers’ remaining arguments do not warrant further discussion.
Pursuant to D.C. Circuit Rule 36(d), this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.Atp. P. 41(b); D.C.Cir. R. 41.
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SUMMARY ORDER
Plaintiff-Appellant Melissa Castaldi appeals from an adverse judgment of the *762United States District Court for the Eastern District of New York entered following a jury trial culminating in a verdict in favor of Defendant-Appellee Land Rover North America, Inc. (“Land Rover”) and following the District Court’s denial of her motion to set aside the verdict. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review.
Castaldi challenges Land Rover’s use of a chart summarizing the testimony of its expert witness. The District Court possesses broad discretion to determine the mode by which evidence is presented to the jury. See Fed.R.Evid. 611(a); SR Int’l Bus. Ins. Co. v. World Trade Cent. Props., LLC, 467 F.3d 107, 119 (2d Cir.2006). This discretion generally encompasses the authority to allow the use of demonstrative aides, including the display of charts or tables accurately summarizing the content of primary testimony. See United States v. Pinto, 850 F.2d 927, 935 (2d Cir.1988). Although the chart at issue, entitled “Facts of the Incident,” may have unduly emphasized the otherwise inadmissible factual material relied upon by the expert in reaching his opinion, any prejudice potentially arising from such use was ameliorated by the District Court’s instruction to the jury that the chart was merely a demonstrative aid and that the soundness of Land Rover’s expert witness’s testimony, as summarized on the chart, depended upon the quality of the evidence from which it was drawn. Moreover, the chart did not misstate the testimony of Land Rover’s expert witness or otherwise mis-characterize the expert’s opinion. Accordingly, the District Court did not abuse its discretion in permitting the use of the chart.
Any objection that Castaldi may have raised to the underlying testimony forming the content of the challenged' chart is equally lacking in merit. If of a type reasonably relied upon by experts in the particular field,” the facts relied upon by an expert in forming an opinion need not be admissible in evidence. Fed.R.Evid. 703; see also United States v. Locascio, 6 F.3d 924, 938 (2d Cir.1993). There is no question that an expert witness of the type employed by Land Rover may rely on deposition testimony in forming an opinion. Cf. United States v. Joseph, 542 F.3d 13, 22 (2d Cir.2008); Locascio, 6 F.3d at 938. Moreover, such otherwise inadmissible facts may be disclosed to the jury if the District Court determines that “their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Fed. R.Evid. 703. Particularly in light of the District Court’s express instruction to the jury that it could make use of the various otherwise inadmissible facts alluded to by Land Rover’s expert witness only to evaluate that witness’s opinion, it is our view that the District Court did not abuse its discretion in allowing this testimony to be admitted.
Finally, even assuming that Land Rover’s counsel improperly discussed unadmit-ted evidence during his summation, such ei'ror did not “so infect [the] trial with undue prejudice or passion as to require” a new trial. Patterson v. Balsamico, 440 F.3d 104, 119 (2d Cir.2006) (internal quotation marks omitted).
We have considered all of Castaldi’s remaining contentions on this appeal and have found them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Plaintiffs sued defendants Ericsson LM Telephone Company (“Ericsson”), Carl-Henric Svanberg, and Karl-Henrik Sund-strom for securities fraud under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, alleging that defendants made false and misleading statements during an investors’ conference hosted by Ericsson on September 11, 2007. Plaintiffs now appeal the dismissal of their complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), a ruling we review de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of plaintiffs. See Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
Plaintiffs argue that the district court erred in concluding that they failed to plead facts sufficient to demonstrate false or misleading statements. Plaintiffs focus on statements made by Ericsson’s CEO, Carl-Henric Svanberg, during the analysts’ and investors’ conference, which they contend conveyed the impression that third-quarter results would be only slightly down from second-quarter results when Svanberg knew that the results would be disastrously worse. We disagree. Plaintiffs’ analysis focuses on individual statements taken out of context. When the defendants’ statements are considered in light of analysts’ questions and are taken in the context of the full discussion, we find that the statements were not misleading. Even clearer, however, is that the district court correctly ruled that the complaint failed to plead scienter, as required.
Under the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995, 15 U.S.C. § 78u-4, a complaint must state with particularity facts supporting a strong inference that defendants acted with “a mental state embracing intent to deceive, manipulate, or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), or with “will*765ful or reckless disregard for the truth,” Lanza v. Drexel & Co., 479 F.2d 1277, 1306 (2d Cir.1973). To survive a motion to dismiss, the inference of such scienter must be more than “merely reasonable or permissible — it must be cogent and compelling.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (internal quotation marks omitted).
Plaintiffs do not purport to satisfy the scienter standard by alleging that the defendants intended to deceive; them allegation is rather that the defendants spoke with reckless disregard for the truth. The complaint, however, fails to allege facts supporting a compelling inference of recklessness.
To support such an inference, the complaint relies on nothing more than the asserted inaccuracy of the defendants’ statements. Where the allegation of recklessness is supported by nothing other than the fact of inaccuracy, and the statements are, at worst, only slightly inaccurate, the inference of reckless disregard for the truth is not likely to be compelling. As noted above, plaintiffs’ argument that Svanberg’s statements were inaccurate depends largely on viewing the statements in isolation and out of context. The statements were made in the context of an informal back-and-forth with analysts— partially in response to questions that were themselves imprecise and potentially ambiguous. We have found that they were not misleading. Even if we were mistaken in that conclusion, when the statements are viewed in the context of the questions asked and of the information that the defendants provided alongside their assailed descriptive language, the inference of falsity is tenuous at most, and the inference of recklessness to be drawn therefrom is not compelling. Because the complaint does not paint a picture of “extreme departure from the standards of ordinary care,” Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000) (internal quotation marks omitted), it was properly dismissed for lack of scienter.
We have considered plaintiffs’ remaining arguments on appeal and conclude that they are without merit. Accordingly, the judgment of the district court is AFFIRMED.
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AMENDED SUMMARY ORDER
Plaintiff-appellant James Mosby (“plaintiff’) formerly worked as a security guard at the William Floyd Union Free School District (the “District”). He brought this action against the District and numerous officials associated with the District (collectively, “defendants”) claiming, principally, that defendants violated Title VII and New York law by subjecting him to a hostile work environment and by failing to promote him to the position of Director of Security within the District. Plaintiff also brought a claim for unlawful retaliation and claims under 42 U.S.C. § 1983 and § 1985.
The District Court granted summary judgment to defendants with respect to each of plaintiffs claims. Plaintiff appeals that ruling arguing (1) that he “proved” or “established” each of his claims or, alternatively, (2) that the record contained genuine issues of material fact that precluded summary judgment.
We review a district court’s summary judgment rulings de novo, asking whether there were any genuine issues of material *789fact and, if there were not, whether the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Undertaking that review, we affirm the District Court’s grant of summary judgment to defendants for substantially the reasons set forth in the District Court’s memorandum and order.
CONCLUSION
For the foregoing reasons, the March 31, 2009 judgment of the District Court is AFFIRMED.
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*747ON MOTION
ORDER
The court considers whether this appeal should be dismissed for failure to comply with this court’s June 11, 2009 order.
On June 11, 2009, this court ordered that Colida must first move in the district court for leave to proceed on appeal before asking this court for leave to proceed in forma pauperis. Pursuant to this court’s June 11, 2009 order, Colida was required within 30 days either to notify this court that he had moved in the district court for leave to proceed in forma pauperis on appeal or to pay the docketing fee. Colida has failed to do so.
Accordingly,
IT IS ORDERED THAT:
This appeal is dismissed for failure to comply with this court’s June 11, 2009 order.
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ON MOTION
ORDER
Upon consideration of Limelight Networks, Inc.’s motion to voluntarily dismiss appeal no.2009-1486,
IT IS ORDERED THAT:
(1) The motion is granted. The revised official caption in 2009-1480 is reflected above.
(2) Each side shall bear its own costs in 2009-1486.
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ON MOTION
ORDER
PER CURIAM.
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Garrett R. Hardman’s appeal from the United States Court of Appeals for Veterans Claims’ judgment in Hardman v. Shinseki, 07-7015, for lack of jurisdiction.
Hardman appealed to the Court of Appeals for Veterans Claims, challenging a 2007 decision of the Board of Veterans’ Appeals that denied service connection for gout and denied special monthly compensation for aid and attendance. The Court of Appeals for Veterans Claims affirmed the Board’s decision, concluding that the Board did not err in not finding a nexus between Hardman’s gout and his in-service symptoms and in finding that Hardman was not eligible for special monthly compensation because there was no medical evidence indicating that he was permanently housebound, bedridden, or in need of aid and attendance. Hardman appeals that decision to this court.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
In his informal brief, Hardman only challenges factual determinations regarding the medical evidence relied on by the Board. Additionally, Hardman makes no nonfrivolous constitutional challenges. Thus, this court does not have jurisdiction over the appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions to waive the requirements of Rule 27(f) and to dismiss are granted.
(2) Each side shall bear its own costs.
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SUMMARY ORDER
Plaintiff-Appellant Melissa Castaldi appeals from an adverse judgment of the *762United States District Court for the Eastern District of New York entered following a jury trial culminating in a verdict in favor of Defendant-Appellee Land Rover North America, Inc. (“Land Rover”) and following the District Court’s denial of her motion to set aside the verdict. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review.
Castaldi challenges Land Rover’s use of a chart summarizing the testimony of its expert witness. The District Court possesses broad discretion to determine the mode by which evidence is presented to the jury. See Fed.R.Evid. 611(a); SR Int’l Bus. Ins. Co. v. World Trade Cent. Props., LLC, 467 F.3d 107, 119 (2d Cir.2006). This discretion generally encompasses the authority to allow the use of demonstrative aides, including the display of charts or tables accurately summarizing the content of primary testimony. See United States v. Pinto, 850 F.2d 927, 935 (2d Cir.1988). Although the chart at issue, entitled “Facts of the Incident,” may have unduly emphasized the otherwise inadmissible factual material relied upon by the expert in reaching his opinion, any prejudice potentially arising from such use was ameliorated by the District Court’s instruction to the jury that the chart was merely a demonstrative aid and that the soundness of Land Rover’s expert witness’s testimony, as summarized on the chart, depended upon the quality of the evidence from which it was drawn. Moreover, the chart did not misstate the testimony of Land Rover’s expert witness or otherwise mis-characterize the expert’s opinion. Accordingly, the District Court did not abuse its discretion in permitting the use of the chart.
Any objection that Castaldi may have raised to the underlying testimony forming the content of the challenged' chart is equally lacking in merit. If of a type reasonably relied upon by experts in the particular field,” the facts relied upon by an expert in forming an opinion need not be admissible in evidence. Fed.R.Evid. 703; see also United States v. Locascio, 6 F.3d 924, 938 (2d Cir.1993). There is no question that an expert witness of the type employed by Land Rover may rely on deposition testimony in forming an opinion. Cf. United States v. Joseph, 542 F.3d 13, 22 (2d Cir.2008); Locascio, 6 F.3d at 938. Moreover, such otherwise inadmissible facts may be disclosed to the jury if the District Court determines that “their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Fed. R.Evid. 703. Particularly in light of the District Court’s express instruction to the jury that it could make use of the various otherwise inadmissible facts alluded to by Land Rover’s expert witness only to evaluate that witness’s opinion, it is our view that the District Court did not abuse its discretion in allowing this testimony to be admitted.
Finally, even assuming that Land Rover’s counsel improperly discussed unadmit-ted evidence during his summation, such ei'ror did not “so infect [the] trial with undue prejudice or passion as to require” a new trial. Patterson v. Balsamico, 440 F.3d 104, 119 (2d Cir.2006) (internal quotation marks omitted).
We have considered all of Castaldi’s remaining contentions on this appeal and have found them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
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AMENDED SUMMARY ORDER
Plaintiff-appellant James Mosby (“plaintiff’) formerly worked as a security guard at the William Floyd Union Free School District (the “District”). He brought this action against the District and numerous officials associated with the District (collectively, “defendants”) claiming, principally, that defendants violated Title VII and New York law by subjecting him to a hostile work environment and by failing to promote him to the position of Director of Security within the District. Plaintiff also brought a claim for unlawful retaliation and claims under 42 U.S.C. § 1983 and § 1985.
The District Court granted summary judgment to defendants with respect to each of plaintiffs claims. Plaintiff appeals that ruling arguing (1) that he “proved” or “established” each of his claims or, alternatively, (2) that the record contained genuine issues of material fact that precluded summary judgment.
We review a district court’s summary judgment rulings de novo, asking whether there were any genuine issues of material *789fact and, if there were not, whether the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Undertaking that review, we affirm the District Court’s grant of summary judgment to defendants for substantially the reasons set forth in the District Court’s memorandum and order.
CONCLUSION
For the foregoing reasons, the March 31, 2009 judgment of the District Court is AFFIRMED.
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SUMMARY ORDER
Appellant Elliot Ulysses Cates (“Cates”) appeals the district court’s grant of Appel-lees’ Federal Rule of Civil Procedure 12(b)(6) motion, dismissing his complaint alleging violations of the Due Process Clause, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq., as well as claims for defamation and breach of contract. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Our independent review of the record confirms that the district court properly granted the motion to dismiss. We affirm that court’s judgment for substantially the same reasons as articulated in that court’s thorough and well-reasoned opinion.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant Cho appeals from a judgment of conviction following her plea of guilty to one count of bank fraud, in violation of Title 18, United States Code, Section 1344. Her sole challenge is to the district court’s order of restitution in the amount of $49,600. Cho attempted to make restitution in full prior to the entry of the district court’s judgment and, based on her belief that she was successful, sought for the judgment to be entered without an order of restitution. The district court found that restitution was not completed prior to entry of the judgment and denied Cho’s request. The district court also denied a subsequent request by Cho that “a new judgment be issued without the restitution order.” For substantially the reasons relied upon by the district court, the district court’s judgment of conviction and subsequent order are AFFIRMED.
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OPINION
PER CURIAM.
Angel Delgado appeals from the order of the District Court dismissing as untimely his motion for relief from his sentence under 28 U.S.C. § 2255. For the following reasons, we will vacate the judgment and remand for further proceedings. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
*854I.
Delgado pleaded guilty to drug trafficking offenses involving crack cocaine and heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). The District Court sentenced him to fifty-four months of imprisonment on July 26, 2007. Delgado did not appeal. Thus, his conviction became final when the ten-day period for appealing expired on August 9, 2007. See Fed. R.App. P. 4(b)(1)(a), 26(a)(2). Any § 2255 motion was due to be filed within one year after that, or by August 8, 2008. See 28 U.S.C. § 2255(f)(1).
On March 23, 2008, Delgado sent a letter pro se to the District Court raising certain questions about his sentence and the crack cocaine Sentencing Guidelines amendment.1 He also raised allegations about his counsel. According to Delgado, the base offense level set forth in the plea agreement was too high, and he wanted to change his plea to “not guilty.” He further alleged that he raised the issue with counsel, but that counsel “misguided” and “scared” him “into accepting the terms of my plea agreement.” He closed his letter as follows: “On my behalf I would like to file a 2255 on [counsel] for insufficient assistance of counsel for his failure to represent me to the best of his ability and for withholding information from me as well as lying to me.” The letter was docketed in the District Court merely as a letter “inquiring about the level of offense that [Delgado] was sentenced to,” (Dist. Ct. Docket No. 483), and the District Court took no action on it.2
On September 1, 2008, some ‘ three weeks after the limitations period expired, Delgado filed an actual § 2255 motion on the standard form. Delgado repeated his allegations against counsel, stated that counsel had him “sign a plea agreement that I didn’t think was right,” and added an allegation that counsel had refused to file a requested appeal challenging the calculation of his sentence. On September 9, 2008, the District Court issued an order directing Delgado to show cause why it should not dismiss the motion as untimely, together with the notice of elections required by United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999). Delgado did not respond. By memorandum and order entered November 7, 2008, the District Court dismissed the § 2255 motion as untimely, also faulting Delgado for failing to respond to the order to show cause. The District Court acknowledged Delgado’s March 23 letter, but construed it merely as a statement that Delgado intended to file a § 2255 motion in the future. Delgado then responded by letter dated November 12, 2008, that he never received the order to show cause. The District Court treated the letter as a motion for reconsideration and again directed Delgado to file a statement of reasons why the § 2255 motion should not be deemed untimely. Instead, Delgado filed pro se a notice of appeal from the November 7 order. The District *855Court later denied his motion for reconsideration. Delgado has not separately appealed that ruling.
By order entered October 15, 2009, we granted a certificate of appealability on the issues of whether the District Court should have construed Delgado’s March 23 letter as a potential § 2255 motion triggering the District Court’s obligation to provide the notice required by Miller, and whether the District Court thus erred in dismissing Delgado’s subsequently filed § 2255 motion as untimely. We also directed the Government to show cause why we should not summarily vacate the District Court’s order, and the Government has filed its response.3
II.
We have long held that courts must liberally construe pro se filings with an eye toward them substance rather than their form. See Miller, 197 F.3d at 648. In this case, Delgado’s March 23 letter specifically advised the District Court that he believed his sentence was incorrect, that he wanted to withdraw his guilty plea but that counsel misguided and scared him into accepting it, and that “[o]n my behalf I would like to file a 2255 on [counsel] for insufficient assistance of counsel for his failure to represent me to the best of his ability and for withholding information from me as well as lying to me.” Construed liberally as they must be, these statements express a present intention to seek relief potentially available under § 2255. Accordingly, they were sufficient to trigger the District Court’s obligation to provide Delgado with notice of the elections required by Miller. See Miller, 197 F.3d at 652 (“[U]pon receipt of pro se pleadings challenging an inmate’s conviction or incarceration— whether styled as a § 2255 motion or not — a district court should issue a notice to the petitioner regarding the effect of his pleadings.”). Among other things, Miller requires district courts to notify petitioners that they may “withdraw the petition and file one all-inclusive § 2255 petition within the statutory period.” Id.
Delgado thus filed with the District Court a potential § 2255 motion on March 23, 2008, with 141 days remaining in the statutory period. Under Miller, the District Court should have notified him at that time that he could file an all-inclusive petition within the statutory period. Instead, the District Court took no action on Delgado’s letter and, when Delgado later filed an actual § 2255 motion some three weeks after the statutory period had expired, dismissed it as untimely. Moreover, because the allegations contained in the § 2255 motion arose at least partially from the same general “conduct, transaction, or occurrence” described in the March 23 letter, it should be deemed to relate back to that letter at least to that extent. Hodge, 554 F.3d at 378. Thus, under the circumstances, the District Court should not have dismissed Delgado’s § 2255 motion as untimely.
The Government’s arguments to the contrary are unpersuasive. The Government appears to suggest — somewhat surprisingly, and in sole reliance on a non-precedential (and inapposite) opinion — that the District Court had no obligation to review Delgado’s March 23 letter at all. Suffice it to say that we disagree. The Government also argues, as the District Court wrote, that Delgado’s March 23 letter stated merely that he “would” file a § 2255 motion in the future. Liberally *856construed, however, Delgado s letter indicates a present intention to seek § 2255 relief from the District Court, and thus should have triggered the Miller notice.
The Government further argues that Delgado himself has never claimed that the District Court should have construed his March 23 letter as a § 2255 motion. Instead, as the Government notes, Delgado acknowledged the untimeliness of his subsequent § 2255 motion but sought relief from its untimeliness on the grounds that he did not know of the statute of limitations “until I did some research,” which is not sufficient to toll the statute. Delgado’s pro se filings, however, reflect considerable confusion regarding the status of his case,4 and we will not require him to have argued what, under Miller, the District Court should have done sua sponte. Moreover, if the District Court properly had construed Delgado’s March 23 letter, then it would have sent him notice of the limitations period with 141 days to go and the issue of timeliness likely never would have arisen in the first place.
Finally, the Government argues that the allegations in the March 23 letter are insufficient by themselves to warrant relief. That may be the case, but the argument is beside the point. In response to his letter, Delgado should have received notice under Miller of the opportunity to file an all-inclusive § 2255 motion and, though he later filed a § 2255 motion, he did so without the benefit of the Miller notice. Under the circumstances, we cannot assume that Delgado intended his § 2255 motion to constitute the one, all-inclusive § 2255 motion that the Miller notice would have informed him he had the opportunity to file. For that reason, the merits of Delgado’s claims are not properly before us, and the District Court should address them in the first instance if and when appropriate on remand.
Accordingly, we will vacate the District Court’s judgment. On remand, the District Court is directed to treat Delgado’s § 2255 motion as filed on March 23, 2008, the date of the letter that should first have triggered the Miller notice. The District Court is further directed to reissue the Miller notice and provide Delgado with the various options to proceed specified therein.5 Finally, because the District Court should have provided Delgado with those options on March 23, when he still had time remaining within the statute of limitations, we will toll the statute of limitations to allow Delgado, should he chose to do so, to file a timely, all-inclusive § 2255 motion within the time permitted by the District Court.
. Delgado mailed his letter on March 23, but it was docketed as received on March 26. Under the prison mailbox rule, prisoner's filings are deemed filed upon mailing. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Thus, we will refer to Delgado's submissions as having been filed on the date he mailed them.
. Delgado previously had filed a motion for the appointment of counsel to seek a sentence reduction under the crack cocaine amend-menl to the Sentencing Guidelines (Docket No. 480). The District Court granted that motion and appointed Delgado's original counsel, whom it later allowed to withdraw, then appointed different counsel, whom it allowed to withdraw as well. It appears that Delgado already had received the benefit of the amendment at sentencing, which was second counsel’s basis for seeking leave to withdraw.
. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255(d). We exercise plenary review over the District Court’s dismissal of a § 2255 motion as untimely. See Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009).
. For example, Delgado stated in his November 12 letter that he had not mentioned his § 2255 motion in a previous letter to the District Court because he “thought that a higher court was handling that matter being that [I] was challenging this court's decision.” (Docket No. 509 at 3.)
. The District Court included a proper Miller notice in its order of September 9, 2009, which also directed Delgado to show cause why it should not dismiss his § 2255 motion as untimely. After the District Court dismissed the motion, Delgado argued that he had never received the September 9 order. Because the District Court already had dismissed Delgado’s § 2255 motion, Delgado understandably addressed his arguments thereafter to the issue of dismissal, not any election he might have made under Miller. The District Court's September 9 order gave Delgado forty-five days to make his election under Miller, and we see no reason why a similar period would not be warranted on remand.
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OPINION
PER CURIAM.
Zhuangkao Hao, a native and citizen of the People’s Republic of China, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will grant the government’s motion for summary affirmance and deny Hao’s petition for review because it presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
I.
Hao was admitted to the United States in 2004 as a visitor, but remained longer than permitted. He was placed in removal proceedings, during which he conceded his removability. Hao applied for asylum, withholding of removal, and CAT protection, claiming that he had been persecuted in China because he and his wife violated *858the family planning policy by having a second son.
In January 2009, Hao had a hearing on his application. He testified that when his wife became pregnant with their second child in 1989, she hid at a relative’s house. Hao was apparently at work elsewhere when officials demanded that his wife have an abortion and took 1,500 RMB from his parents to secure her return for the procedure. He testified that officials also broke into his house and took a sewing machine, television, and clothes closet and that they removed the roof from one of the rooms. His wife did not undergo an abortion and bore a second son in late 1989.
In late 1992, according to Hao, a village official invited him to a meeting regarding the registration of his children and the receipt of land. Once at the office, Hao saw that the only attendees were people who had had two children. The official told them they had violated the family planning policy and gave them contracts for sterilization. Hao refused and tried to flee, but was stopped and held overnight. The next day his wife came and told him that she had signed a sterilization contract so that he would be freed to work. Later that morning, Hao’s wife was sterilized and Hao was released and allowed to take her home. He testified that officials did not trouble his family after the sterilization and that he was given a small plot of land and was permitted to register his second son. About twelve years later, in 2004, Hao left China.
Hao told the IJ that he feared returning to China because he had been here for many years and fellow villagers in the United States may have called home and reported that he applied for asylum. He feared the Chinese government would “take revenge” on him by publicly criticizing him, destroying his home, and seizing his land. But Hao also testified that no one had contacted his wife about him since he left China and that nothing had been done to his family since his departure.
The IJ denied relief and ordered Hao removed to China, concluding that he had not suffered past persecution. The IJ first noted that, as a matter of law, Hao could not maintain a claim for asylum based on his wife’s coerced sterilization. The IJ then considered Hao’s testimony regarding his overnight detention, the fine paid by his parents, the seizure of property, and the partial destruction of his roof, and concluded that the actions did not rise to the level of persecution. In support of this conclusion, the IJ noted that Hao was detained only overnight and was not harmed, that the fine was levied against Hao’s parents, not him, and that there was no evidence that they found it onerous, and that while the partial removal of his roof was “serious,” it was offset by the government’s award of land and registration for the second child. Finally, the IJ rejected Hao’s claims that he will face future persecution in China, noting that it was unreasonable to think that birth control officials would harm him when nothing had been done to him or his family in the sixteen years since his wife’s sterilization, and that his fears of revenge for seeking asylum were unsubstantiated and inconsistent with country conditions as reflected in the evidence of record. On appeal, the BIA affirmed without opinion, noting that the IJ’s decision is the final agency determination in this matter.
Hao timely filed a petition for review and moved for a stay of removal pending this Court’s review. The government opposes a stay and has moved for a summary disposition on the merits of the petition. Hao, who is represented by counsel, opposes summary disposition.
*859II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of removal. In this case, the BIA affirmed the IJ’s decision without opinion and expressly stated that the IJ’s decision was the “final agency determination.” We therefore review the IJ’s decision. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). In doing so, we review factual findings for substantial evidence and may not disturb them “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over conclusions of law, subject to the established principles of deference accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir.2008).
Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a person who has been forced to abort a pregnancy or to undergo involuntary stei’ilization ... shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status for spouses of individuals subjected to coercive population control policies. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). Thus, to the extent that Hao relies on his wife’s sterilization to support his application for asylum, our decision in Lin-Zheng precludes the claim.1
Despite our holding in Lin-Zheng, spouses remain eligible for relief if they can establish their own persecution for resisting China’s coercive family planning policy or a well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). Here, Hao argues that the “issue is whether or not [he] has suffered economic persecution as the result of his wife’s refusal to have an abortion while pregnant with her second child.” He contends that the fine levied against his parents, the seizure of personal property (sewing machine, television, and clothes closet), and the partial destruction of his roof constitute economic persecution. Setting aside the question of whether Hao can establish that he resisted China’s family planning policy by his wife’s refusal to have an abortion, we agree with the IJ that Hao did not demonstrate economic persecution.
“[Persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. The standard for economic persecution is stringent, requiring a petitioner to show “the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005). Hao, who has *860the burden of establishing his eligibility for asylum, see 8 C.F.R. § 208.13(a), has failed to meet this standard.
First, regarding the fine paid by his parents, Hao failed to present any evidence that the fine affected him, let alone that it was onerous. There is nothing in the administrative record to suggest that Hao relied on his parents to help support himself and his family, nor is there any evidence regarding his parents’ means and how severe the fine was in that context. Similarly, Hao failed to present any evidence that the seizure of his family’s television, sewing machine, and clothes closet imposed a severe economic disadvantage.2 Finally, we agree with the IJ that, while the destruction of a portion of Hao’s roof is “serious,” it does not rise to the level of persecution. Although Hao testified that it was a number of years before he repaired the roof (or built a new house — -the testimony is somewhat unclear) which might suggest that the damage imposed an economic strain, he also testified that he lived in the remaining portion of the house until he did so.3 Even viewed in the aggregate, the evidence does not suggest that the confiscation and destruction of Hao’s property, while unfair or even deplorable, threatened his life or deprived him of housing or other essentials. See Li, 400 F.3d at 168. Accordingly, we are compelled to conclude that the IJ’s decision that Hao failed to show past persecution is supported by the record.
For these reasons, we will grant the government’s motion for summary action and deny the petition for review. In light of this disposition, we also deny Hao’s motion for a stay of removal pending review.
. In his motion for a stay of removal, Hao argued that the IJ erred by failing to conclude that the harm he suffered — detention, his wife’s sterilization, the seizure of personal property, the destruction of a portion of his roof, and the fine paid by his parents — cumulatively amounted to past persecution. After the government moved for summary affir-mance based on our decision in Lin-Zheng, Hao altered his argument, claiming that the issue in his case is whether he suffered economic persecution.
. Hao presented no evidence to help gauge the magnitude of the seizure in relationship to his means, nor did he testify about the impact of the seizure, or whether the objects seized were of particular economic significance. For example, although Hao testified that he is a carpenter and had a small furniture-making business, he did not explain whether his wife used the sewing machine to supplement their income, or whether it was instrumental to keeping their family clothed.
. The IJ considered the fact that Hao was granted land and permission to register his second child after his wife's sterilization. Although this does not appear to be relevant to whether the prior, partial destruction of his roof constituted persecution, the IJ also separately concluded that “the taking off of a roof of one room’’ did not rise to the level of persecution. As explained above, this conclusion is supported by Hao’s own testimony.
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OPINION
PER CURIAM.
Charles J. Sechler filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to appoint counsel of his choice and to explain why he has not been allowed access to his current, court-appointed counsel. He also asks this Court to (1) send him his case file so he may proceed pro se, (2) order his current counsel to explain why she has refused to represent him since he absconded, and (3) make an information request on his behalf. For the reasons that follow, we will dismiss the petition.
In 2007, Sechler was convicted of drug-related charges by a jury in the United States District Court for the Middle District of Pennsylvania, but he fled to Canada before he was sentenced. Sechler was arrested by Canadian authorities in 2008 and detained. It appears that Sechler claimed refugee status, which was denied, and that a deportation order was issued in March 2008. It also appears that, to date, he remains in detention in Canada. In the meantime, the criminal case is at a standstill: the District Court has not sentenced Sechler in absentia and it appears from correspondence on that court’s docket that it does not intend to move forward until Sechler returns to the jurisdiction. In November 2009, Sechler filed a mandamus petition with this Court, seeking the aforementioned relief. It appears that he is frustrated by what he deems his court-appointed counsel’s “refusal to represent [him] in any capacity in the District Court” since he fled to Canada.
The threshold question presented in this case is whether we should entertain Sech-ler’s petition for mandamus relief regarding his criminal trial when he absconded during that trial and remains beyond the jurisdiction of the trial court. The Supreme Court has recognized that courts have the power to dismiss a fugitive’s criminal appeal. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (a fugitive’s escape “disentitles the defendant to call upon the resources of the Court for determination of his claims”). The so-called fugitive disen-titlement doctrine does not, however, automatically disqualify a criminal fugitive *862from maintaining a civil action in federal court. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (holding that a district court could not apply the doctrine to refuse a criminal fugitive’s answer in a related civil forfeiture case). In general, dismissal of a civil action under the doctrine is appropriate where there is a sufficient connection between the fugitive status and the civil action, and where the dismissal animates the concerns underlying the doctrine. See Barnett v. YMCA, Inc., 268 F.3d 614, 618 (8th Cir.2001).
In this case, dismissal is appropriate for several reasons. First, there is a direct connection between Sechler’s fugitive status and his mandamus petition. Sechler fled during his criminal trial and, consequently, the trial stopped, yet he is attempting to gain the means to continue to litigate via mandamus relief. Second, although entertaining Sechler’s petition may not be a direct affront to the dignity of this Court, it is an affront to the dignity of the District Court because Sechler is attempting to circumvent and flout the authority of that court, which has decided to halt proceedings until he returns to its jurisdiction. Cf. United States v. Awadalla, 357 F.3d 243, 246 (2d Cir.2004) (noting that the Degen Court’s rationale that a criminal defendant should not be sanctioned by one court for his affront to another has no application in criminal appeals). Finally, dismissal is not an excessively harsh sanction. See Degen, 517 U.S. at 829, 116 S.Ct. 1777; Maydak v. United States Dep’t of Educ., 150 Fed.Appx. 136, 138 (3d Cir. 2005). Regarding Sechler’s requests related to representation, the District Court and Sechler’s attorney have made clear that both his trial and representation by court-appointed counsel will resume once he returns to the court’s jurisdiction. As for his demand that this Court file an information request on his behalf, relief in that form is not available through a petition for a writ of mandamus under 28 U.S.C. § 1651. And, in any event, Sechler may make the requests himself to the appropriate agencies under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (2006), and Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (2009). Accordingly, we will dismiss Sechler’s petition for a writ of mandamus.
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ROTH, Circuit Judge,
dissenting:
I respectfully dissent. The majority holds that Stephanie Kanter, as the assign-ee of the Estate of Roberta Schwartz, did not have the right to institute and maintain the claims against the defendants until after September 14, 2001, the date of the decision in Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (N.J.Super.2001). The majority concludes that Kanter could not have instituted the Estate’s claim for the annuity until after that time because the Estate’s claim did not accrue until that date. In explaining this conclusion, the majority states: “At the time of the withdrawal in December 1999, the Estate had no legal interest in or right to the funds in the annuity.” Majority at 866. If that were so, I do not find any basis for the defendant’s being held liable to the Estate for having paid out funds in which the Estate had no legal interest and to which the Estate had no legal right. Moreover, the majority cites no basis to create such liability.
Contrary to the majority, however, I believe that the Estate did have a claim to funds in the annuity at the time they were paid out to Dr. Schwartz. As described by the majority, the Estate had been pursuing that claim in the Wasserman ease. In view of the undisputed facts, the majority’s reasoning seems to be based on a new version of the Discovery Rule under which it is not the discovery of facts but the *868discovery of the new legal theory — here, the judicial ruling in the Wasserman case, validating the Estate’s theory of recovery — that determines when the cause of action accrues. The New Jersey Supreme Court has held, however, that a delay in determining the legal theory under which one will pursue a cause of action does not delay the accrual of the cause of action. See Burd v. New Jersey Telephone Co., 76 N.J. 284, 386 A.2d 1310, 1314 (1978) (holding that “[w]e find the trial judge to have been in error in concluding that regardless of when a claimant knows or reasonably should know the facts of the relationship of his injury to a particular source or cause, the applicable limitations period does not begin running until he learns from a lawyer that those facts equate with a legal cause of action against the producer or originator of the injurious source or cause.”). Following that precedent, I conclude that the “discovery” of the “new legal theory,” announced in Wasserman, is not recognized under New Jersey law as determining the accrual date of a cause of action.
Moreover, as set out above, this “new legal theory” was known to the Estate— and to the lawyers representing it — when the Wasserman case was filed. The lawyers for the Estate understood the concept that the Estate might recover part of Dr. Schwartz’s annuity. They in fact made that claim in Wasserman against Dr. Schwartz. And, indeed, the right to make such a recovery had been recognized elsewhere. See In re Estate of Diane L. Hackl, 231 Wis.2d 43, 604 N.W.2d 579, 585 (Wis.Ct.App.1999) (imposing a constructive trust on murdered spouse’s marital property interest in murdering spouse’s pension).
In addition, at least by the time of the Wasserman trial, the lawyers for the Estate were aware that the annuity had been paid out by Equitable to Dr. Schwartz. Clearly, everything that the Estate needed to know to pursue a recovery from the defendants was known to it more than six years before this action was brought. The action is, therefore, barred.
Finally, I am not aware of any precedent that holds that, after the statute of limitations has run, a plaintiff can look around for new sources of recovery if the plaintiff has failed to recover in full from the defendants already found to be liable. As noted above, the Estate had knowledge of facts and a legal theory under which it could have included defendants in the Wasser-man case — or, even if not pursuing them in that action, it could have brought an action within the six year limitations period after the Estate learned of the injury— ie., of the taking of the funds from the annuity.
For the reasons stated above, I submit that the judgment of the District Court should be 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/8477264/
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*217OPINION
AMBRO, Circuit Judge.
Synergistic Equities, Ltd. (“Synergistic”) appeals the judgment of the District Court, which, among other things, affirmed the Bankruptcy Court’s determination that subject matter jurisdiction existed. We agree that there is subject matter jurisdiction, but we vacate and remand with instructions to dismiss the remaining claims because Synergistic does not have any right to contest an involuntary petition.
I. Facts and Procedural Background
A. Filings
This case stems from three separate bankruptcy petitions. We discuss them briefly to provide the relevant context.
The first petition was an involuntary bankruptcy petition filed against Quality Distribution Network, Inc. (“Quality Inc.”), on January 24, 2007 (Case No. 1). A Chapter 7 Trustee was appointed. At some time during the proceedings, it was discovered that Inc. was circumventing the bankruptcy process by offloading its operations to a successor firm, QDN, LLC (“QDN”). Adversary proceedings began against QDN in Case No. 1 and resulted in a Consent Order, which included limitations on the actions QDN would be permitted to take. About the same time, QDN issued a check to Synergistic, a creditor and the appellant in this case, that appears to be a preference payment.
The second petition was an involuntary bankruptcy petition filed against Quality Distribution Network, LLC (“Quality LLC”), on June 6, 2007 (Case No. 2).1 It appears that the petition was meant to be filed against QDN and not Quality LLC. Indeed, QDN was served ■ at its correct address (the same address as Quality Inc.), QDN’s federal identification number was on the filing, and QDN appeared to contest the matter in court. It answered with a statement that it was not the party named in the petition and that the petition named a non-existent alleged debtor. However, QDN also attempted to benefit from the protections of an automatic stay in correspondence with Chase Bank after the filing of Case No. 2, but prior to the filing of Case No. 3, by claiming that an involuntary petition was filed against it in June, 2007.
On September 11, 2007, the Trustee in Case No. 1 filed a motion to appoint a trustee in Case No. 2. On September 14, 2007, Synergistic filed an objection to the appointment of a trustee alleging that the Bankruptcy Court did not have subject matter jurisdiction over the case.
That same day, September 14, 2007, the third petition was filed by QDN (Case No. 3). Unlike the two prior petitions, the third petition was voluntary and filed by the debtor itself.
B. Proceedings
The Bankruptcy Court held hearings on September 17 and 21, 2007, to decide whether to appoint a trustee in Case No. 2. In the interim, on September 20, 2007, the petitioning creditors in Case No. 2 filed a motion to amend the petition to correct the name to reflect QDN’s true legal name. The Bankruptcy Court ruled that the dispute in Case No. 2 was simply a case of misnomer, and was not a jurisdictional issue. The Court noted that the federal ID number was identical, the proper party was served, no one was confused or surprised as to the identity of the parties *218involved (in light of the adversary proceedings in Case No. 1 as well as QDN’s appearance in Case No. 2), and allowed the petition to be amended to correct the name nunc pro tunc to June 6, 2007. Cases Nos. 2 and 3 were consolidated, and a trustee was appointed in the consolidated ease.
The District Court affirmed the finding of subject matter jurisdiction, affirmed the consolidation of cases, and affirmed the appointment of the trustee in the consolidated case. This appeal followed.
II. Jurisdiction and Standard of Review
The Bankruptcy Court had jurisdiction pursuant to 28 U.S.C. § 157(b)(1) to hear and determine a case under the Bankruptcy Code.2 The District Court had jurisdiction to review the Bankruptcy Court orders pursuant to 28 U.S.C. § 158(a)(1). We have jurisdiction under 28 U.S.C. §§ 1291 and 158(d).
We exercise plenary review over the District Court’s conclusions of law, including matters of statutory interpretation. In re Tower Air, Inc., 397 F.3d 191, 195 (3d Cir.2005) (citing In re Prof'l Ins. Mgmt., 285 F.3d 268, 282-83 (3d Cir.2002)). Because the District Court sat as an appellate court to review the Bankruptcy Court, we review the Bankruptcy Court’s legal determinations de novo, its factual findings for clear error, and its exercises of discretion for abuse thereof. Id. (citing In re Engel, 124 F.3d 567, 571 (3d Cir.1997)).
III. Analysis
While Synergistic raises a host of issues, they essentially devolve to two claims: (1) the Bankruptcy Court lacked subject matter jurisdiction over Case No. 2; and (2) it mishandled Case No. 2.3 Synergistic, in characterizing its claim as an attack on the subject matter jurisdiction of the Court, is attempting to confer on itself as a creditor the “standing” to oppose an involuntary bankruptcy petition that it would otherwise lack. If, as Synergistic claims, the courts lacked subject matter jurisdiction, then the Bankruptcy Court, the District Court, and our Court would be obligated to notice that defect sua sponte and dismiss for want of jurisdiction. See In re Earl’s Tire Serv., Inc., 6 B.R. 1019, 1021-22 (D.Del.1980), superseded by rule on other grounds, as recognized in In re Memorex Telex Corp., 241 B.R. 841 (D.Del.1999). On the other hand, if we are satisfied that we have subject matter jurisdiction, Synergistic has no right to plead defects in the involuntary petition or in the Bankruptcy Court’s handling of that petition. Id.
A. As a non-filing creditor, Synergistic has no standing to contest the filing of an involuntary bankruptcy petition
As a preliminary matter, § 303(d) of the Bankruptcy Code allows a “debtor ... [to] file any answer to a[n] [involuntary] petition.” 11 U.S.C. § 303(d) (emphasis added). It is well-established that a creditor, in contrast, does not have standing to contest an involuntary bankruptcy *219filing. In re Earl’s Tire Serv., Inc., 6 B.R. at 1021-22; In re Westerleigh Dev. Corp., 141 B.R. 38, 40 (Bankr.S.D.N.Y.1992); In re New Era Co., 115 B.R. 41, 45 (Bankr.S.D.N.Y.1990), aff’d, 125 B.R. 725 (S.D.N.Y.1991); In re MacFarlane Webster Assocs., 121 B.R. 694, 700 (Bankr.S.D.N.Y.1990); In re Manson Billard, Inc., 82 B.R. 769, 771-72 (Bankr.E.D.Pa.1988); see also In re Carden, 118 F.2d 677, 679 (2d Cir.1941); In re Spohn Motor Co., 158 F.Supp. 855, 855 (W.D.Pa.1958); In re T.J. Ronan Co., 114 F.Supp. 299, 300 (S.D.N.Y.1953). The filing of an involuntary petition is an adversarial proceeding between the filers and the debtor, which may contest the filing at a hearing. See generally 11 U.S.C. § 303. Congress chose to preclude creditors from opposing involuntary petitions because such opposition invariably was to protect a preference or to gain some unfair advantage at the expense of other creditors, contrary to the policy of providing equitable distribution of assets among all creditors. In re Earl’s Tire Serv., Inc., 6 B.R. at 1021-22.
Synergistic does not cite any authority that indicates it has standing to do anything more than bring the issue of subject matter jurisdiction to the court’s attention. It is not the debtor, and therefore under 11 U.S.C. § 303(d) and Federal Rule of Bankruptcy Procedure 1011 it does not have the right to contest the involuntary petition on the merits. Indeed, the only reason Synergistic is contesting the involuntary petition appears to be to protect itself from having a preference voided by moving the petition date to a later date, the very situation Congress tried to avoid. Thus, we review only the question of subject matter jurisdiction.
B. There is subject matter jurisdiction in this case
The jurisdiction of the Bankruptcy Court allows it to “hear and determine all cases under title 11.” 28 U.S.C. § 157(b)(1). Essential to any case under the Bankruptcy Code is a debtor, which includes any person (including a corporation) that resides in the United States. 11 U.S.C. § 109(a). A case naming QDN as the debtor falls within the Bankruptcy Court’s jurisdiction.4 The complication in this ease is whether the Bankruptcy Court had jurisdiction over a petition naming “Quality Distribution Network, LLC” as the debtor instead of “QDN, LLC.” Synergistic argues that this misidentification is fatal and requires dismissal of the involuntary petition in Case No. 2. Under the facts before us, we disagree.
There is no question that a debtor (QDN) was brought before the Bankruptcy Court, and that QDN knew exactly why it was there. It was served at its address of record, was identified by its federal ID number, appeared numerous times in the Bankruptcy Court, and sent at least one letter to a creditor to inform it of the proceedings against QDN in Case No. 2. The only mistake was a misnomer in the identification of the debtor in the caption of the case, and this was corrected prior to the appointment of a trustee. Other than that mistake, there is no question that QDN was properly before and within the jurisdiction of the Bankruptcy Court.
*220Misnomer — typically when a plaintiff misnames or misidentifies a party in its pleadings but correctly serves that party— is the classic example of mistake that can be corrected via amendment. In such a case, relation back is appropriate because the party that was served is already before the court. See 3 James Wm. Moore et al., Moore’s Federal Practice § 15.19[3][d] (3d ed.2009) [hereinafter Moore’s ]. In contested proceedings in the Bankruptcy Court, Rule 7015 provides for the application of Federal Rule of Civil Procedure 15. See Fed. R. Bankr.P. 7015. Rule 15, in turn, is the appropriate avenue to correct misnomers via amendment to avoid the situation where a legitimate legal claim is squelched by a party mistakenly identifying the party to be used. Moore’s § 15.19[3][d].
As recognized by the District Court and the Bankruptcy Court, a misnomer is appropriately remedied by amendment in cases when a plaintiff sues a parent instead of a subsidiary, a corporation instead of a partnership, a building instead of its corporate owner, or a corporation in liquidation instead of its successor. See id. § 15.19[3][d] & nn. 37-39 (citing cases). In any event, misnomer is simply not a matter implicating subject matter jurisdiction.
We find Synergistic’s sole case citation indicating a lack of subject matter jurisdiction unpersuasive. Specifically, In re Westville Distribution & Transport, 293 B.R. 101 (Bankr.D.Conn.2003), dealt solely with a purported voluntary petition filed on behalf of a non-existent debtor. The non-existent debtor had a name similar to that of another entity that never intended to file a bankruptcy petition. Westville does not address the situation involving an involuntary petition for relief, and it explicitly recognized that the two scenarios are “fundamentally different.” Id. at 102. In the case of an involuntary petition, a scrivener’s error can be amended by a filer through the normal process of amendments.
The policy concerns behind Westville do not apply in our case. Westville was most concerned with non-filers attempting to “vitalize a non-existing entity and then force it into bankruptcy without observing the statutory predicates for involuntary cases.” Id. That simply is not the case here because we have an involuntary case under § 303 that observed the statutory predicates. The debtor was properly served and did, in fact, show up in court notwithstanding the scrivener’s error in naming the entity. The only party objecting to the appointment of a trustee at this point is Synergistic, a non-filing creditor. Thus, we put Westville aside.
Other policy concerns raised by Synergistic are also unavailing.5 First, this is not a case of a “John Doe” debtor named for purposes of an illicit, secret bankruptcy; all involved knew the identity of the debtor, the debtor appeared, and even Synergistic recognizes that it is making a strictly technical objection.6
Second, the analogy to Article 9 of the Uniform Commercial Code is simply off point. The granting of security interests requires strict compliance on the name of the debtor because it is intended to give notice to other potential creditors. In con*221trast, until the order for relief is entered, an involuntary case only involves the petitioning creditors and the debtor. Furthermore, Article 9 is not jurisdictional — an error in name does not deprive a court of jurisdiction, but only acts to deprive a noncompliant creditor of secured status and priority.
Third, an additional reason why these policy concerns are more muted in the case of an involuntary filing is given by § 303(f). Unless and until an order for relief is granted, an involuntary filing has no effect on the affairs of the debtor. 11 U.S.C. § 303(f).
Thus, a debtor actually served and actually appearing to contest an involuntary proceeding cannot dispute subject matter jurisdiction when an amendment later corrects a misnomer. Nor can potential creditors who were not among those to file an involuntary petition. The party the Bankruptcy Code is concerned about, prior to the appointment of a trustee and the entry of an order for relief, is the debtor. It would be a different story if the debtor were not made aware, leading to a true “secret bankruptcy,” and an order for relief entered without giving the debtor a chance to object, all because of a misnomer. Here, everyone knew who the debt- or was; between Case No. 1 and Case No. 2, there was no confusion as to which entity was before the Court, and the Court’s subject matter jurisdiction is not at issue.
In sum, Synergistic’s attempt to cast this case of misnomer as a question of subject matter jurisdiction fails. Here, the involuntary debtor was properly served, appeared numerous times in court, and informed a creditor of Case No. 2. Moreover, there is no evidence to suggest anyone was misled. As such, there is no doubt that the Bankruptcy Court had subject matter jurisdiction.
* * * * * *
We therefore affirm the District Court on the issue of subject matter jurisdiction, but vacate and remand with instructions to dismiss the appeal on all other grounds raised by Synergistic.
. Notably, it is the validity of the filing in Case No. 2 that makes the check issued to Synergistic a payment to a creditor within the preference period. This seems to be the motivation behind this appeal.
. We recognize that Synergistic disputes the existence of subject matter jurisdiction in the Bankruptcy Court. As discussed below, we agree with the Bankruptcy Court that it had jurisdiction.
. Synergistic alleges that the Bankruptcy Court should not have appointed a trustee, should not have consolidated the two involuntary cases, failed to hold an evidentiary hearing, and erred by considering the answer to the petition in Case No. 2 withdrawn upon the filing of the voluntary petition in Case No. 3. Because Synergistic lacks standing to raise these objections, we express no opinion concerning them.
. Limited liability companies are eligible to file bankruptcy petitions because they are sufficiently similar to a corporation and limit responsibility for the debts to the capital subscribed. See 11 U.S.C. § 101 (9)(A)(ii); In re 4 Whip, LLC, 332 B.R. 670, 672 (Bankr.D.Conn.2005); In re Giampietro, 317 B.R. 841, 844 n. 3 (Bankr.D.Nev.2004); In re ICLNDS Notes Acquisition, LLC, 259 B.R. 289, 293 (Bankr.N.D.Ohio 2001). That is obvious here because QDN has filed a voluntary Chapter 11 petition in Case No. 3 without objection as to eligibility.
. While it lacks standing even to make the argument, we note that Synergistic also attempts to invoke our decision in In re Owens Corning, 419 F.3d 195 (3d Cir.2005), and the principles of substantive consolidation. That argument completely misses the mark because this case has nothing to do with substantive consolidation.
. This is borne out in Synergistic's Reply Brief at 8-9.
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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/8477266/
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OPINION
AMBRO, Circuit Judge.
Kasim Bookman pled guilty to a single-count indictment charging him with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). The District Court sentenced Bookman to 75 months’ imprisonment. He challenges that sentence on two grounds: (1) the Court committed procedural error by applying a presumption of reasonableness to the United States Sentencing Guidelines when determining his sentence; and (2) the Court’s application of the 18 U.S.C. § 3553(a) sentencing factors was substantively unreasonable. We disagree and therefore affirm.
I.
On August 8, 2007, police officers were patrolling a high-crime area of Camden, New Jersey. While on patrol, the officers observed a disruptive crowd loitering at a street corner. They got out of their car and approached the crowd. One officer spotted Kasim Bookman placing his hands in the middle of his waistband, suggesting that he might be attempting to conceal a weapon. Bookman then began to flee. The officers ordered him to stop, but Bookman continued running. When he *880was finally apprehended, the officers discovered a fully loaded (and operable) Smith & Wesson .88-caliber handgun in his waistband.
A federal grand jury subsequently charged Bookman in a single-count indictment for unlawful possession of a firearm by a convicted felon. Shortly thereafter, he pled guilty. At Bookman’s sentencing hearing, the District Judge denied his motion for a downward departure, considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and (as already noted) sentenced Bookman to 75 months’ imprisonment. (The sentence also included three years of supervised release.) Seventy-five months in prison was within the advisory Guidelines range of 70-87 months. Bookman filed a timely notice of appeal.1
II.
In imposing a sentence, the District Court must complete a three-step process. First, the Court must “correctly calculate] the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Guidelines serve as “the starting point and the initial benchmark.” Id. From there, our “precedent instructs district courts to conduct a second step, which is to ‘formally rule on the motions of both parties and state on the record whether [they are] granting a departure and how that departure affects the Guidelines calculation ....’” United States v. Wise, 515 F.3d 207, 216 (3d Cir.2008) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006)).
At step three, “after giving both sides the chance to argue for the sentences they deem appropriate, the court must exercise its discretion by considering all of the § 3553(a) factors and determining the appropriate sentence to impose.” Id. at 216-17. Bookman’s challenges are both related to this third step: first, that the District Court committed procedural error by presuming that a within-Guidelines sentence was reasonable; and second, that it imposed a substantively unreasonable sentence when it applied the § 3553(a) sentencing factors.
III.
As an appellate court, we are aware of our limited role in the federal sentencing regime. Indeed, “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall, 552 U.S. at 46, 128 S.Ct. 586. “As an appellate court, our role is two-fold.” Wise, 515 F.3d at 217. First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors.” Gall, 552 U.S. at 51, 128 S.Ct. 586.
Second, we “consider the substantive reasonableness of the sentence imposed. ...” Id. at 51, 128 S.Ct. 586. “For a sentence to be substantively reasonable, a district court must apply the § 3553(a) factors reasonably to the circumstances of the case.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir.2007). In this analysis,“[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
Turning first to Bookman’s procedural argument, we conclude that the Dis*881trict Judge did not presume that a within-Guidelines sentence was reasonable. See Gall, 552 U.S. at 50, 128 S.Ct. 586 (holding that a district judge “may not presume that the Guidelines range is reasonable”). In particular, we reject Bookman’s argument that certain statements by the Judge violated Nelson v. United States, — U.S. -, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009). In Nelson, the sentencing judge unambiguously presumed the reasonableness of the Guidelines, explaining to the defendant that “the Guidelines are considered presumptively reasonable.” Id. at 891 (emphasis added). Despite Bookman’s efforts to cherry-pick certain passages from the record to suggest reversible error, we reject his argument.
In this case, the record demonstrates that the Judge considered the Guidelines as merely advisory. She correctly stated, “I am to begin my analysis with the [Gjuideline range and ... give weight to the advisory [Gjuideline range of 70 to 87 months, and I will do that, but it will be one factor that I will consider....” App. 166 (emphasis added). The Judge added, “As the Supreme Court and the Third Circuit have stated, a within-[G]uidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, and so I must consider the other factors that determine whether or not a sentence within the [Gjuideline range is supported.” Id. From there, the Judge considered each of the § 3553(a) factors and concluded that, given these factors in the context of this case, “a sentence within the [Gjuideline range is reasonable.” Id. at 167. Nowhere in the record is there any indication that she presumed the reasonableness of the Guidelines, as did the judge in Nelson.
Because the District Judge committed no procedural error, we turn now to the substantive reasonableness of Book-man’s sentence. He argues that the Judge misapplied the § 3553(a) sentencing factors and assigned insufficient weight to several mitigating factors, including his “motive for possessing the gun,” the “nuances of [hisj prior record,” and “the history and characteristics of the offender.” Appellant’s Brief 19-21. We reject this argument.
The record demonstrates that the Judge considered each of the § 3553(a) sentencing factors in imposing her sentence and clearly articulated the dangers of a firearm in the hands of Bookman, given his criminal history and the surrounding context of his offense. This is a reasonable conclusion, even in light of various mitigating factors offered by Bookman and his argument that the Judge gave too much weight to U.S.S.G. § 2K2.1.2 Although Bookman was only 22 years old when he committed the offense before us, he has been convicted multiple times for drug-related offenses (including the distribution of cocaine on school property), as well as aggravated assault with a firearm and providing false information to the police. In the current offense, Bookman was convicted of carrying a loaded firearm on the streets of Camden. Given Bookman’s criminal record, it was certainly reasonable for the District Judge to worry about Bookman’s “evolving progression of criminal conduct.” Id. at 167.
* * :[{ * i¡: *
In this context, we hold that Bookman’s sentence of 75 months was reasonable, and that the District Court did not abuse its discretion in imposing this within-Guidelines sentence. Hence we affirm.
. The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction over Bookman's challenge to his sentence under 18 U.S.C. § 3742(a) as well as 28 U.S.C. § 1291.
. U.S.S.G. § 2K2.1 is the Guideline governing the offense of felons in possession of firearms.
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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/8477268/
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OPINION
PER CURIAM.
Appellant David Maresea appeals a decision of the District Court granting Defendant’s motion for summary judgment. For the reasons set forth below, we will affirm the judgment of the District Court.
I.
Appellee Blue Ridge Communications (“Blue Ridge”) owns and operates cable television distribution facilities in Northeastern Pennsylvania. Appellant David Maresea was employed by Blue Ridge as a cable installer from October 1995 until he was injured in a job-related automobile accident on June 29, 1999. After December 19, 2000, Maresea did not return to active work at Blue Ridge. He received total disability benefits as well as group health insurance coverage from Blue Ridge from May 2001 until April 2006.
On August 18, 2002, Blue Ridge, through its insurer or third party administrator, Inservco Insurance Services, Inc., filed a petition for termination or suspension of Maresca’s benefits with the Pennsylvania Department of Labor and Industry’s Bureau of Workers’ Compensation. In an opinion issued in November 2004, the Workers’ Compensation Judge denied Blue Ridge’s request to terminate benefits, finding that it had not met its burden to prove that Maresea had fully recovered from his June 1999 injury or was capable of returning to work without restrictions.
Maresea eventually settled his workers’ compensation claim through a compromise and release agreement on April 27, 2006, in which he received a lump-sum payment • of $38,000. After Maresea settled his workers’ compensation claim, Blue Ridge sought to end Maresca’s employment with the company as well as stop paying his health insurance benefits. On April 28, 2006, Blue Ridge sent Maresea a letter notifying him that his insurance benefits had ended because he had been terminated pursuant to a provision in the work agreement between Blue Ridge and the union representing Maresea that eliminated a worker’s seniority after five consecutive years of time off for a work-related injury.
Maresea contended that he retained the right to seek re-employment with Blue Ridge and that the company failed to accommodate his disability. Unable to reach an agreement, Maresea filed a complaint in the District Court in June 2008 contending that: 1) Blue Ridge terminated his employment in violation of the Americans with Disabilities Act (“ADA”); and 2) Blue Ridge violated the Age Discrimination in Employment Act (“ADEA”) when it fired him. Maresea sought both compensatory and punitive damages.
Following discovery, Blue Ridge moved for summary judgment on both of Mares-ca’s claims. The District Court granted Blue Ridge’s motion, finding that Maresea was unable to establish a prima facie case for either claim. Maresea filed a timely notice of appeal and argues that because there are genuine issues of material fact, the District Court erred in granting summary judgment.
II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise pie-*884nary review over the District Court’s decision to grant summary judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995). However, a party opposing summary judgment “must present more than just ‘bare assertions, conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005).
III.
After a careful review of the record, we find that the District Court properly granted summary judgment in favor of Blue Ridge on both of Maresca’s claims. We will first address the District Court’s dismissal of Maresca’s ADA claim.
Under the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must demonstrate that he: (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.2006). The District Court concluded that Maresca was unable to establish either that he has a disability within the meaning of the ADA or that he suffered an adverse employment decision.
As to the first prong, in order to establish the existence of a “disability” under the ADA, a plaintiff must show that: (1) he has a physical or mental impairment that substantially limits one or more major life activities; (2) he has a record of such impairment; or (3) he was “regarded as” having such an impairment by his employer. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 359 (3d Cir.2000).
We agree with the District Court that Maresca was unable to establish a prima facie case of disability discrimination as he was unable to demonstrate that he has a disability. At his November 2008 deposition, he testified unequivocally that he did not have any physical problems or limitations as of April 2006 — the date of his termination — and that he was able to return to work at that time. (See Plaintiffs Deposition, Exh. 1 to Defendants’ Motion for Summary Judgment at 14-15.) There is no medical evidence in the record suggesting otherwise.1 Accordingly, we agree with the District Court that Maresca was not disabled within the meaning of the Act and could not establish his prima facie case of disability discrimination.
Furthermore, we agree with the District Court that even if Maresca could demonstrate that he was disabled, he could *885not show that he suffered an adverse employment decision. Maresca never sought to return to Blue Ridge. At his deposition, he testified that he never asked to return to the company as a cable installer or in any other position. An employer cannot be expected to assume that an employee wishes to apply for an accommodation, job or transfer. See Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). Accordingly, the District Court properly granted summary judgment in favor of Blue Ridge as Maresca was unable to establish his prima facie case.
We also find that the District Court properly granted summary judgment in favor of Blue Ridge as to Maresea’s ADEA claim. Like his ADA claim, the Court concluded that Maresca was unable to establish a prima facie case for age discrimination under the Act.
Federal courts examine ADEA claims under a modified version of the familiar burden-shifting analysis described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 234 (3d Cir.1999). A plaintiff must initially establish a prima facie case of age discrimination. Id. A prima facie case of age discrimination requires proof that: (I) the plaintiff was at least 40 years old; (ii) he suffered an adverse employment decision; (iii) he is qualified for the position; and (iv) the employer gave more favorable treatment to an employee who is sufficiently younger to permit an inference of age discrimination. Tomasso v. Boeing Co., 445 F.3d 702, 706 n. 4 (3d Cir.2006).
The District Court determined that Maresca was unable to establish a prima facie case because he could not show that he suffered an adverse employment action. As we discussed earlier, there is no record evidence to suggest that Mares-ca requested to return to Blue Ridge in any capacity. Thus, it cannot be said that Blue Ridge denied him an opportunity to return to work despite being qualified. Moreover, there is simply no evidence that Blue Ridge denied Maresca any work because of his age. Summary judgment was therefore appropriate.
For all of these reasons, we will affirm the judgment of the District Court.
. Likewise, there is no record evidence suggesting that Blue Ridge "regarded" Maresca as disabled. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir.2002). Blue Ridge never indicated that it considered Maresca disabled. In fact, the company contested Maresca's disability vigorously on several occasions before the Workers’ Compensation Board.
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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/8477270/
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Kenneth Goenaga appeals the District Court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts.
Goenaga pled guilty to one count of conspiracy to distribute and possess with the intent to distribute heroin and cocaine base (known as “crack cocaine”), in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court found Goenaga’s offense level to be 34, with a criminal history category of VI, yielding a Sentencing Guidelines range of 262 to 327 months of imprisonment. However, the offense contained a statutory maximum of 20 years, or 240 months.
Goenaga provided substantial assistance with the Government’s investigation, and the Government submitted a motion for a downward departure pursuant to U.S.S.G. § 5K1.1, recommending Goenaga receive a sentence of no more than 120 months. The District Court granted the Government’s motion and adopted a downward departure to offense level 26, providing for a range of 120 to 150 months. The District Court then sentenced Goenaga to 120 months of imprisonment, finding that this sentence satisfied the statutory factors set forth in 18 U.S.C. § 3553(a).
After Goenaga’s sentence was imposed, the Sentencing Commission enacted Amendment 706, which reduced the offense level for offenses involving crack cocaine by two levels. Goenaga submitted a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court calculated that his adjusted offense level *887would be 32, yielding a Guidelines range of 210 to 240 months’ imprisonment. Applying an equivalent § 5K1.1 downward departure yielded a range of 105-120 months. Goenaga argued that his sentence should be reduced to the bottom end of this range, 105 months, but the District Court declined to reduce Goenaga’s sentence below the original sentence of 120 months.
In explaining its decision, the District Court first noted that the 120-month sentence fell within the newly calculated Guidelines range. It further explained that the “offense conduct described at the sentencing hearing ... was particularly troubling.” Appendix (“App.” 3). The court noted that Goenaga was “intimately involved in trafficking heroin and cocaine” in two different states, that a “number of individuals trafficked heroin on [his] behalf,” and that “[s]everal victims overdosed and suffered serious injury after ingesting heroin attributed to [his] organization.” App. 6-7. “Pursuant to § lB1.10(b)(l)” and considering “the nature and seriousness of the offense” and “the danger defendant poses to the community,” the District Court concluded that Goenaga’s sentence did not warrant a reduction. App. 6.
Goenaga timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3582(c). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s legal interpretation of relevant statutes and Guidelines, and we review for abuse of discretion the District Court’s ultimate ruling on a motion to reduce a sentence pursuant to § 3582(c)(2). See United States v. Mateo, 560 F.3d 152, 154 & n. 2 (3d Cir. 2009).
Section 3582(c)(2) grants a sentencing court discretion to reduce the prison term of a defendant who “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. ...” 18 U.S.C. § 3582(c)(2). Such a reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. Relevant to this case, the Sentencing Commission has stated that in considering a § 3582(c)(2) motion, the sentencing court “shall consider the nature and seriousness of the danger to ... the community that may be posed by a reduction in the defendant’s term of imprisonment,” along with the sentencing factors set forth in 18 U.S.C. § 3553(a). U.S.S.G. § lB1.10(b), cmt. n. 1(b)(1) — (ii).
The District Court properly evaluated the seriousness of Goenaga’s offense and the potential risk to the community before determining that Goenaga’s sentence should not be reduced any further. See App. 6-7. Goenaga contends that every aspect of the Sentencing Guidelines must be treated as purely advisory in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny. However, we have held that Booker does not apply to a § 3582(c)(2) re-sentencing. United States v. Dillon, 572 F.3d 146, 148 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009). Unlike in Dillon, the District Court in this case did not deny Goenaga’s motion because it felt “bound by the guidelines range.” Id. Rather, the District Court exercised its discretion and determined that Goenaga’s sentence appropriately accomplished the goals of sentencing. The District Court did not misapply the law or abuse its discretion in denying Goenaga’s motion for a reduction in sentence.
*888III
For the foregoing reasons, we will affirm the judgment of the District Court.
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https://www.courtlistener.com/api/rest/v3/opinions/8477274/
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CHAGARES, Circuit Judge.
Appellants Baretta Bentley and Pernela Haynes (collectively “plaintiffs”) appeal the District Court’s grant of summary judgment in favor of their former employer, Millennium Healthcare Centers II, LLC, doing business as CareOne at Dunroven, formerly known as Dunroven Healthcare Center (“Dunroven”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Prior to their termination, plaintiffs worked as certified nurse’s aides (“CNAs”) at Dunroven. On December 15, 2004, plaintiffs and two other CNAs, Alta Marie Brutus and Marcia Grant, were working their regular shift from 3:00 p.m. to 11:30 p.m. The CNAs that were scheduled to begin the next shift were unable to replace them, and a nurse asked all four on-duty CNAs if they could stay past the end of their shifts. None of them agreed to stay, and they all clocked-out at the scheduled end of their shifts. The following day, Dunroven fired all four CNAs.
On December 17, 2004, two Dunroven Administrators' — Margot Domingo, licensed nursing home administrator, and Helen Graca, human resources and accounts payable clerk — interviewed each of the terminated employees and obtained written statements describing their moti*893vations for refusing to work beyond their scheduled shifts.
Bentley explained that she had left because her blood pressure was high and that she needed to go home to take medication. She claimed that a nurse (not employed by Dunroven) had taken her blood pressure, but she was unable to substantiate this version of events. Haynes explained that she left because she had seen the CNA who was scheduled to replace her arrive to start her shift, but this CNA did not clock in until approximately 12:30 a.m., and Haynes later admitted that she left because her brother had arrived to give her a ride home.
Grant explained that she left because she had experienced a bad asthma attack on the previous day, had visited her treating physician on the morning before her shift, and had felt tightness in her chest during her shift on December 15. Grant later verified this account with a fax from her physician, who indicated that Grant had been to his office on December 15. Brutus explained that she left because her oldest son left home at approximately the same time as she typically returned home, and she was concerned about leaving her other, younger children at home unattended. This concern was corroborated by Graca’s testimony that she had previously assisted Brutus with an investigation by the Department of Youth and Family Services into a neighbor’s complaint that minor children had been left unattended at Brutus’ home.
After these interviews, Grant and Brutus were rehired, but plaintiffs were not. Plaintiffs claim Grant and Brutus were rehired because they were younger; at this time, Bentley was sixty-six years old, Haynes was sixty-one years old, and Grant and Brutus were each forty-five years old. Dunroven claims that Grant and Brutus were rehired because they provided verifiable information regarding their decision to leave work on December 15, whereas plaintiffs did not.
Bentley and Haynes each filed actions against Dunroven, alleging that they had been terminated because of their ages, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C §§ 621-634, and the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:5-1-10:5-49, and in breach of their employment contracts. Their cases were consolidated, and on October 22, 2008, Dunroven moved for summary judgment. The parties stipulated to the dismissal of plaintiffs’ contract claims, and by Order dated January 21, 2009, the District Court granted summary judgment for Dunroven, dismissing plaintiffs’ age discrimination claims. The District Court found that plaintiffs had established a prima facie case of discrimination but failed to show Dunroven’s legitimate, non-discriminatory reason for the adverse employment actions was a pretext for discrimination.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367(a), and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. This Court reviews the District Court’s grant of summary judgment de novo, applying the same standard that the District Court was obligated to apply. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir.2008). “Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. (citation omitted); see Fed.R.CivJP. 56(c). On summary judgment, “we must view the facts in the light most favorable to the non-moving party, and draw all reasonable inferences therefrom in that party’s favor.” N.J. Transit Corp. v. Har-*894sco Corp., 497 F.3d 323, 326 (3d Cir.2007) (citation omitted).
III.
We evaluate plaintiffs’ claims following the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which applies to plaintiffs’ claims under both the ADEA and the NJLAD. Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir.2004). Under the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s termination. Id. If the employer is able to articulate such a reason, the plaintiff must then show that the proffered reason was a pretext for a racially discriminatory decision. Id. at 804-05, 93 S.Ct. 1817.
Plaintiffs established a prima facie case of discrimination by demonstrating that they were over 40, that they were qualified for their positions, that they suffered adverse employment actions, and that Dun-roven retained (by firing and rehiring) two significantly younger employees who were similarly situated to the plaintiffs. Dunro-ven met its burden of production by articulating a legitimate, non-discriminatory reason for its decision: that the two rehired employees presented legitimate and verifiable excuses for their behavior, whereas plaintiffs did not. We agree with the District Court that plaintiffs failed to meet their ultimate burden of establishing that Dunroven’s proffered justification was pre-textual or that discrimination was a factor in Dunroven’s decision.
Plaintiffs have not presented any evidence suggesting that they were terminated, and the other two CNAs rehired, because of the age differences. Instead, plaintiffs argue that Dunroven’s proffered justification was pretextual by highlighting certain discrepancies in the testimony regarding the circumstances under which Dunroven’s employment decisions were made: one witness did not know why Grant and Brutus were hired, Plaintiffs-Appellants’ Br. 14 (citing Appendix (“App.”) 318-19), another witness did not recall why plaintiffs were terminated, id. 15 (citing App. 355-56), and several of the witnesses appeared to disagree on who was specifically responsible for the employment decisions, id. 15-20 (citing App. 293-95, 297-98, 306, 345, 348-49, 350-52). None of these apparent inconsistencies casts doubt on the reason that Dunroven terminated plaintiffs while retaining the other two CNAs involved in the same incident. Plaintiffs have therefore failed to meet their burden to show Dunroven’s legitimate, nondiscriminatory reason for the adverse employment action was a pretext for discrimination.
Plaintiffs remaining contentions also lack merit. Plaintiffs argue that discrimination cases often turn on factual questions, id. 24, and that employment discrimination can be subtle and difficult to detect, id. 25-26. Neither of these observations warrant reversing the District Court’s grant of summary judgment. Plaintiffs also point out that New Jersey anti-discrimination law occasionally deviates from federal law, id. 28-29; see McKenna v. Pac. Rail Serv., 32 F.3d 820, 828 (3d Cir. 1994), but plaintiffs face the same burden under both statutes. “[U]nder New Jersey law, as under federal law, plaintiffs have always retained the ultimate burden of demonstrating that the actions they challenged were due to discrimination.” McKenna, 32 F.3d at 828 (citations omit*895ted). Plaintiffs failed to meet their burden to demonstrate that Dunroven’s proffered justification was pretextual, and the District Court properly granted summary judgment for Dunroven.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
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https://www.courtlistener.com/api/rest/v3/opinions/8477276/
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OPINION
AMBRO, Circuit Judge.
Victoria Beeks appeals from the District Court’s order affirming the determination of the Administrative Law Judge (“ALJ”) *896denying her claim for Social Security benefits.1 For the reasons that follow, we vacate the District Court’s order affirming the ALJ’s decision and remand the case with instructions to return it to the Commissioner for further proceedings consistent with this opinion.
Because we write solely for the parties, we do not recite the facts giving rise to this appeal.2 We exercise plenary review over legal issues and review the ALJ’s factual findings to determine whether they are supported by substantial evidence. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir.2005). “Substantial evidence has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.2003) (internal quotation marks and citations omitted).
To determine disability, the ALJ uses a five-step sequential evaluation process. 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). If a finding of disability or non-disability is made at any point in the sequential analysis, the ALJ does not review the claim further. 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ considers whether the claimant is engaged in substantial gainful activity (“SGA”). Id. § 404.1520(a). If he or she is so engaged, the claimant is not disabled regardless of his or her medical condition. Id. § 404.1520(b). If the claimant is not engaged in substantial gainful activity, step two requires the ALJ to consider whether an impairment or combination of impairments exists that significantly limits the claimant’s physical or mental ability to do basic work activities. Id. § 404.1520(c). If the claimant’s condition is deemed severe, the analysis continues to step three, in which the ALJ determines whether the claimant’s impairments meet all the specific medical criteria of one of the impairments listed in an appendix to the regulations, or, taken as a whole, are medically equal to one of them. Id. § 404.1520(a)(4)(iii). If so, he or she is found disabled and entitled to benefits; if not, the ALJ moves on to step four. Id. § 404.1520(d), (e). There, the ALJ assesses the claimant’s “residual functional capacity.” Id. § 404.1520(a)(4)(iv). If the claimant is deemed capable of doing his or her “past relevant work,” the ALJ will find that he or she is not disabled. Id. If the claimant cannot perform past relevant work, then the ALJ proceeds to the final step, step five, to determine whether there is other work in the national economy that the claimant can perform. Id. § 404.1520(a)(4)(v).
Our problem at the outset is that we cannot determine the basis for the ALJ’s ruling at step one. Substantial work “involves doing significant physical or mental activities,” and “gainful work” is done “for pay or profit.” Id. § 404.1572. Under the regulations, earnings derived from the work activity are generally the primary consideration in evaluating the work for substantial gainful activity purposes.3 See *897id. § 404.1574(a)(1) (“Generally, if you worked for substantial earnings, we will find that you are able to do substantial gainful activity. However, the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.”). If a claimant’s earnings exceed guidelines set out in the regulation, a presumption arises that the claimant is engaged in substantial gainful activity. Work may be “substantial” even if it is done on a “part-time basis.” Id. § 404.1572(a). However, a claimant may rebut the presumption by showing that his or her work is done under special conditions. See id. § 416.973(c) (“If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity.”) (listing examples of special conditions).
Throughout the alleged period of disability, Beeks was employed part-time (20 hours per week) as a school aide. She was laid off in August 2006, about a month prior to the administrative hearing, due to funding cutbacks by the city. A.R. 288. At the time of her layoff, she was earning $10.50 per hour. Prior to 2006, her annual earnings were as follows: $7,990 in 2002, $8,956.50 in 2003, $7,145.25 in 2004, and $7,883.88 in 2005. A.R. 56.
At step one, the ALJ found that Beeks “was working during most of the time she alleged disability,” earning $10.50 per hour, 20 hours per week. A.R. 20. While Beeks claimed she was afforded special accommodations at work, the ALJ found that those accommodations consisted merely of co-workers occasionally helping her, and this was not a formal accommodation. The ALJ concluded that, as compared to the other employees in her position, Beeks worked the same number of hours, was expected to do the same work, and was paid the same amount. Beeks’s recent layoff resulted from funding cuts, not her disability, and the ALJ noted that Beeks was collecting unemployment, for which she must certify she is ready, willing, and able to work. The ALJ concluded that Beeks’s employment “equated to substantial gainful activity,”4 and that “the only reason she [wa]s not working more hours is that her job does not allow for any more, not for any other reason.” A.R. 19-20.
In this analysis, however, the ALJ failed to consider (or mention) that Beeks’s earnings as a school aide after the alleged onset of her disability, except in 2006, were less than the average monthly allowance for presumed substantial activity. To illustrate, dividing Beeks’s 2004 earnings by the twelve months in which they were earned, she earned an average of $595.44 per month in 2004, below the substantial gainful activity earnings guideline for 2004 of $810. See http://www.ssa.gov/ OACT/COLA/sga.html. The same holds true for 2002 ($665.83, below the $780 threshold), 2003 ($746.38, below the $800 threshold), and 2005 ($656.99, below the $830 threshold). For these years, Beeks’s employment is not presumptively substantial activity. Because the ALJ failed to recognize this issue and consider it in his step one analysis, we must vacate and remand.
We note further that the ALJ continued to steps two through four without stating whether he was proceeding in the alternative or proceeding past step one only as to the period in which Beeks was unemployed *898(after August 2006). While we could reconcile the ALJ’s analysis by concluding that steps two through four analyzed whether Beeks was disabled only during the period she was unemployed, this would be guesswork on our part. Moreover, at step four “past relevant work” must also be substantial gainful activity. 20 C.F.R. § 404.1560(b)(1). The ALJ concluded that Beeks had the residual functional capacity to perform light work and could perform her past relevant work as a school aide. The ALJ’s reconsideration of step one on remand may affect whether Beeks’s work as a school aide constitutes “past relevant work.”
Therefore, we vacate and remand for further elaboration of the step one analysis, particularly as to whether Beeks’s work as a school aide constituted SGA throughout the entire alleged period of disability.
. The ALJ’s decision became the Commissioner's final decision on July 27, 2007, when the Appeals Council denied Beeks's request for review of the ALJ’s decision. See 20 C.F.R. §§ 404.981, 416.1481.
. The District Court had jurisdiction under 42 U.S.C. § 405(g), and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
.The ALJ will consider "other information in addition to ... earnings if there is evidence indicating that [the claimant] may be engaging in substantial gainful activity or that [the claimant is] in a position to control when earnings are paid ... or the amount of wages paid....” 20 C.F.R. § 404.1574(b)(3)(ii).
. A heading in the AU's decision states that Beeks “has not engaged in substantial gainful activity since October 1, 2002, to the alleged onset date.” A.R. 18. We agree with the District Court that the ALJ's inclusion of the word "not” in this heading was a typographical error, given the analysis the ALJ conducted at step one.
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https://www.courtlistener.com/api/rest/v3/opinions/8477278/
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OPINION
BARRY, Circuit Judge.
Ezeadigo Chinedu Oduche-Nwakaihe (“Oduche”) petitions for review of (1) the June 4, 2008 order of the Board of Immigration Appeals (the “BIA”), vacating the Immigration Judge’s (“IJ”) order granting deferral of removal pursuant to the Convention Against Torture (“CAT”), and (2) the BIA’s October 16, 2008 order denying his motion to reopen his removal proceedings to permit him to submit evidence of the State Department’s 2007 Country Reports for Nigeria (“2007 Country Reports”). We will deny the petitions for review.
BACKGROUND1
Oduche, a native of Nigeria, was admitted to the United States on March 27, 2003, with the status of a lawful permanent resident alien. On June 15, 2007, he pled guilty to rape in the fourth degree in Kent County, Delaware.2 On September 11, 2007, the U.S. Department of Homeland Security commenced removal proceedings against him by filing a Notice to Appear. At a hearing on December 17, 2007, the IJ found that Oduche’s “conviction for rape in the fourth in Delaware is rape [sic] offense requiring that you lose your permanent residency in the United States and requires your deportation.” (CAR at 173.) On January 7, 2008, Oduche filed an application for asylum, withholding of removal, and protection under CAT.3 (Id. at 262, 266.)
On January 30, 2008, the IJ ordered that Oduche be removed to Nigeria;4 however, although Oduche’s criminal conviction for rape in the fourth degree rendered him ineligible for asylum and withholding of removal, the IJ granted him deferral of removal under Article III of CAT. He explained that Oduche was credible and that his fear of religious persecution was credible, but “because respondent is statutorily precluded from establishing past persecution ... because of his aggravated felony conviction, the Court is not permitted to consider that aspect of the claim.” {Id. at 147.) Thus, the “primary thrust of respondent’s claim ... would be his immediate arrest and detention and jailing in Nigeria upon his arrival as a criminal deportee.” {Id.) The IJ made “an administrative finding of fact” that this practice, carried out pursuant to a directive known as “Decree 33,” was still in effect. (Id. at 150.) He explained that experts in other cases relating to Nigeria had attested to the force of Decree 33 and, as a result, took “administrative notice” that Oduche would be detained upon returning to Nigeria. {Id. at 148,153.)
The IJ then turned to Oduehe’s argument that, once in prison, he would be tortured. Acknowledging that substand*900ard prison conditions do not, generally, constitute torture within the meaning of 8 C.F.R. § 1208.18(a) and that immigration courts should avoid “stringing together a series of suppositions” to show that torture is the likely result, the IJ nonetheless concluded that the relevant Country Reports for Nigeria revealed a “high incidence rate of impunity of police officers using excessive and deadly force on persons and killing persons in custody.” (Id. at 149, 151.) Thus, the IJ concluded that it was more likely than not that, once he was inevitably detained, Oduche would be tortured, and deferred his removal under CAT.5
The government appealed. On June 4, 2008, the BIA vacated the IJ’s decision granting deferral of removal. The BIA did not agree that Oduche would be detained under Decree 33, and rejected the notion that “the continued application or continued enforcement of Decree 33 in Nigeria is a matter that is subject to administrative notice.” (Id. at 2-3.) Oduche had urged the BIA to take notice of the recent 2007 Country Reports, detailing the horrors associated with the Nigerian prison system, but the BIA concluded that despite the “evidence of harsh and life-threatening prison conditions in Nigeria,” Oduche’s case was based on speculation rather than “adequate evidence” that he “more likely than not ” would be tortured upon his return. (Id. at 3.)
On August 29, 2008, Oduche filed a motion to reopen with the BIA, arguing that the BIA had failed to take notice of the 2007 Country Reports, which he claimed would have validated his fears of torture within prison.6 On October 16, 2008, the BIA denied the motion to reopen, finding that the 2007 Country Reports did not resolve the “chain of assumptions that were previously determined to have been made,” including whether he would even be detained in Nigeria, much less be tortured during that detention. (Pet.Br., Ex. B.) It also found that Oduche failed to establish “that the result in this case would be likely to change if the proceedings were reopened.” (Id.)
Pursuant to our order of October 24, 2008, Oduche’s two petitions have been consolidated. In his first petition, now his first claim, Oduche seeks review of the BIA’s June 4, 2008 order directing that he be removed to Nigeria and vacating the IJ’s deferral of removal. His second claim seeks review of the BIA’s October 16, 2008 order denying his motion to reopen the proceedings to permit him to place into evidence the 2007 Country Reports. As that order makes clear, however, the BIA had considered the contentions of the 2007 Reports. (Pet.Br., Exh. B.)
JURISDICTION
Although 8 U.S.C. § 1252(a)(2)(C) limits the federal courts’ jurisdiction to review final decisions ordering the removal of aliens who commit aggravated felonies, § 1252(a)(2)(D) makes clear that courts retain jurisdiction to review “constitutional claims or questions of law raised upon a petition for review....” See Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir.2006); Singh v. Gonzales, 432 F.3d 533, 537 (3d Cir.2006). Oduche explains the various issues at hand, which include whether the IJ erred in taking administrative notice of *901Decree 33, whether the BIA misapplied the CAT standard, whether the BIA adequately explained its decision to vacate the IJ’s deferral of removal, and whether the BIA impermissibly engaged in de novo fact finding. The thrust of the government’s argument is that because these claims — in the government’s view — are “without merit ... they do not present meritorious legal or constitutional claims” and, thus, cannot be reviewed. (Gov’t Br. at 27.) We are satisfied that Oduche has raised at least some questions of law, and that we have jurisdiction to proceed.7
DISCUSSION
Although Oduche raises various issues in this appeal, he ultimately seeks deferral of removal on the ground that he rvill more likely than not be tortured once in prison in Nigeria. We will assume arguendo that Oduche would be imprisoned upon his return to Nigeria and focus on his torture claim.
We review the BIA’s decisions to vacate the IJ’s deferral ruling and refusal to reopen the case under the substantial evidence standard and will uphold the BIA’s determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Sheriff v. Att’y Gen., 587 F.3d 584, 588-89 (3d Cir.2009) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001)). To the extent we consider questions of law and the application of law to facts, our review is de novo. 8 U.S.C. § 1252(a)(2)(D); Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008).
In Pierre v. Attorney General of the United States, we set out the purposes of CAT and the Department of Justice’s role in “promulgat[ing] regulations setting forth the procedures by which individuals could seek relief under the CAT.” 528 F.3d 180, 186 (3d Cir.2008) (en banc). Those regulations make clear that deferral of removal is mandatory where the petitioner demonstrates that it is more likely than not, 8 C.F.R. § 208.17(a) (emphasis added), that he will be subjected to an act “specifically intended to inflict severe physical or mental pain or suffering,” 8 C.F.R. § 208.18(a)(5). As we explained:
[F]or an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act. Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result.
528 F.3d at 189 (internal citation and quotations omitted).
We have applied this standard in the context of detention facilities on numerous occasions in the past. In Auguste v. Ridge, for example, where the petitioner complained of the prison conditions in Haiti, we found that the BIA did not err in its finding that Haitian officials lacked the specific intent to torture him because the deplorable conditions resulted from “Haiti’s economic and social ills” rather than an “intent to inflict severe pain and suffering on detainees.” 395 F.3d 123, 153 (3d Cir. 2005). In Pierre, we affirmed the BIA’s denial of the petition for CAT relief where petitioner claimed that his medical prob*902lems would be neglected by prison officials, resulting in his death. 528 F.3d at 182-83. We held that the petitioner was unable to show that “by imprisoning him, the Haitian authorities have the specific intent to torture him.” Id. at 183. In In Re J-E-, the petitioner testified that upon his return to Haiti, he would be jailed and tortured. In support of his claim, he submitted Country Reports explaining that police mistreatment by means of beatings with sticks and belts, burning with cigarettes, choking, and severe boxing of the ears, was “pervasive in all parts of the country.” 23 I. & N. Dec. 291, 301 (2002). Finding that the record contained only “isolated instances of mistreatment ... that rise to the level of torture,” the BIA concluded that the evidence was “insufficient to establish that it is more likely than not” that the petitioner would be tortured if removed to Haiti. Id. at 301-03. In particular, the BIA held that “[slpecific grounds must exist that indicate the individual would be personally at risk.” Id. at 303.
Oduche ai’gues that there is evidence of routine, widespread prisoner abuse in Nigeria and, thus, that his case is different from Auguste and Pierre, where the harm inflicted on the imprisoned was unintentional and' the result of economic woes. He cites the 2007 Country Reports, which state that officers regularly beat detainees and convicted prisoners. The Country Reports also note that when a United Nations Special Rapporteur on Torture was invited by the Nigerian government “to assess the situation ..., the rapporteur reported that torture was endemic in law enforcement operations, including police custody ... [and that] the methods of torture included flogging with whips; beating with batons and machetes; shooting a suspect in the foot ... suspension from the ceiling; and denying food, water, and medical treatment.” (Pet.Br., Ex. D.)
The acts cited in the 2007 Country Reports are certainly abhorrent. As evidence that he will more likely than not fall victim to these abuses, however, Oduche merely points to the rapporteur’s judgment that they are “endemic” to Nigerian prisons and findings that they “had become routine.” (Pet. 08-2736 Br. at 29.) In its order vacating the deferral of removal, the BIA found that Oduche’s case was “based on a chain of assumptions and a fear of what might happen, rather than adequate evidence that meets his burden of demonstrating that it is more likely than not that he will be subjected to torture .... ” (CAR at 3.) In its order denying Oduche’s motion to reopen, the BIA explained that had it considered the 2007 Country Reports, but that the Reports did not even “address the likelihood that the respondent would be arrested and detained upon his arrival in Nigeria.” (Pet. Br., Ex. B.) The BIA added that “such report does not sufficiently meet the respondent’s burden of demonstrating that it is more likely than not that he will be subjected to torture ... if he is returned to Nigeria.” (Id.)
The IJ conceded that this was a close case, finding, on the one hand, that “we have no evidence of how respondent would be treated ... once he is detained,” but ruling, on the other hand, that Oduche met his burden because of the “high incidence rate of impunity” of officials toward those in custody. (CAR at 149, 151-53.) However, a petitioner must show that the prospective torturer “will have the purpose of inflicting severe pain or suffering by placing him in detention upon his removal from the United States.” Pierre, 528 F.3d at 190. In light of the lack of evidence in this x’ecord addressing whether it is more likely than not that Oduche would fall victim to intentionally inflicted torture while incarcerated in a Nigerian prison, we can*903not say that we are compelled to reach a conclusion contrary to that reached by the BIA.
CONCLUSION
The petitions for review will be denied.
. The record citations in this order refer to the Certified Administrative Record ("CAR").
. Oduche was having a sexual relationship with his eighteen-year-old girlfriend when, at some point, he became sexually involved with her mother as well. This triangle was unsustainable, and the fourth degree rape charge for penetration without consent resulted from the mother's allegations about Oduche’s allegedly nonconsensual activities with her daughter. As the government's brief details, this was not Oduche’s first encounter with Delaware's criminal justice system.
. He cited his adherence to Christian principles, which would result in his suffering harm in Nigeria; his political opinions; and his membership in a particular social group. (CAR at 266.)
. Oduche was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A).
. See 8 C.F.R. § 1208.17 ("An alien who: has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.”).
. The 2007 Country Reports were not issued until March 6, 2008.
. For example, with respect to Oduche's contention that the BIA impermissibly applied the CAT standard for deferral, which the government characterizes as “at odds with the Attorney General's framework for analyzing CAT claims,” Gov't Br. at 27, we have jurisdiction to the extent that this issue "present[s] questions of law, or of the application of law to undisputed fact.” Singh, 432 F.3d at 537-38; Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005).
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OPINION
BARRY, Circuit Judge.
Appellant Gary Haile argues that the District Court erred by improperly delegating authority to the probation officer to decide whether or not Haile should receive a mental health evaluation and treatment as a condition of supervised release. Because the Court was clear that it would make the ultimate decision as to whether a mental health evaluation and treatment would be necessary, we will affirm.
BACKGROUND
Haile pled guilty to a one-count information charging him with Hobbs Act robbery, 18 U.S.C. §§ 1951-52. At his sentencing hearing on January 14, 2009, the District Court imposed a sentence of 168 months’ imprisonment, as well as a three-year term of supervised release. (App. at 39-40.) This appeal challenges the following statement of the Court made while imposing conditions of supervised release:
At the direction of your probation officer, you shall undergo a mental health evaluation and follow the recommendations of that evaluation; including participation in anger management or cognitive therapy. Now, there’s a new case that says that probation officers are not to be charged in essence with that responsibility. It’s a non-precedential case. I’m not sure what that means. I want the record to reflect that the judge will personally supervise the need for that mental health evaluation and any cognitive therapy imposed.”
(Id. at 41.) Haile did not object at sentencing to this statement or to any of the conditions of supervised release. The amended judgment1 issued on February 11, 2009 included a requirement that “Defendant shall undergo a mental health evaluation and follow the recommendations of the evaluation, including participation in anger management or cognitive behavioral therapy.” (Id. at 53.)
Haile appealed. He argues that “the District Court improperly delegated judicial authority to the probation officer.” (Appellant’s Br. at 3.) He “seeks a remand with directions to vacate the mental health condition.” (Id.)
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The parties agree that our review is for plain error. United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir. 2007); United States v. Warren, 186 F.3d 358, 362 (3d Cir.1999).
DISCUSSION
Not surprisingly, the parties offer different interpretations of the challenged statement of the District Court. On the one hand, Haile argues that the Court delegated the decision about whether he should *909receive a mental health evaluation and treatment; on the other hand, the government insists that the Court was clear in its instruction that Haile “was required to undergo a mental health evaluation and treatment.” (Appellee’s Br. at 10.)
In United, States v. Pruden, we labored to strike the appropriate balance between two competing imperatives: namely, the “most important limitation ... that a probation officer may not decide the nature or extent of the punishment imposed upon a probationer” and the reality that “courts cannot be expected to map out every detail of a defendant’s supervised release.” 398 F.3d 241, 250 (3d Cir.2005). To achieve this balance, we adopted the following standard, which we recently reaffirmed in United States v. Heckman, 592 F.3d 400, 409-10 (3d Cir.2010):
If [the defendant] is required to participate in a mental health intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer. On the other hand, if the District Court was intending nothing more than to delegate to the probation officer the details with respect to the selection and schedule of the program, such delegation was proper.
Pruden, 398 F.3d at 250 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir.2001)).
It would be wrong to characterize the District Court’s statement as requiring Haile to participate in a mental health evaluation and subsequent treatment only if the Probation Office determined it was necessary. In stating that it would “supervise the need for it,” the Court made clear that it retained control over the decision. App. at 41; see Heckman, 592 F.3d at 410-11. Moreover, the language of the judgment order gives no discretion to the Probation Office, as it unequivocally states that “the defendant shall undergo a mental health evaluation and follow the recommendations of the evaluation.”2 (App. at 53.)
Thus, because the Court’s oral and written instructions demonstrate that it retained authority over the need for an evaluation and treatment, it did not commit error, much less plain error, in imposing the special condition of supervised release at issue in this appeal. See Heckman, 592 F.3d at 410-11 (finding permissible delegation where “[pjarticipation in the mental health treatment program itself is mandatory, and only the details are to be set by the Probation Office”).
CONCLUSION
The judgment of sentence will be affirmed.
. The judgment had been amended to correct a clerical error. (App. at 50.)
. Our decision in Heckman is instructive. There, the district court stated: "The defendant shall participate in a mental health program for evaluation and/or treatment as directed by the United States Probation Office. The defendant shall remain in treatment until satisfactorily discharged and with the approval of the United States Probation Office." 592 F.3d at 409. We found that this was not an improper delegation because the second sentence — instructing that Heckman “shall remain in treatment ...” — cleared up any ambiguity caused by the sentence that preceded it and "naturally read as requiring mandatory treatment and thus limiting the Probation Office’s discretion.” Id. at 410.
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OPINION
BARRY, Circuit Judge.
Roland Mracek appeals from the District Court’s grant of summary judgment against him in this product liability case. We will affirm.
I.
On June 9, 2005, Mracek underwent a prostatectomy after he was diagnosed with prostate cancer. His surgeon intended to use the “da Vinci robot,” which Mracek claimed was designed, manufactured, and sold by Appellee Intuitive Surgical, Inc. Mracek alleged that the robot malfunctioned during the surgery and displayed “error” messages. The surgical team attempted to make the robot operational, but was unable to do so. A da Vinci representative came to the operating room to assist but could not make the robot functional. Mracek’s surgeon used laparoscopic equipment instead of the robot for the remainder of the surgery. One week later, Mra-cek suffered a gross hematuria and was hospitalized. He now has erectile dysfunction, which he had not suffered from prior to the surgery, and has severe groin pain.
Mracek filed a complaint in state court against Bryn Mawr Hospital and Intuitive Surgical, stating claims of strict product liability, strict malfunction liability, negligence, and breach of warranty. Bryn Mawr Hospital was voluntarily dismissed, and Intuitive Surgical removed the case to the District Court. On March 11, 2009, 610 F.Supp.2d 401, the District Court granted Intuitive Surgical’s motion for summary judgment. Mracek timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is plenary. Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir.2009); see Fed.R.Civ.P. 56(c).
III.
Mracek argues that the District Court improperly granted summary judgment on his strict malfunction liability claim. Mra-cek does not contest the Court’s rulings on his other three claims. See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 n. 11 (3d Cir.2007) (issues not briefed are deemed waived).
Generally, to establish a claim for strict liability, “a plaintiff must demonstrate, inter alia, that the product was defective, that the defect caused the plaintiffs injury, and the defect existed at the time the product left the manufacturer’s control.” Barnish v. KWI Bldg. Co., 980 A.2d 535, 541 (Pa.2009); see Restatement (Second) of Torts § 402A. When a plaintiff is unable to adduce direct proof of a defect, the malfunction theory of liability permits him or her to prove defect with circumstantial evidence. Barnish, 980 A.2d at 541. To do so, a plaintiff must produce “evidence of the occurrence of a malfunction and ... evidence eliminating abnormal use dr reasonable, secondary causes for the malfunction.” Id. (internal quotations and citation *927omitted). “[B]y presenting a case free of ‘abnormal uses’ by the plaintiff and free of ‘other reasonable secondary causes,’ a plaintiff can establish through inference from circumstantial evidence the second and third elements of a 402A case, that the alleged defect caused the injury (as opposed to another cause) and that the defect existed when it left the manufacturer’s control (as opposed to developing after the product left the manufacturer’s control).” Id. at 542.
Importantly, the malfunction theory does not relieve a plaintiff of his or her burden to present evidence creating a genuine dispute of material fact on each element in order to survive summary judgment. Rather, the malfunction theory simply permits a plaintiff to demonstrate these elements through circumstantial, instead of direct, evidence. Id. at 546-47.
The District Court held that Mracek did not offer any evidence to eliminate reasonable, secondary causes for the malfunction of the robot or to demonstrate that the malfunction caused his injury. Mracek contends that the Court erred in so holding because he would offer his own testimony and testimony from two treating physicians, including the surgeon who performed the procedure and his urologist who would testify about his pre- and posh-operative condition. Although he did not submit any expert reports, Mracek argues that it was unnecessary to do so because his treating physicians were not retained in anticipation of litigation, see Fed. R.Civ.P. 26(a)(2)(B), and because the alleged defect is obvious and easily understood by a jury given that the robot displayed “error” messages and was unable to complete the surgery, see Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 415-16 (3d Cir.1999) (expert evidence may be unnecessary where “testimony and pictures may enable the jury to clearly see the construction of the machine and the manner of its use”).
However, separate and apart from whether summary judgment was proper because Mracek failed to produce any expert reports, it surely was proper because he failed to demonstrate a genuine dispute of material fact. Most importantly, there is no record evidence that would permit a jury to infer Mracek’s erectile dysfunction and groin pain were caused by the robot’s alleged malfunction.1 See Bamish, 980 A.2d at 542 (“The courts have noted that while the plaintiff need not demonstrate the actual product defect, the plaintiff ‘cannot depend upon conjecture or guesswork.’ ”) (quoting Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489, 496 (Pa.Super.Ct.1997)). Accordingly, because Mracek did not “introduce evidence from which a rational finder of fact could find in [his] favor,” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir.2005), the District Court properly granted summary judgment against him.
IY.
We will affirm the judgment of the District Court.
. The "Operative Report" describes the "malfunction” of the da Vinci robot, but does not discuss any cause of the malfunction. (App. at 81-83.) The medical records note Mra-cek’s erectile dysfunction, but his urologist did not opine on the cause of that condition. See, e.g., id. at 92 ("[Mracek] had very successful laparoscopic radical prostatectomy several months ago.... His only problem at this time is erectile dysfunction.”).
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OPINION
PER CURIAM.
Selwyn Bowen, proceeding pro se, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Bowen, a native and citizen of Guyana, entered the United States in 1987 as part of Guyana’s national soccer team. In 2001, he was placed in removal proceedings, for he had either entered the United States without inspection or stayed beyond the time allowed under his visa.1 When Bowen failed to attend his hearing in 2002, the Immigration Judge (“IJ”) ordered his removal in absentia. Despite that order, Bowen remained in the United States.
In 2008, Bowen, then represented by counsel, moved to reopen his removal proceeding, arguing, inter alia, that he had not received the Notice to Appear (“NTA”) before the 2002 hearing. The IJ denied the motion and noted that, although Bowen now sought relief under the Convention Against Torture (“CAT”), he had failed to file an application. On appeal, the BIA remanded to the IJ to determine whether Bowen could be charged with having received the NTA. The BIA also denied Bowen’s CAT application, which he had apparently submitted with his appeal.
On remand, the IJ did not conduct fact finding as to whether Bowen had received the NTA. Instead, the IJ appeared to treat the removal proceeding as reopened and held a hearing on Bowen’s new requests for relief: withholding of removal and a new claim under the CAT. At the hearing, Bowen presented several reasons for fearing a return to Guyana: (1) Bowen’s former soccer coach, who allegedly made sexual advances toward Bowen in approximately 1987, apparently still resided in Guyana; (2) the Indo-Gu-yanese led government would persecute Bowen because he was Afro-Guyanese; (3) the Guyanese government would torture him because he would be returning to the country as a deportee; and (4) Guyana lacked the medical resources to treat his health problems. The IJ, rejecting each of these reasons, denied *930Bowen’s requests for withholding of removal and relief under the CAT.
On appeal, Bowen, still represented by counsel, challenged the IJ’s denial of withholding of removal but not the denial of CAT relief. The BIA agreed with the IJ’s conclusion that Bowen had failed to demonstrate his eligibility for withholding of removal. In doing so, the BIA concluded that he had “not demonstrated that his [former] soccer coach targeted him or would seek to target him again on account of his membership in a particular social group, or that the Guyanese authorities would be unable or unwilling to protect him from harm.” (Decision of BIA at 2.) Moreover, the BIA held that Bowen’s documentary evidence did not establish a pattern or practice of persecution against deportees or individuals of Afro-Guyanese ethnicity. Finally, the BIA stated that Bowen had not explained how his medical condition entitled him to withholding of removal. Bowen now seeks review of this most recent BIA decision.2
II.
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003). To meet this standard, the alien must show either (1) past persecution, which creates a rebut-table presumption of future persecution; or (2) that it is more likely than not that he will suffer future persecution if removed to the country in question. See 8 C.F.R. § 208.16(b).
The BIA did not err in rejecting Bowen’s first theory of relief, for he did not show that his former coach’s alleged actions were motivated by Bowen’s race, religion, nationality, membership in a particular social group, or political opinion. Bowen’s second and third theories of relief also lack merit, as we will not disturb the BIA’s finding that the documentary evidence failed to demonstrate that Guyana has a pattern or practice of persecuting deportees or those of Afro-Guyanese ethnicity. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (stating that the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it”). Bowen’s fourth theory of relief fails as well, for he did not show how his inability to obtain medical treatment in Guyana entitles him to withholding of removal. To the extent Bowen now seeks to raise a new, unexhausted theory of relief, we lack jurisdiction to review that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
In light of the above, we will deny Bowen’s petition for review. His motion for a stay of removal is denied as moot. His motion for an extension of time to file additional documents is denied as well. See 8 U.S.C. § 1252(b)(4)(A) (providing that this Court “shall decide the petition only on the administrative record on which the order of removal is based”).
. It is unclear whether Bowen actually had a visa; regardless, he does not dispute the charge of removability.
. We have jurisdiction over Bowen’s petition pursuant to 8 U.S.C. § 1252(a)(1).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
The Northern York County Regional Police Department (“NYCRPD”) and several of its officers appeal from an order of *932the United States District Court for the Middle District of Pennsylvania denying them motion for qualified immunity and summary judgment on Troy and Tammy Hopkinses’ claim of unlawful seizure when Mr. Hopkins was mistaken for a bank robbery suspect. For the following reasons, we will affirm.
I. Background
A. Factual Background
Throughout late 2004 and early 2005, several Sovereign Bank branches in York County, Pennsylvania were robbed by the same armed man. The NYCRPD participated in a task force developed to apprehend the robber. Officers in the task force were given a description of the suspect, identifying him as a large, black male with a muscular build, in his late 20s or early 30s, between 5'10" and 6' tall, weighing between 185 and 200 pounds. The suspect’s method of operation was to approach his targeted bank on foot around closing time, carrying a black or clear plastic bag and a gun. He always wore a ski mask and gloves to cover his features.1 Police also suspected that, because the robber escaped so quickly, a second person was perhaps involved as a driver, and they identified a silver or gray Dodge Stratus, Aspen, or Neon as potential get-away cars. The suspect was reportedly becoming more aggressive with each robbery, and had even taken a hostage at one point.
The NYCRPD set up surveillance at a likely target bank in York, whereby several officers were posted to observe the bank at closing time in nearby unmarked vehicles. The surveillance operation was overseen by Detective David Steffen.
On February 9, 2005, Detective John Vaughn, II was surveilling the front entrance of the bank. Around closing time, Vaughn saw a silver Ford Expedition pull up to the bank’s drive-through service window as the teller was locking the front door of the bank to close for the day. The vehicle then pulled up to the front of the bank, parking perpendicular to the marked spaces and parallel to the bank’s front door. Next, Vaughn saw Mr. Hopkins, the driver, for two or three seconds as he got out of the car and approached the door of the bank. Mr. Hopkins, who has since passed away, was an African-American who stood approximately 6'1" in height and weighed between 370 and 380 pounds. He was wearing baggy clothing and was carrying a white object that appeared to Vaughn to be a bag. He was not wearing a hat, mask, or other head covering of any description. Vaughn watched as Mr. Hopkins approached the front of the bank, pulled on the locked door, and then returned to his vehicle.
As it turns out, Mr. Hopkins went to the bank that day simply to deposit his paycheck. His wife, Tammy, was in the front passenger seat of the Ford Expedition that he was driving and their two children were in the backseat. Mr. Hopkins had gone first to the drive-through window and, when no one answered his call for service, he drove around front, parked his car, leaving it running, and walked up to the door of the bank with his paycheck in hand. He tried to enter the bank by pulling once on the front door. After he realized that the door was locked, he returned to the car and told his wife that the bank had just closed. Later, during his deposition, Mr. Hopkins confirmed that on the evening in question he wore gray *933sweat pants, a T-shirt, and a blue winter jacket, and that he was not wearing a hat or gloves.
After observing Mr. Hopkins, Vaughn contacted Detective Migatulski, who was also participating in the surveillance of the bank that evening, informing him that a large black male with something in his hand had attempted to enter the bank. Migatulski relayed the information to Stef-fen. Several police officers, including Vaughn and Migatulski, followed the Hop-kinses’ vehicle as it left the bank. Meanwhile, the officers ran a record check of the Hopkinses’ vehicle and the dispatcher reported that there was no record available.2
Steffen authorized a stop of the vehicle, based on the suspicion that Mr. Hopkins was the elusive bank robber. Several officers, again including Vaughn, and at least five police vehicles were involved in the stop, which was effected with a strong showing of force.3 The officers drew their weapons, pointing them at the vehicle, and, through a loudspeaker, ordered Mr. Hopkins to roll down his window, turn off the ignition, drop his keys on the ground, and open the door to his vehicle from the outside. Mr. Hopkins complied. He was then ordered to exit the vehicle and get down on his knees, which he did, and was handcuffed. He was fully cooperative, and, understandably, asked why he was being handcuffed. He identified himself as a pastor at the Heart of God Christian Worship Center.
Mrs. Hopkins then got out of car to ask what was going on, and she was ordered to get down on her knees, which she did. She was then handcuffed. Around this time, one of the officers told Mr. Hopkins that he resembled a bank robbery suspect. Mr. Hopkins again informed the officers that he was a local pastor and that he was not a bank robber. At some point after they had both been handcuffed, the Hop-kinses stated that them children were still in the car. A police officer eventually checked and confirmed that there were indeed children in the car.
The Hopkinses remained handcuffed while the officers conferred with each other. Approximately twenty-five minutes elapsed between the initial stop and when the Hopkinses heard a police officer say that the handcuffs would be removed. Five minutes later, police uncuffed the Hopkinses but detained them an additional ten to fifteen minutes before allowing them to go. Before the Hopkinses left, Steffen showed them a photograph of a potential suspect in the robberies, a bald, black man with an earring and goatee.4 Hopkins, who was bald and had a goatee but no earring, told the police that he did not look *934like the man in the photograph. Steffen responded that, at night, Mr. Hopkins did look like the man in the photograph. The entire stop, from start to finish, took about forty to fifty minutes.
B. Procedural History
Based on the events of February 9, 2005, Mr. and Mrs. Hopkins brought this lawsuit pursuant to 42 U.S.C. § 1983, alleging that they were seized in violation of their Fourth Amendment rights. After the close of discovery, all of the defendants moved for summary judgment and argued, among other things, that they are entitled to qualified immunity.5
Reviewing that motion, the District Court first concluded that the stop of Mr. Hopkins constituted an investigatory detention that did not rise to the level of an arrest. Hopkins, 2008 WL 2048699, at *7. Next, the Court concluded that, viewing the facts in the light most favorable to the Hopkinses, “Defendants lacked reasonable suspicion to believe that Troy Hopkins was the bank robber they sought, and thus the initial stop was unlawful.” Id. at 9. Furthermore, the Court concluded that, “[ejven if Defendants had been justified in initially detaining Plaintiffs, their prolonged detention was also unlawful” because, under the circumstances, the defendants failed to “act diligently to confirm or dispel their suspicions” that Mr. Hopkins was the bank robber. Id. at *9. The District Court determined that “a reasonable officer in Defendants’ position would have understood that there was no reasonable suspicion to believe Mr. Hopkins was the bank robber.” Id. Accordingly, the Court found that summary judgment on qualified immunity grounds was not warranted.6 Id. Appellants moved for reconsideration, which was denied. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction in this case under 28 U.S.C. §§ 1331 and 1343. Pursuant to the collateral order doctrine, we have jurisdiction to review a denial of a claim of qualified immunity to the extent that it turns on an issue of law. Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir.2002). However, “[w]e have no jurisdiction ... to review a District Court’s determination that there is sufficient record evidence to support a set of facts under which there would be no immunity.” See Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir.2003). In other words, “we may ‘review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right,’ but we may not ‘consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.’ ” Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002) (quoting Ziccardi, 288 F.3d at 61).
The Hopkinses argue that we lack jurisdiction because the District Court noted the existence of factual issues — for example, whether Mr. Hopkins committed any traffic violations before he was stopped. See Hopkins, 2008 WL 2048699, at *3, n. 4. Although the District Court acknowledged the existence of disputed facts, it resolved *935those facts in favor of the Hopkinses for summary judgment purposes, resulting in a set of facts to which the Court applied the law of qualified immunity. Accordingly, we have jurisdiction to determine whether the District Court correctly applied the law to the set of facts it identified as supported by the summary judgment record.
“On review of a denial of summary judgment, we apply a plenary standard of review.” Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir.2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c)). “In reviewing a denial of summary judgment, this court must view the facts in the light most favorable to the nonmoving party....” Barton v. Curtis, 497 F.3d 331, 334 (3d Cir.2007).
III. Discussion
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (internal quotations omitted). Two inquiries govern whether an official is entitled to qualified immunity: (1) whether the facts alleged establish a violation of a constitutional right, and (2) whether the constitutional right at issue was clearly established.7 Id. at 815-16.
Appellants address only one issue on appeal: whether the District Court erred in finding that the prolonged detention of the Hopkinses was unreasonable and thus violated their constitutional rights. Of course, since the initial stop must have been lawful for the resulting detention to be lawful, we will address the entirety of the officers’ actions in determining whether the Hopkinses constitutional rights were violated.8 The Hopkinses’ answering brief does not directly respond to the Appellants’ brief but instead argues that the Hopkinses were, in fact, arrested and that, even if the initial stop was merely investigatory, it ripened into an arrest. The Hopkinses further argue that the officers’ actions were unlawful because the police action was never supported by probable cause.
The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const, amend. IV. An officer must have probable cause to lawfully arrest an individual. Michigan v. Sum*936mers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). However, probable cause is not required for investigatory detentions that fall short of an arrest. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such investigatory stops need only be supported by an officer’s reasonable suspicion that criminal activity is afoot. Id. at 21, 88 S.Ct. 1868 (“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (footnote omitted)).
“[W]hen police officers make an investigative stop, they may take such steps as are ‘reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.’ ” United States v. Edwards, 53 F.3d 616, 619 (3d Cir.1995) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). Whether an officer’s detention of an individual during an investigatory stop comports with the Fourth Amendment depends on whether, under the circumstances, the length and intrusiveness of the stop was reasonable in light of the officer’s suspicion. See Hensley, 469 U.S. at 234, 105 S.Ct. at 683; see also Terry, 392 U.S. at 19-20, 88 S.Ct. 1868 (“[I]n determining whether [a] seizure ... [is] ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”). “ ‘[I]n assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.’ ” United States v. Frost, 999 F.2d 737, 742 (3d Cir.1993) (quoting United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)).
The District Court correctly determined that, viewing the facts in the light most favorable to the Hopkinses, the officers acted unreasonably in stopping the Hop-kinses’ vehicle based on Detective Vaughn’s observations of Mr. Hopkins at the bank. Mr. Hopkins, though an African-American man of approximately the height ascribed to the robber, was otherwise dramatically different from the described suspect. He weighed between 370 and 380 pounds, which is roughly twice the 185 to 200 pounds the robber was said to weigh, and, even in baggy clothes, a man as large as Mr. Hopkins would not easily be mistaken as having a muscular build.9 Furthermore, Mr. Hopkins’s actions at the bank on the evening of February 9, 2005 did not remotely match the bank robber’s modus operandi. The robber always covered his face and hands and approached the bank on foot, carrying a bag and gun. Mr. Hopkins, by contrast, had nothing covering his face or hands, and he drove up to the bank. He attempted to use the drive-through teller window before driving around to the front of the bank, which *937would seem unusual for any bank robber and was surely so for the robber being sought. Finally, Mr. Hopkins was carrying a single piece of paper, his paycheck, not a gun or a bag. These differences, which are several and significant, suggest that the police acted unreasonably in determining that Mr. Hopkins should be subject to an investigatory stop.10
As for the detention of the Hopkinses, Appellants assert that “the length of time of the detention (40 minutes) was directly attributable to the period of time during which the police officers were exercising appropriate diligence to properly identify the Plaintiffs.” (Appellants’ Amended Op. Br. at 15.) However, as the Hopkinses point out, Appellants do not identify any steps that the officers took during that time to ascertain the Hopkinses’ identities.11 Mr. Hopkins was cooperative throughout the stop and identified himself to the officers several times, but there is no indication that the officers did anything to confirm his identity. And while the robber was suspected of having an accomplice, no one suspected that he brought his family along. The presence of the Hopkinses’ children in the car should have immediately indicated to the police that Mr. and Mrs. Hopkins were not the bank robber and accomplice whom they were seeking.12
Accordingly, we agree with the District Court that, viewing the facts in favor of the Hopkinses,13 the forty minute detention was unreasonable under the circumstances and thus violated the Fourth Amendment. Because we conclude that the District Court correctly determined that the officers’ actions were unreasonable under the lesser standard required to justify an investigatory stop, we need not address whether the District Court correctly decided that the stop never rose to the level of an arrest.14
IV. Conclusion
For the foregoing reasons, we affirm the District Court’s denial of Appellants’ motion for summary judgment as to qualified *938immunity and remand for further proceedings consistent with this opinion.
. Although the suspect was always fully covered, witnesses said they were able to determine his race by observing patches of skin through the eyeholes of his ski mask or between his glove and jacket.
. The vehicle was registered to the Heart of God Christian Worship Center where both Mr. and Mrs. Hopkins were pastors at the time. It is not clear if or when the officers learned that fact.
. The parties dispute whether Mr. Hopkins committed any moving violations before he was pulled over. Defendants assert that Mr. Hopkins was driving aggressively and that he made improper lane changes, and that those actions contributed to their suspicions of criminal activity. The Hopkinses assert that no such moving violations were committed. Since this fact is in dispute, the District Court rightly resolved it in favor of the Hopkinses for purposes of the summary judgment analysis. Hopkins v. Vaughn, Civ. A. No. 06-323, 2008 WL 2048699, at *3 n. 4 (M.D.Pa. May 12, 2008).
.It is not clear where police obtained the photograph or why they were using it, since the suspect was always masked when he committed the bank robberies. Steffen testified that the photograph was one, among others, that he carried in his portfolio because the photographs "appeared to have value at the time." (App. at 510-11.)
. Defendants also moved for summary judgment as to the Hopkinses' request for punitive damages. The District Court granted that aspect of the motion as to the NYCRPD, and that decision is not before us on appeal. Hopkins, 2008 WL 2048699, at *10.
. After the Court ruled on the summary judgment motion, Mr. Hopkins died and Mrs. Hopkins, already a plaintiff in her own right, was substituted for Mr. Hopkins as the ad-ministratrix of his estate.
. At the time the District Court ruled on the summary judgment motion, the Supreme Court’s opinion in Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), required courts to answer the first inquiry in the qualified immunity analysis before turning to the second. After the District Court ruled on the motion, the Supreme Court issued Pearson, in which it held that ’’[¡judges of the district courts and courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the case at hand.” Pearson, 129 S.Ct. at 818.
. Appellants seem to have misunderstood tire District Court's conclusion concerning the initial stop. They state that "as the District Court acknowledged, the investigatory stop was appropriate, and [sic] as was the display of firearms.” (Appellants' Amended Op. Br. at 15.) However, the District Court made no such acknowledgment. Instead, the Court concluded that, despite the use of firearms and handcuffs, the initial seizure of the Hop-kinses was an investigatory stop rather than an arrest, but that the officers lacked the requisite reasonable suspicion to make that investigatory stop, rendering the stop unlawful. Hopkins, 2008 WL 2048699, at * *7-9.
. Despite the more detailed description of the suspect, Detective Vaughn only recalled the suspect being described as a large, black male. First, in light of evidence that a more detailed description of the suspect was given, we must resolve this discrepancy in favor of the Hopkinses, as the District Court appears to have done. See Hopkins, 2008 WL 2048699, at *1 (noting that the specific description "was distributed to all participants in the task force"). Furthermore, to the extent the officers were operating on the less detailed description of the suspect as a "large black male,” such a description is far too general on its own to justify the detention of Mr. Hopkins, especially since he did not act at all in accordance with the suspect's modus operandi. See United. States v. Brown, 448 F.3d 239, 247-48 (3d Cir.2006) (concluding that description that was "general” and “wildly wide of target” did not support reasonable suspicion).
. We note also, incidentally, that the Hop-kinses’ SUV would not likely be mistaken for a Dodge Stratus, Aspen, or Neon, which represented the type of get-away car the robber was suspected to have employed.
. Appellants state that ”[d]uring the brief time that [the Hopkinses] were handcuffed, the officers promptly dispelled their suspicions and released them.” (Appellants' Amended Op. Br. at 11.) However, they provide no explanation of, nor any record support for, the specific actions taken by police to dispel those suspicions. Appellants also state that the police were waiting for positive identification of the Hopkinses which "did not come until a person familiar with the Plaintiffs was able to positively identify them.” (Id. at 14-15.) Again, Appellants do not provide any record support for this statement. Although the record indicates that a minister who knew the Hopkinses arrived at the scene, Mr. Hopkins testified that the minister arrived because his children called him from the car, not because the police called him.
. Indeed, according to Detective Steffen, the officers realized that Mr. Hopkins was not the bank robber at the time they saw the children in the car.
. We would not have our description of the unfortunate events of that evening be understood as reflecting any judgment regarding the ultimate merits of the dispute. We are required at this stage of the proceedings to view the case from a vantage point that gives the Hopkinses every reasonable inference from the facts, which we have done, though we recognize that decisions made at the scene, in potentially dangerous circumstances, are often less clear-cut than they may appear after tire fact.
. Additionally, since Appellants did not challenge the District Court's conclusion that the officers acted unreasonably in light of clearly established law, we need not address that conclusion on appeal.
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OPINION OF THE COURT
PER CURIAM.
Gladys Glenda Bellot-Paul petitions for review of the final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny her petition.
I.
Bellot-Paul petitions for review pro se, but she was represented by counsel before the Immigration Judge (“IJ”) and the BIA. Belloi>-Paul is a citizen of Dominica. She initially entered the United States in 1998, and an IJ ordered her removal but granted her leave to voluntarily depart, which she did. In 2002, she entered the United States again without being admitted or paroled, and the Government instituted removal proceedings on that basis. Bellot-Paul concedes removability and has not sought any relief on the basis of conditions in Dominica. Instead, the only relief she sought was cancellation of removal under what the IJ called the “battered spouse” provision, the provision of the Violence Against Women Act codified at 8 U.S.C. § 1229b(b)(2). That provision allows the Attorney General to cancel an alien’s removal if, inter alia, he or she, or his or her child, has been “battered or subjected to extreme cruelty” by a spouse or parent who is a United States citizen or a lawful permanent resident. See id.1
At a hearing on February 25, 2008, counsel informed the IJ that Bellot-Paul intended to seek cancellation of removal. The IJ advised Bellot-Paul that she was required to fill out a Form EOIR-42B application for cancellation of removal and send it to a Department of Homeland Security (“DHS”) service center in Texas, along with the fees for filing and fingerprinting. The IJ then set a deadline of July 3, 2008, for Bellot-Paul to be finger*942printed and to file with the Immigration Court the properly filed form along with the receipt indicating that the DHS had accepted it for filing. The IJ expressly and repeatedly warned Bellot-Paul that she would deem the application abandoned and order Bellot-Paul’s removal from the United States if she did not receive the properly filed form together with the DHS fee receipt by July 3. (A.66-69.) The IJ also scheduled a hearing on the merits of the application for August 14, 2008.
On July 24, 2008, twenty-one days after the filing deadline, Bellot-Paul filed a motion for a continuance with the IJ. The sole basis for the motion was that Bellot-Paul had not yet received a filing receipt from the DHS or a fingerprinting appointment. Attached to the motion was evidence that Bellot-Paul had mailed her cancellation application with the required fees to the DHS on July 2 (the day before it was due to be filed along with the DHS fee receipt with the Immigration Court) and that the DHS received it on July 7. Also attached was the application for cancellation of removal, which did not bear a fee stamp from the DHS. The IJ denied the motion for a continuance, noting in the order that testimony would be received on August 14. The motion did not explain why Bellot-Paul waited until the day before her application was due to be filed with the Immigration Court to send it to the DHS.
The IJ held a hearing on Bellot-Paul’s application on August 14 as scheduled. The IJ asked Bellot-Paul’s counsel why he had waited so long to send the application to the DHS, but counsel never offered any explanation. (A.73-75.) The IJ then denied the application on the grounds that Bellot-Paul had abandoned it by failing to comply with the July 3 deadline, and also ordered her removal to Dominica. The BIA dismissed Bellot-Paul’s appeal on the same basis, emphasizing the various filing requirements and the IJ’s discretion to set deadlines. Bellot-Paul petitions for review.2
II.
The only ruling that Bellot-Paul challenged before the BIA and challenges on review is the decision to deem her application for cancellation of removal abandoned because she did not file it by the deadline set by the IJ. Under 8 C.F.R. § 1003.31(c), “[t]he Immigration Judge may set and extend time limits for the filing of applications and related documents .... If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed *943waived.” We review application of this provision for abuse of discretion. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008). Accordingly, we may not disturb it unless it is “arbitrary, irrational or contrary to law.” Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir.2006) (denial of a continuance reviewed for abuse of discretion). In making that determination, we review only the BIA’s decision because it issued its own instead of adopting that of the IJ. See Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir.2008). We perceive no abuse of discretion here.
Bellot-Paul does not argue on review, and did not argue before the BIA, that the IJ misconstrued or misapplied any of the regulations governing filing. Instead, as the BIA properly explained, Bellot-Paul was required to submit the filing fee to the DHS, see 8 C.F.R. § 1003.24(a), and then to file her application with the Immigration Court together with either a fee receipt from the DHS or an application for a waiver of fees, see, e.g., 8 C.F.R. § 1003.24(c)(1) (“When an application for relief is filed during the course of proceedings, the fee for that application must be payed in advance to the [DHS].... The fee receipt must accompany the application when it is filed with the immigration court.”).
Nor does Bellot-Paul raise any colorable argument that the IJ or BIA acted arbitrarily or capriciously. She argues that the IJ erred in rejecting her application because she mailed it to the DHS before the deadline that the IJ set for filing it with the Immigration Court and that the amount of time the DHS takes to issue the necessary fee receipt is beyond her control. The IJ, however, specifically advised her on February 25, 2008, that she would have to file her application with the Immigration Court, together with a fee receipt from the DHS, by July 3. The IJ further specifically advised her that her application would be denied if she failed to do so. Yet Bellot-Paul waited for over four and one-half months until the day before her application was due to be filed with the Immigration Court before even sending it to the DHS. She provided no explanation for that delay before the Agency and provides none on review. Thus, we cannot say that the BIA abused its discretion in affirming the IJ’s enforcement of the time limitation. See Arellano-Hernandez v. Holder, 564 F.3d 906, 911 (8th Cir.2009) (“[T]he IJ has the authority to deem applications waived when submitted after the set deadlines. Therefore, the BIA did not abuse its discretion in affirming the IJ’s determination that [petitioner’s] cancellation application was untimely and waived.”); cf. Khan, 448 F.3d at 234-35 (rejecting similar challenge to denial of a continuance).3
Accordingly, we will deny the petition for review.
. Neither the IJ nor the BIA reached the merits of Bellot-Paul's application, but we note that its basis is not entirely clear. The application itself does not state its basis. According to a Virgin Island Department of Health report and other reports that Bellot-Paul attached to a different filing, however, she is estranged from her husband, who apparently is a naturalized United States citizen and has custody of the couple’s nine-year-old son. (A.100-105.) The reports further state that her husband has refused to allow her to visit her son, which has exacerbated what the reports refer to as her mood disorder, depression and chronic anxiety and stress. One of the reports recommends that, in the interest of Bellot-Paul’s mental health, the IJ "assist her in obtaining a more permanent (stable) immigration status so that she can mount a more defensible case for custody of her son.” (A. 100.) We express no opinion on whether these circumstances, if established, would satisfy the requirements of 8 U.S.C. § 1229b(b)(2). We further note that, if the IJ had reached the merits of Bellot-Paul’s application and denied it, we likely would lack jurisdiction to review that discretionary decision. See 8 U.S.C. § 1252(a)(2)(B)(ii); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003).
. There is some question whether venue is proper in this case. Petitions for review of immigration cases are properly filed in ‘The court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). In this case, the IJ conducted proceedings from her office in San Juan, Puerto Rico, which lies within the First Circuit. Bellot-Paul, however, appeared by video teleconference from St. Thomas, United States Virgin Islands, which is where her proceeding was docketed and which lies within this Circuit. It is thus not immediately clear where her proceeding should be deemed "completed” for purposes of § 1252(b)(2). Cf. Georcely v. Ashcroft, 375 F.3d 45, 48 (1st Cir.2004) (noting that proceeding conducted in St. Thomas but likely docketed in Puerto Rico might be deemed "completed” in Puerto Rico because IJ's order was docketed there, but not deciding the issue); Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir.2004) (holding that physical location of the IJ controls where cases are conducted by video teleconference, though in case where the proceeding was docketed in the IJ’s physical location). We need not decide the issue, however, because the Government has conceded proper venue in this case and we see no reason to raise the issue sua sponte. See Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 5 (3d Cir.2005) (noting that venue is not jurisdictional and declining to transfer case where the parties' presentations in this Court were complete).
. Bellot-Paul asserts, without further explanation and without citation, that the IJ erred in "taking action on my cancellation application" because, proper filing not having been effected, it lacked jurisdiction to do so. Bel-lot-Paul's single-sentence assertion is insufficient to raise this issue on review. See United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir.2008). In any event, the IJ did not take substantive action on the application and plainly had the authority to deem it waived. See 8 C.F.R. § 1003.31(c); Arellano-Hernandez, 564 F.3d at 911. Bellot-Paul also asserts that the circumstances described above denied her due process but, again, has provided no authority or specific argument in that regard. Nevertheless, Bellot-Paul has not shown that the IJ or BIA prevented her from presenting her case or that she suffered prejudice as a result. See Khan, 448 F.3d at 235-36.
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OPINION OF THE COURT
AMBROSE, District Judge.
Appellant Gregory Jackson’s appointed counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The government has filed a brief in support of counsel’s motion. Jackson has not filed any pro se brief in opposition to counsel’s motion. Because we are satisfied that there exist no non-frivolous issues for direct appeal, and Jackson’s counsel has complied with all duties under applicable law, we will grant counsel’s motion and dismiss the appeal.
I.
Because we write solely for the parties, we will limit our discussion to facts relevant to framing the inquiry on appeal.
*945On May 12, 2005, the District Court sentenced Jackson to forty-eight months of imprisonment and three years of supervised release. The sentence followed Jackson’s plea of guilty to an indictment charging him with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was released to supervised release on November 14, 2007. While on supervised release, Jackson failed to appear for scheduled appointments with his probation officer, failed to attend mental health counseling, and submitted urine samples that tested positive for cocaine. Additionally, on May 13, 2008, Jackson was arrested for second degree assault, after punching his wife and causing her physical injury. He pleaded guilty to that charge in Delaware state court, and was sentenced by the state court to eight years of imprisonment, suspended after serving three years, as well as restitution. On January 9, 2009, the District Court issued an amended petition on probation and supervised release.
Subsequently, on April 4, 2009, the District Court held a revocation and sentencing hearing. During the hearing, Jackson admitted to violating his supervised release. The District Court determined that the advisory sentencing guideline range was thirty-three to forty-one months, and that there was a statutory maximum of twenty-four months. The District Court then revoked Jackson’s supervised release, and imposed a sentence of twenty-four months imprisonment, to run consecutive to the state sentence. Jackson then filed this timely appeal.
il.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Under Anders, we engage in a two-part inquiry. First, we ask whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a);1 second, we consider whether an independent review of the record presents any non-frivolous issues for appeal. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). In this context, moving counsel must demonstrate that the record has been “thoroughly scoured ... in search of appealable issues,” and must “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). In engaging in this inquiry, we review the Anders brief itself, as well as the record on appeal. If the Anders brief appears facially adequate, however, we need not conduct a “complete scouring of the record,” but instead may be “guided in reviewing the record by the Anders brief itself,” as well defendant’s pro se brief. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001).
After reviewing the present record and counsel’s submissions, we conclude that counsel has complied with the requirements of both Anders and LAR 109.2. Counsel has provided copies of the Anders brief to both Jackson and the government. It is clear, as well, that counsel has thoroughly examined the record in order to identify any appealable issues, and explained why the sole potential grounds for *946appeal would be frivolous. We are satisfied that counsel’s Anders brief is adequate on its face. Accordingly, and because Jackson did not file any pro se brief, we will confine our review of the record to those portions identified in the Anders brief.
Upon independent review of the record, we reach the same conclusion as that reached by counsel and the government. Counsel notes that Jackson may argue that his sentence is unreasonable, but that the argument is frivolous because the Court explained the reasons for its sentence and properly exercised its discretion. In reviewing a sentence, we must ensure that the district court committed no procedural error, and then consider the reasonableness of the sentence under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007).
During sentencing, the District Court discussed an uncharged gun offense, but expressly and repeatedly stated that the offense was not part of its rationale for sentencing. Instead, the Court stated that its sentence was based “most especially [on] the factors outlined in Title 18, 3553(a),” and correctly calculated the applicable advisory guideline range. Moreover, the Court adequately explained the basis for the sentence, which involved, inter alia, Jackson’s history, characteristics, and the nature of the offense. The Court’s decision was based on legally appropriate factors, reflects no procedural error, and was not an abuse of discretion.
III.
In conclusion, we are satisfied that there are no non-frivolous issues available to be presented on appeal. We will AFFIRM the judgment of the District Court, and will GRANT counsel’s motion to withdraw. Pursuant to Third Circuit Local Appellate Rule 901.2(b), we further find that “the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the United States Supreme Court.”
. Local Appellate Rule 109.2(a) provides, in pertinent part, as follows:
Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States ... If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel.
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OPINION OF THE COURT
PER CURIAM.
Pro se petitioners, wife and husband Xue Lin Zheng and Ming Wu, petition for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny their petition for review.
Petitioners are natives and citizens of China. Zheng, the lead respondent, arrived in the United States in November 2001 without a valid entry document. Wu entered without inspection in November 1999. Both petitioners were charged with removability pursuant to INA § 212(a)(6)(A)® on March 29, 2006. In response, Zheng applied for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”) and voluntary departure, with her husband as a rider on her petition. Based on the testimony and evidence in the record, the IJ concluded that Zheng had failed to demonstrate a likelihood of future persecution on the basis of having had two American-born children and, accordingly, denied relief. Petitioners appealed to the BIA and also requested that them proceedings be remanded to the IJ to consider additional information regarding family planning in China. The BIA denied the motion to remand, affirmed the opinion of the IJ, and dismissed the appeal on April 2, 2008.
Petitioners were initially represented by counsel, who failed to timely file a petition for review in this Court. Counsel then filed a motion before the BIA requesting that it re-issue its decision so that petitioners could timely file a petition for review. On December 3, 2008, the BIA denied the motion. On February 17, 2009, petitioners, then proceeding pro se, filed a second motion requesting that the BIA re-issue its decision, arguing that they should not be prejudiced by the failure of their attorney to timely file a petition for review. By order dated June 16, 2009, the BIA agreed and re-issued its order of April 2, 2008 dismissing their appeal. Petitioners time*948ly filed a petition for review from that order.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. The IJ denied relief because he found that Zheng had not met her burden of demonstrating a well-founded fear of persecution. This is a factual finding subject to review under the substantial evidence standard, pursuant to which we will uphold the findings of the BIA or IJ “unless the evidence not only supports a contrary conclusion but compels it.” See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
■ To qualify for asylum, Zheng must show that she is “unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158. To establish eligibility for withholding of removal, she must demonstrate “a clear probability of persecution.” See Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir.1993). “[P]ersecution connotes extreme behavior, including ‘threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.’ ” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quoting Fatin, 12 F.3d at 1240). The well-founded fear of persecution standard involves both a subjectively genuine fear of persecution and an objectively reasonable possibility of persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). For relief under the CAT, Zheng must demonstrate that it is more likely than not that she would be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
Petitioners were married in a traditional ceremony in November 2004 and their marriage was registered in New York City in January 2006. They had two children together while in the United States. Zheng testified that she was concerned that she would be sterilized upon her return to China, although she was unaware of whether China’s family planning policy applied to people who give birth to children outside of the country. (A.R.310-12.) She also expressed fear that she would be jailed or fined upon her return for having been smuggled out of the country. (Id.) She conceded to the IJ that she had not experienced any persecution in the past. (Id.) The only other evidence submitted in support of their claim was a letter from •Zheng’s father-in-law enclosing a copy of their village’s local family planning policy. (A.R.329.) While the document, entitled “Combine Our Efforts in Thorough Implementation of Family Planning,” does acknowledge the use of abortions and sterilization to control childbirth rates, it is largely concerned with out-of-wedlock pregnancies and does not address petitioners’ situation. (A.R.325.)
Relying on the country reports, the IJ concluded that Zheng’s belief that she might be sterilized upon her return to China was not objectively reasonable, as there was no evidence in the country reports indicating that a Chinese citizen who gave birth overseas before returning to China would be subject to China’s family planning policies. The IJ noted that petitioners did not offer any evidence to contradict or rebut the country reports. The IJ further explained that the only restraint on petitioners upon their return might be a fine and the payment of an additional tuition fee for their second child, which the IJ found would not amount to persecution. Based on the foregoing, the IJ concluded that Zheng had failed to demonstrate a likelihood of persecution on the basis of having had two American-born children. Because she had not met the asylum stan*949dard, the IJ concluded that she could not meet the higher withholding of removal or CAT standards either.
On appeal to the BIA, Zheng argued that her right to due process was violated by the IJ’s acceptance of country reports into evidence less than ten days before the merits hearing, and reliance on them in concluding that women who gave birth overseas are not subject to China’s family planning policies. The BIA noted that Zheng’s counsel failed to object to the admission of the country reports during the hearing, or to request a continuance or extension of time in which to submit rebuttal evidence, and held that petitioners had therefore waived any objection to the IJ’s admission of or reliance on this evidence. Next, Zheng argued that the IJ erred in concluding that she had not satisfied her burden of demonstrating a well-founded fear of persecution upon her return to China. However, as the BIA observed, Zheng made nothing more than generalized arguments to the contrary and did not point to any supporting evidence in the record.1
Based on a thorough review of the record, we conclude that Zheng failed to carry her burden of demonstrating an objectively reasonable possibility of sterilization should she be returned to China and, accordingly, the evidence does not compel a conclusion contrary to that reached by the IJ and the BIA. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir.2004) (requiring asylum applicant to demonstrate by “credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution”). While Zheng argues that the IJ failed to sufficiently analyze whether she would be subject to sterilization if returned to China, she presented to the IJ nothing more than her testimony that she had two U.S.-born children. The BIA has previously held that such evidence, without more, is insufficient to support an asylum claim based on China’s coercive family planning policies. See generally In re CC-, 23 I. & N. Dec. 899 (BIA 2006) (concluding that without additional evidence to the contrary, recent State Department Country Reports indicate that petitioner’s claimed fear of forcible sterilization was not reasonable); Yu v. Attorney Gen., 513 F.3d 346, 349 (3d Cir.2008) (affirming BIA determination based on same evidence presented in In re C-C-); see also Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir.2001) (agreeing with IJ that respondent failed to sustain burden of proof in light of complete lack of evidence corroborating specifics of asylum claim).
We also agree with the BIA that Zheng’s due process claim was not preserved for appeal. Zheng does not address this aspect of the BIA’s opinion in her appeal brief, arguing instead that the IJ erred in relying so heavily on the evidence presented by the Attorney General, which Zheng describes as “not much more than hearsay[] by the diplomats.” Despite Zheng’s characterization, country reports are a usual and accepted form of evidence in removal proceedings, and the IJ’s reliance on them does not constitute a violation of her right to due process. See Ambartsoumian v. Ashcroft, 388 F.3d 85, 89 (3d Cir.2004).
*950Based on the foregoing, we conclude that the IJ’s determination that Zheng failed to demonstrate a well-founded fear of persecution was supported by substantial evidence. Accordingly, we will deny the petition for review.
. Zheng also requested a remand in order for the IJ to consider rebuttal evidence in the form of a series of news articles and cases which she alleged supported her claim of persecution, and were "new" and “previously unavailable”. The BIA held that nearly all of the documents submitted in connection with the motion to remand pre-dated the hearing before the IJ and therefore could have been timely provided to the IJ while those proceedings were originally pending. As Zheng does not raise this issue in her appeal brief, we do not address it any further.
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OPINION
PER CURIAM.
Petitioner, Jorge Abraham Rodriguez-Lopez, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Rodriguez-Lopez, a native and citizen of Guatemala, entered the United States without inspection or parole in November 1990. In January 1993, he filed an application for asylum and related relief in which he claimed that his life would be in danger if forced to return to Guatemala. In an affidavit submitted in support of his application, Rodriguez-Lopez explained that, before he left the country, he had been a student in Quetzaltenango, where he had associated with an anti-government student organization. According to his affidavit, several members of the organization were either assassinated or forced to join the guerrilla army. Fearing for his own life, Rodriguez-Lopez fled to the United States.
In September 1998, Rodriguezr-Lopez appeared for a hearing before Immigration Judge (“IJ”) Frederic Leeds. After conceding that he was removable as charged, Rodriguez-Lopez voluntarily withdrew his application, apparently because he believed that the political climate in Guatemala had improved. As a result, he was given permission to depart voluntarily before January 23,1999.
Rodriguez-Lopez did not depart within that period. Rather, approximately six years later, he filed a motion to reopen his removal proceedings in order to file a new application for asylum.1 The IJ granted *952Rodriguez-Lopez’s request and reopened the proceedings.
In Rodriguez-Lopez’s second application for asylum, withholding of removal, and relief under the Convention Against Torture (the “CAT”), he again stated that he had participated in a political student group in Quetzaltenango, but this time added that, as a result of his participation, his family members had been threatened, he had been attacked and stabbed with a knife, and a close friend of his in the group had been assassinated. (AR 000503.) According to Rodriguez-Lopez, “some armed group or groups” were still searching for him because of his association with that friend. (AR 000503.)
The parties appeared for a hearing on Rodriguez-Lopez’s second application on December 27, 2006. On direct examination, Rodriguez-Lopez’s attorney first asked him about the student group he had joined in Quetzaltenango.2 He stated that the organization performed protests and visited businesses to collect donations for their cause. If a business refused to contribute, Rodriguez-Lopez and other members of the organization would deface the business’s property. According to Rodriguez-Lopez, several members of the organization disappeared and were later found dead.
Next, Rodriguez-Lopez told the court that, sometime in 1988, his brother began to receive phone calls warning him that Rodriguez-Lopez was in danger. Then, in September 1989, three men attacked him and stabbed him in the back, nearly killing him. Rodriguez-Lopez stated that his brother continued to receive threatening phone calls for several years after the attack even though he had left the country.
On cross-examination, the government inquired into several inconsistencies in the record. First, the government asked Rodriguez-Lopez why neither one of his applications mentioned that he had collected money for the student organization or that he had defaced property when people refused to contribute.3 The government also asked him why his second application failed to note that his assault was triggered by these activities. In response, Rodriguez-Lopez explained that “the lawyer never asked [him] about it, the questions that were asked was whether or not [he] had problems in [his] country because of political reasons.” (AR 000183.)
Next, the government asked Rodriguez-Lopez why neither one of his applications mentioned that his brother had received threatening phone calls during the time that he was still in Guatemala. Rodriguez-Lopez responded that, “at the moment that [he] was filling out the statement, the declaration, not everything came up in [his] mind.” (AR 000185.) The government also asked him why he testified on direct examination that his wife and children had never been threatened, while in his second application, he had stated that his “relatives in Guatemala are still receiving threats to kill [him] and [his] children and [his] wife.” (AR 000186.) Rodriguez-Lopez explained that the law*953yer who assisted him with his second application must have misunderstood him.
After Rodriguez-Lopez testified, he presented Professor Frank Lewis Rusciano as an expert on his behalf. Professor Rusci-ano first told the court about his meeting with Rodriguez-Lopez. According to the professor, Rodriguez-Lopez had conveyed to him that he had been involved in union strikes supported by students at the University of San Carlos; that he had placed posters on businesses that did not support the union; and that he was eventually attacked as a result of these activities. Professor Rusciano also testified about current conditions in Guatemala, opining that the political climate had not improved significantly since Rodriguez-Lopez’s departure.
After the hearing, the IJ found that Rodriguez-Lopez was not credible because he had provided conflicting statements and material omissions regarding his political activity in Guatemala. Therefore, the IJ found that Rodriguez-Lopez had failed to demonstrate eligibility for asylum on the basis of past persecution under INA § 101(a)(42)(A). See 8 U.S.C. § 1101(a)(42). The IJ further found that he had not established a well-founded fear of future persecution. See id. In addition, the IJ held that, because Rodriguez-Lopez had failed to satisfy the asylum standard, he could not satisfy the more difficult standard for withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). Finally, the IJ concluded that Rodriguez-Lopez had failed to present any evidence demonstrating that it was more likely than not that he would be tortured if forced to return to Guatemala. See 8 C.F.R. § 1208.16(e)(2). Therefore, the IJ denied his application for relief under the CAT as well.
Meanwhile, Rodriguez-Lopez had filed an application for cancellation of removal. Because it had not been properly submitted to the court, the IJ scheduled a separate hearing on the application. The IJ ultimately determined, however, that Rodriguez-Lopez was ineligible for this type of relief because he had not been present in the United States for the requisite ten years before he was served with a notice to appear.4 See 8 U.S.C. § 1229b(b)(l), (d)(1). Accordingly, the IJ entered a final order of removal.
Upon review, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. Rodriguez-Lopez now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Benshaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
On appeal, Rodriguez-Lopez first argues that the IJ who adjudicated his second asylum application, IJ Frederic *954Leeds, erred by “totally disregarding] the implicit findings of his predecessor.” (Br.13.) Although his argument is somewhat difficult to follow, Rodriguez-Lopez appears to suggest that IJ Leeds, in ruling on the merits of his asylum application, was bound by IJ Strasser’s earlier determination that Rodriguez-Lopez had established prima facie eligibility for asylum sufficient to warrant reopening. According to Rodriguez-Lopez, “Judge Leeds should have approved the application for asylum in this case if the facts adduced by the petitioner were consistent with those considered by Judge Strasser when he reopened this matter ... [because t]he prima facie case and the willingness to exercise judicial discretion were already established.” (Br.15.)
Rodriguez-Lopez misunderstands the nature of Judge Strasser’s decision to reopen his case. Simply stated, the decision to grant a motion to reopen is not a decision on the asylum application itself; to the contrary, the question presented in a motion to reopen is simply whether the evidence “reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” Sevoian v. Ashcroft, 290 F.3d 166, 173 (3d Cir.2002) (quoting In re S-V-, 22 I. & N. Dec. 1306 (BIA May 9, 2000)) (emphasis added). Indeed, the very purpose of a motion to reopen is to obtain a hearing on the merits of the application for asylum. In this case, Rodriguez-Lopez succeeded in establishing prima facie eligibility for asylum, but, after a hearing on his claims, was found to be not credible, and was denied relief. We see no error in this chain of events, and reject the notion that IJ Leeds was somehow bound by findings that IJ Strasser made in connection with the motion to reopen.
Rodriguez-Lopez next argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree, as the record reveals several inconsistencies in Rodriguez-Lopez’s story that he could not convincingly explain. Most significantly, although Rodriguez-Lopez testified at the hearing that he was attacked in Quetzaltenango because of his participation in the anti-government student organization, he did not mention this incident at all in his first application for asylum. Given that, as the IJ noted, this attack “really became the heart of’ his newly formulated asylum claim, we cannot disagree with the IJ that this inconsistency greatly undermined Rodriguez-Lopez’s credibility. See 8 U.S.C. § 1252(b)(4)(B). Therefore, we will defer to the agency’s findings. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Rodriguez-Lopez also alleges that the IJ committed several procedural errors during the December 27, 2006 hearing. First, he claims that Judge Strasser’s ruling on the motion to reopen is not part of the record. Contrary to his contention, however, that the administrative record includes the motion to reopen (AR 000521), the government’s opposition thereto (AR 000820), Rodriguez-Lopez’s response (AR 000764), and IJ Strasser’s order granting the motion (AR 000701). In any event, given that, as discussed above, IJ Leeds was not bound by IJ Strasser’s interpretation of the evidence presented in the motion to reopen, we fail to see how Rodriguez-Lopez could have been prejudiced by IJ Leeds’s alleged failure to review the reopening record.
Rodriguez-Lopez’s next argument appears to be that IJ Leeds improperly conducted the hearing under the “novel constitutional principle” that the government has a right to due process. (Br.23) This argument is based on the fact that “on at least two occasions Judge Leeds stated that the government had a right to due process!” (Br.23) (citing AR 000126, *955000176). Our review of the transcript, however, reveals that, in making the complained-of remarks, IJ Leeds was simply explaining that Rodriguez-Lopez’s failure to comply with the court’s rules could prejudice the government. (AR 000126, 000176.) Therefore, Rodriguez-Lopez was in no way prejudiced by these remarks, and his suggestion that IJ Leeds attributed rights to the government that it did not have is specious.
Rodriguez-Lopez also challenges the IJ’s decision to forego closing arguments at the end of the December 27, 2006 hearing. Here too, however, we fail to see how Rodriguez-Lopez could have been prejudiced by this decision. As his attorney conceded at the time, he had presented all of the evidence he wanted, had asked all of the questions he wanted, and had been able to present his expert witness. (AR 000262-63.) In any event, the IJ ultimately allowed counsel to make a summation in support of his applications, albeit at the second hearing. (AR 00076.) Therefore, this argument likewise fails.
Finally, Rodriguez-Lopez challenges the BIA’s order insofar as it affirms the IJ’s decision denying his application for cancellation of removal. Upon review, we agree with the BIA and IJ that Rodriguez-Lopez was not eligible for cancellation of removal because he had not been continuously present in the country for the requisite ten years. See 8 U.S.C. § 1229b(b)(l)(A). As the IJ explained, under the “stop-time” provision, 8 U.S.C. § 1229b(d)(l)(A), Rodriguez-Lopez’s period of continuous physical presence ended in 1997, when he was served with a notice to appear. (AR 000865.) Although he argues on appeal, as he did before the IJ, that he never conceded service of the notice to appear, we have held that a strong presumption of effective service of a notice of hearing arises when, as in this case, the notice is sent by certified mail. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 278 (3d Cir.2007). Because Rodriguez-Lopez failed to present evidence of non-delivery sufficient to overcome that presumption, we see no error in the agency’s determination that he did not meet the continuous presence requirement in 8 U.S.C. § 1229b(b)(l)(A).5
We have considered Rodriguez-Lopez’s remaining arguments and conclude that they are without merit. Therefore, we will deny the petition for review.
. Rodriguez-Lopez initially moved to reopen the proceedings so that he could apply for labor certification and adjustment of status. When the government opposed the motion on *952the ground that it was untimely, however, Rodriguez-Lopez stated that he also intended to seek asylum based on changed conditions in Guatemala. See 8 C.F.R. § 1003.2(c)(2), (3)(ii).
. On cross-examination, Rodriguez-Lopez clarified that he was not an official member of the organization because he was not enrolled at the university in which it was based. (AR 000173-178.)
. In an affidavit in support of his second application, Rodriguez-Lopez claimed that his "personal troubles began” after he had been seen posting signs on a wall during a "strike.” (AR 000509.)
. At the hearing on the application for cancellation of removal, the IJ also permitted counsel for Rodriguez-Lopez to make a closing argument, and submit an additional declaration, in support of his asylum case.
. Rodriguez-Lopez also argues that "the weight of authority supports granting asylum in this case," and cites to a number of cases in which Guatemalan citizens have been granted asylum. (Br.26.) Suffice it to say that, unlike Rodriguez-Lopez, none of these petitioners were found to be not credible.
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OPINION
PER CURIAM.
Appellant Neville Sylvester Leslie, an immigration detainee at York County Prison in Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania challenging his detention by the United States Department of Homeland Security (DHS). Leslie also raised several issues related to the conditions of his confinement. The District Court dismissed the petition. For the following reasons, we will summarily affirm.
Leslie, a native and citizen of Jamaica, has had lawful permanent resident status since 1989. In 1998, following a guilty plea, Leslie was convicted in the United States District Court for the Eastern District of Virginia of conspiracy to possess and distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 846. The Court sentenced Leslie to a term of imprisonment of 168 months. The sentence was later reduced pursuant to a Sentencing Guidelines amendment. See generally United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009).
Upon completion of his sentence, DHS took Leslie into custody and charged him as being removable for having been convicted of an aggravated felony and a controlled substance offense. 8 U.S.C. §§ 1227(a)(2) (A) (iii) & (a)(2)(B)(i). On April 16, 2008, after a brief hearing at York County Prison, an Immigration Judge (IJ) ordered that Leslie be removed *957from the United States. The Board of Immigration Appeals (BIA) dismissed Leslie’s appeal. Leslie then filed a petition for review in this Court. Leslie v. Att’y Gen., C.A. No. 08-3180. On August 14, 2008, a motions panel of this Court granted his request for a stay of removal and appointed him counsel. The petition for review is currently pending before this Court.
On April 22, 2009, nine months after the BIA issued the final order of removal, Leslie filed an emergency writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, Leslie argued that his continued detention violated the Constitution. Leslie also asserted Eighth Amendment claims related to the conditions of his confinement at York County Prison. The District Court dismissed the petition. Leslie sent the District Court a letter requesting an extension of time to file a motion for reconsideration and for appointment of counsel. The District Court denied the request for counsel, and Leslie filed separate timely notices of appeal challenging the dismissal of his petition and the District Court’s refusal to appoint counsel. Previously, the Clerk consolidated the two resulting appeals. Leslie has also filed two motions in this Court requesting appointment of counsel.
We have jurisdiction over these appeals pursuant to 28 U.S.C. §§ 1291 and 2253(a).1 In reviewing the denial of Leslie’s habeas corpus petition, we exercise plenary review over the District Court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). We review the District Court’s denial of counsel for an abuse of discretion. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir.1993).
The District Court analyzed Leslie’s detention under 8 U.S.C. § 1226(c) which instructs the Attorney General to take into custody and detain during ongoing removal proceedings any alien who, like Leslie, is removable by reason of having committed an aggravated felony. In Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court held that mandatory detention of lawful permanent residents during removal proceedings pursuant to § 1226(c) does not violate the protections guaranteed under the Constitution, even when there has been no finding that an alien is unlikely to appear for his or her removal proceedings. See id. at 527-28, 123 S.Ct. 1708. The District Court relied on Demore in refusing to grant habeas relief. Leslie, however, filed the petition after the BIA entered his final order of removal. See 8 C.F.R. § 1241.1(a) (“An order of removal made by the immigration judge at the conclusion of proceedings ... shall become final ... [u]pon dismissal of an appeal by the Board of Immigration Appeals”). At that point, DHS was not detaining Leslie pursuant to § 1226(c) but rather under 8 U.S.C. § 1231(a), which authorizes post-final order detentions and requires the Attorney General to detain him.2 As discussed below, any error by the District Court in this regard is harmless, inasmuch as Leslie’s constitutional challenge to his detention is premature.
*958Under § 1231(a), the Attorney General has 90 days to remove Leslie from the United States after his final order of removal. 8 U.S.C. § 1231(a)(1)(A). The Supreme Court interpreted § 1231(a)(6) to authorize post-removal order detention of an alien convicted of an aggravated felony to a period reasonably necessary to bring about the alien’s removal, generally no more than six months.3 Zadvydas v. Davis, 533 U.S. 678, 700-01, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). After six months, “once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence to rebut that showing.” Id. at 701, 121 S.Ct. 2491. “This 6-month presumption, of course, does not mean that every alien not removed must be released after six months.” Id.
The removal period under section 1231 begins on the latest of (1) the date the order of removal becomes administratively final; (2) if the removal order is judicially reviewed and if a court orders a stay of the alien’s removal, the date of the court’s final order; and (3) if the alien is confined (except under an immigration process), the date the alien is released from confinement. 8 U.S.C. § 1231(a)(1)(B). Leslie filed a petition for review and a motions panel of this Court granted him a stay of removal on August 14, 2008. Leslie v. Att’y Gen., C.A. No. 08-3180. Leslie’s case is currently pending before this Court. Inasmuch as the “period reasonably necessary to secure removal” has not yet begun under § 1231(a)(1)(B), Leslie’s argument that his continued detention violates the Constitution is premature. Zadvydas, 533 U.S. at 689, 121 S.Ct. 2491. Therefore, the District Court, did not err in dismissing the petition for habeas corpus.
To the extent that Leslie attempts to challenge the conditions of his confinement, we agree with the District 'Court that this habeas corpus petition was not the proper vehicle to raise his claims. See Doe v. Pa. Bd. of Prob. and Parole, 513 F.3d 95, 99 n. 3 (3d Cir.2008). Further, the District Court did not err in denying Leslie’s request for appointment of counsel. See Tabron, 6 F.3d at 155 (before appointing counsel district court must consider the merits of the plaintiffs claim). Likewise, Leslie’s motions for appointment of counsel in this Court are also denied.
Accordingly, because this appeal presents us with no substantial question, we will summarily affirm the District Court’s order. See 3rd Cir. L.A.R. 27.4 and I.O.P. 10.6.
. The District Court had habeas jurisdiction over Leslie’s claim that his detention was prolonged unlawfully. See, e.g., Nnadika v. Att’y Gen., 484 F.3d 626, 632 (3d Cir.2007).
. The statute provides: "During the removal period, the Attorney General shall detain the alien. Under no circumstances during the removal period shall the Attorney General release an alien who has been found ... de-portable under section 1227(a)(2)....” 8 U.S.C. § 1231(a)(2).
. Section 1231(a)(6) provides: "An alien ordered removed who is ... removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title ... may be detained beyond the removal period...." 8 U.S.C. § 1231(a)(6).
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OPINION
PER CURIAM.
Xiu Feng Zou petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will dismiss her petition for review.
Zou, a native and citizen of China, entered the United States in May 2005 without a valid entry document. She was placed into removal proceedings and, in response, sought asylum, withholding of removal and relief under the Convention Against Torture. Following a hearing, the IJ denied relief, determining that Zou’s testimony was not credible and that she failed to provide sufficient supporting documentation. The BIA agreed and dismissed the appeal. Zou filed a petition for review and a motion for a stay of removal. The Attorney General opposed the motion to stay and requested that the petition for review be dismissed.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. In her petition for review, Zou, through counsel, raises only one claim: that the IJ failed to forward her asylum application to the State Department in contravention of 8 C.F.R. § 208.11, thereby preventing her from corroborating her claim based on the State Department’s observations. She maintains that we therefore have no option but to grant the petition for review and remand for further proceedings. However, as Zou concedes, this claim was not presented to the IJ or the BIA, and, therefore, is unexhausted. Due to Zou’s failure to exhaust this claim, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); see also Kibinda v. Attorney Gen., 477 F.3d 113, 120 n. 8 (3d Cir.2007) (requiring that petitioner raise and exhaust remedies as to eaeh claim or ground for relief before the BIA or IJ in order to preserve claim for petition for review); Joseph v. Attorney Gen., 465 F.3d 123, 126 (3d Cir.2006) (“An alien must exhaust all administrative remedies available to him as of right before the BIA as a prerequisite to raising a claim before this Court.”).1
Based on the foregoing, we will dismiss the petition for review for lack of jurisdiction. Zou’s motion for a stay of removal is denied.
. Zou argues that, despite her failure to present this claim to the BIA, this Court should consider it to avoid “a manifest injustice." The cases she cites do not support this position and, even if they did, the record reflects that the IJ did in fact submit her asylum application to the State Department. (A.R. 293.) Thus, even if we were to determine that some equitable exception applied, her claim would be without merit. Additionally, we note that Zou’s attorney has raised this argument several times in the past without success. See, e.g., Kai-Rui Pan v. Mukasey, 314 Fed.Appx. 328, 329 (2d Cir.2008); Ilic v. Attorney Gen., 276 Fed.Appx. 182, 185 (3d Cir. 2008); Ljubanovic v. Attorney Gen., 270 Fed.Appx. 129, 131-32 (3d Cir.2008); Ghilduta v. Mukasey, 263 Fed.Appx. 111, 112 (2d Cir. 2008); Tchernycheva v. Attorney Gen., 230 Fed.Appx. 231, 236 (3d Cir.2007).
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OPINION
PER CURIAM.
Hong — Hua Li has filed a petition for review of the final order by the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge (“IJ”) of Li’s requests for asylum and withholding of removal. For the reasons that follow, we will deny the petition for review.
The parties are familiar with the background of this case, and so we provide only a summary of' the proceedings. Li is a native and citizen of the People’s Republic of China who arrived in the United States in 2004. She was placed in removal proceedings for being an alien present in the United States without being admitted or paroled after inspection by an immigration officer. See 8 U.S.C. § 1182(a)(6)(A)(i). She conceded removability. In February 2005, she applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) on account of the fact that she is a Falun Gong practitioner, as well as the fact that she is of Korean ethnicity. The IJ held an eviden-tiary hearing on Li’s claims on August 2, 2005.
Li was the sole witness at the hearing and testified about her involvement with Falun Gong. She stated that she was twice arrested for her Falun Gong activities while she was attending finance and accounting school. Regarding the first arrest, she stated that she was detained for about one month, during which she was interrogated, handcuffed, deprived of sleep, and given only one meal per day. She was dismissed by her school, so she traveled to Beijing by train to have the dismissal reversed and to advance the Fa-lun Gong cause before the central government. Li stated that she was then arrested, for the second time, in August 2000. She was sent to her home city and detained for nine months. Li stated that she was punched in the face and injured with an electric baton, and that she has a twisted nose bone and broken teeth. Since her departure from China, she has had no contact with her husband, who is also a Falun Gong practitioner and who was arrested after her departure. Li did remain in contact with her parents until several months before the hearing. She stated that she feared life imprisonment if she were to return to China. In addition, Li presented the issue of a breach by the agency of the confidentiality provisions of 8 C.F.R. § 208.6. Li claimed that the violation occurred when an agency investigator contacted a Chinese notary to verify the authenticity of Li’s birth and marriage certificates, which Li had submitted in support of her asylum application. The record evidence also included the agency overseas investigation report and the State Department Profile of Asylum Claims and Country Conditions for China.
On August 2, 2005, the IJ found that Li lacked credibility, denied all forms of relief, and ordered Li removed to China. The IJ also rejected Li’s argument that relief was warranted concerning the claimed breach of confidentiality. On April 6, 2007, the BIA dismissed the appeal, finding that the IJ’s adverse credibility determination was not clearly erroneous. The BIA relied on the discrepancies noted by the IJ concerning Li’s testimony and written application about the dates of her arrests. Li had stated in her application that her second arrest had occurred in August 1999, but she testified that the date of the second arrest was in August 2000, after her discharge from school. The BIA noted that, when the IJ questioned her about the date, she responded that she did not understand, but she later changed her response when asked the same question by her attorney, stating *962that the date was August 1999. Further, the BIA accorded deference to the IJ’s findings concerning Li’s demeanor while testifying. Specifically, the BIA cited the IJ’s comments that Li’s testimony was obtained in “an excruciatingly painful way” and that her responses were vague, delivered with no confidence after long delays, and with professions of being unable to understand even simple questions. The BIA also noted that Li had not established any confidentiality breach by the government.1 This petition for review followed.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). Our review is limited to determining whether the agency’s decision was supported by substantial evidence. That is, “[w]e will defer to and uphold the IJ’s adverse credibility determinations if they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole,’ but such findings must be based on inconsistencies and improbabilities that ‘go to the heart of the asylum claim.’ ” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal citation omitted). We must affirm “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (citations omitted).2
Upon review of the record, we conclude that substantial evidence supports the adverse credibility determination. Li protests that the IJ made the adverse credibility finding based on minor inconsistencies in her testimony on matters not concerning the heart of her asylum claim, such as the date of her departure from China. However, it is evident from the BIA’s decision that it did not rely on that portion of Li’s testimony and instead affirmed the adverse credibility finding on other grounds, as explained above. The record does not compel a contrary finding.3
We now turn to Li’s claims relating to the alleged confidentiality breach by the government. Li claims that, in verifying the authenticity of Li’s notarial certificate of her birth and her marriage certificate, the government violated 8 C.F.R. § 208.6, which bars the government from disclosing information indicating “that a specific alien has applied for asylum [in the United States]” to a foreign government. Upon review of the record, we see no reason to disturb the agency’s finding that Li has not shown that a breach of section 208.6 occurred. The record reflects that the government’s Beijing-based investigator *963telephoned the Helong City Notary Public Office, requesting confirmation of the validity of two registration numbers appearing on Li’s documents. The Chinese notary responded that his office’s records showed that the certificate numbers were for Li’s marriage and her notarial certificate of birth. The investigator noted that the response matched the information conveyed in the documents. Li’s arguments presume that this verification procedure resulted in a breach of section 208.6. However, we cannot conclude that the evidence supports a showing that the government revealed the type o'f information leading to an inference that Li had applied for asylum in the United States.4
In sum, we discern no reason to disturb the agency’s denial of asylum and withholding of removal. We will deny the petition for review.
.The BIA further noted that Li did not challenge the IJ’s rejection of her claim of persecution based on her Korean ethnicity, and that Li also did not challenge the IJ's denial of her CAT claim. Li does not pursue the CAT issue in her brief. Although Li speculates in her brief that there might have been reasons for her silence on the ethnicity issue during the hearing, including the reason that the Falun Gong issue was the more compelling issue, it appears from the record that she did not argue the claim before the BIA. We will not address these unexhausted claims. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). See also 8 U.S.C. § 1252(d)(1) (court may review final order of removal only if "the alien has exhausted all administrative remedies available to the alien as of right”).
. Li applied for asylum before May 11, 2005, and therefore the REAL ID Act’s new standard for credibility determinations does not apply to her. Chukwu v. Attorney General of the United States, 484 F.3d 185, 189 (3d Cir. 2007).
. The BIA also concluded that the IJ was not unreasonable in noting the lack of corroborative evidence in Li's case. Because substantial evidence supports the adverse credibility finding, we need not reach Li's argument that the IJ made unreasonable demands for corroborating evidence in support of her claims.
. Moreover, when asked when the Chinese government discovered her whereabouts, Li testified that it was "when I obtained my birth notorial.” Joint Appendix Vol. II at 70. By her own testimony, it seems that she attributed the Chinese government's awareness of her presence in the United States to her own actions.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
American Leistritz Extruder Corp. brought suit in the United States District Court for the District of New Jersey against Polymer Concentrates, Inc. for failing to make payments due on a contract for the sale of an extruder system. In a bench trial, the court awarded Leistritz $156,945.49 in damages — the unpaid balances on the contract and invoices for additional equipment and on-site assistance, less a setoff to reflect defects in the ex-truder — and $60,000 in attorneys’ fees, under a cost-shifting clause in the contract. We will affirm.
I.
In March 2004, Polymer purchased a ZSE-75HP extruder system from Leis-*965tritz. On March 8, Leistritz sent Polymer a price quotation for the extruder and related equipment. The price quotation included an additional document, Leis-tritz’s Standard Terms and Conditions, which provided, inter alia, the terms of the warranty, a clause precluding Polymer from recovering consequential damages, and a clause shifting costs — including attorneys’ fees — incurred by Leistritz in collecting overdue payments.1 On March 26, Polymer placed a Purchase Order, and Leistritz responded on the same date, confirming the order and extending the one-year standard warranty to three years. On March 80, a final price of $529,720 was set. Polymer made the initial payments due on the contract, including a $50,988 deposit and a $264,860 payment on delivery. The balance of $255,731.75, which included $41,859.75 worth of related equipment, was to be paid in two installments due 90 and 180 days from delivery.
Polymer immediately began to experience problems with the extruder, requiring a three-day on-site visit upon installation.2 The problems continued, resulting in four additional on-site visits by Leistritz employees and sub-vendors and several conversations between Leistritz and Polymer concerning the defects. After this period of cooperation, Leistritz learned on May 5, 2005 that Polymer had not made the installment payments due after delivery. When contacted, Polymer informed Leis-tritz that it would not pay until the extruder was satisfactorily repaired. On May 20, Leistritz sent a letter seeking to resolve the dispute, but also informing Polymer that Leistritz had placed it on a credit freeze for all parts and services from Leis-tritz and its sub-vendors. Polymer’s counsel responded on June 10 informing Leis-tritz its refusal to pay was an invocation of its right to setoff damages. Eventually, Polymer was able to repair the extruder, at a cost of $101,851.46.
Additional attempts to resolve the dispute proved unfruitful, and Leistritz filed suit on July 28, 2005, seeking to recover the unpaid amounts due for the extruder, the supplemental equipment, and the on-site installation visit. Polymer asserted counterclaims for, inter alia, breach of warranty, tortious interference with a prospective economic relationship, and breach of the duty of good faith and fair dealing. After a jury trial resulted in a mistrial, the District Court, in a bench trial, held Polymer had neither rejected the extruder nor revoked its acceptance, and therefore breached the contract by failing to pay. The court, however, found the extruder “partially defective,” and reduced Leis-tritz’s damages by the repair costs incurred by Polymer.3 It declined to include consequential damages, finding them barred by the Standard Terms and Conditions. The court then denied Polymer’s counterclaim for tortious interference, finding no loss of an expected advantage and no damages caused by the credit freeze. It also denied Polymer’s counterclaim for breach of the duty of good faith and fair dealing,4 finding no bad faith on *966the part of Leistritz. Finally, it awarded Leistritz attorneys’ fees under the Standard Terms and Conditions, but reduced the amount of fees to reflect Leistritz’s partial recovery and the unconscionability of awarding full fees given the defective nature of the extruder.
II.
Polymer challenges four aspects of the District Court’s judgment: the exclusion of consequential damages from the calculation of its setoff damages; the denial of its counterclaim for tortious interference; the denial of its counterclaim for breach of the duty of good faith and fair dealing; and the award of attorneys’ fees.5 Leistritz does not challenge the court’s judgment.
A.
The Standard Terms and Conditions provide: “[i]n no event shall [Leistritz] be liable for any loss of use, revenue, profit or custom, or for any direct, indirect, incidental or consequential damages arising out of [the sales contract].” Polymer asserts that enforcing this clause would be unconscionable under New Jersey law.6
In New Jersey, contractual limitations on consequential damages are permitted unless unconscionable. N.J. Stat. Ann. § 12A:2-719(3). The unconscionability analysis focuses on the relative bargaining power of the parties, the conspicuousness of the exclusion, the oppressiveness of its application, and unreasonableness or bad faith on the part of the party enforcing the exclusion. Carter v. Exxon Co., 177 F.3d 197, 207, 209 (3d Cir.1999). An exclusion is unconscionable only if “the circumstances of the transaction, including the seller’s breach, cause [the] exclusion to be inconsistent with the intent and reasonable commercial expectations of the parties .... ” Kearney & Trecker Corp. v. Master Engraving Co., 107 N.J. 584, 527 A.2d 429, 438 (1987).
Polymer contends our decision in Carter controls. In Carter, we held unconscionable an exclusion in a franchise agreement for an Exxon service station. 177 F.3d at 209. In particular, the defendant’s failure to make any effort to commence repairs or replace defective equipment under a repair warranty within a reasonable time rendered enforcement of the exclusion oppressive and unreasonable. Id. Moreover, the parties possessed substantially disparate bargaining power, and the exclusion was concealed in a paragraph governing the defendant’s duty to repair. Id. at 207-08.
In this case, however, Leistritz and its sub-vendors made five on-site repair visits and had several conversations with Polymer concerning the repairs. Leistritz only ceased its assistance after it discovered Polymer was in breach of contract. While it did not successfully repair the extruder, we conclude its efforts to do so were not unreasonable or in bad faith. See Chatlos Sys., Inc. v. Nat’l Cash Register Corp., 635 F.2d 1081, 1087 (3d Cir.1980) (holding a failure to successfully repair defects was not unreasonable or in bad faith where the seller made several efforts to correct the problems); Kearney, 527 A.2d at 439 (enforcing an exclusion where the seller made at least thirteen attempts to service a de*967fective machine). Moreover, the exclusion bears none of the hallmarks of procedural unconscionability present in Carter. The parties here are both sophisticated business entities, and there is no significant disparity in their relative bargaining power. The exclusion was conspicuous in a short contract. Furthermore, the losses arising from the disruption of Polymer’s business were entirely commercial and a foreseen consequence of a breach. Accordingly, Carter is distinguishable. At the time of contracting, the parties were able to allocate the risk involved with the sale of the extruder, and we see no reason to depart from that agreement.7
B.
Polymer also challenges the District Court’s rejection of its counterclaim for tortious interference with a prospective economic relationship. Polymer contends the credit freeze interfered with its reasonable expectation of receiving assistance from Leistritz’s sub-vendors.8
New Jersey recognizes an action for tor-tious interference if a party establishes (1) a reasonable expectation of economic advantage from a prospective contractual or economic relationship; (2) the defendant intentionally and maliciously interfered with the relationship; (3) the interference caused the loss of the expected advantage; and (4) actual damages resulted. Varrallo v. Hammond Inc., 94 F.3d 842, 848 (3d Cir.1996).
The District Court did not err in finding the latter two elements lacking. Polymer points to evidence on the record that the credit freeze was honored by the sub-vendors, that it prevented Polymer from obtaining assistance, and that this delay caused Polymer loss. However, there is also evidence on the record that Polymer could have obtained the sub-vendors’ assistance despite the credit freeze, and Polymer’s founder testified it had no effect on Polymer’s business. We do not overturn a district court’s findings simply because we may have weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. Accordingly, we find no error with the District Court’s conclusions.
C.
Polymer asserts the District Court erred in rejecting its counterclaim for breach of the duty of good faith and fair dealing. According to Polymer, Leistritz’s extension of the credit freeze to its sub-vendors amounted to inequitable collusion with third parties to deprive Polymer of the benefit of the contract.
In New Jersey, every contract incorporates the implied covenant of good faith and fair dealing. Black Horse Lane Assocs., L.P. v. Dow Chem. Corp., 228 F.3d 275, 288 (3d Cir.2000). Good faith is defined as “honesty in fact and the observance of reasonable commercial standards of fair dealing ...,” N.J. Stat. Ann. *968§ 12A:2-103(l)(b), and a party breaches the covenant if it engages in inequitable conduct with ill motives and without a legitimate purpose. Wilson v. Amerada Hess Corp., 168 N.J. 236, 773 A.2d 1121, 1130 (N.J.2001).
The District Court found Leistritz lacked the requisite bad motive in implementing the credit freeze. In particular, while it did not fulfill its warranty obligations, its actions were motivated in part by Polymer’s “intransigence.” The record supports that finding. Leistritz instituted the credit freeze only after learning Polymer would not pay until the extruder was repaired. It did not conceal the credit freeze, but rather directly disclosed its decision to Polymer. It offered to further service the extruder free of charge if Polymer made payments toward the balance, but was rebuffed by Polymer. Moreover, the District Court found Polymer suffered no damage as a result of the credit freeze. Given this record, the District Court did not err in rejecting Polymer’s counterclaim.
D.
Finally, Polymer contests the award of $60,000 in attorneys’ fees.9 The Standard Terms and Conditions expressly provide that “[a]ny expenses incurred by [Leistritz] for the collection of overdue payments, including attorney’s fees, shall be payable by [Polymer].” Polymer first claims Leistritz could not be awarded fees because it was not a prevailing party in the litigation.
New Jersey law allows parties to contractually allocate attorneys’ fees. N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 730 A.2d 843, 848 (1999). However, due to a strong policy against the shifting of attorneys’ fees, these contracts are examined for reasonableness. Id. The threshold question is whether the party seeking fees is the “prevailing party” in the litigation. Id. A party has prevailed if it can show (1) a factual nexus between the lawsuit and the relief obtained — requiring the party’s “efforts [to be] a ‘necessary and important’ factor in obtaining the relief’ — and (2) a basis in the law for the relief granted. Singer v. New Jersey, 95 N.J. 487, 472 A.2d 138, 141-42 (1984) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 280 (1st Cir.1978)). The party need not recover all claimed relief in order to prevail — there need only be “the settling of some dispute that affected the behavior of the [party asked to pay attorneys’ fees] towards the [party seeking attorneys’ fees].” N. Bergen, 730 A.2d at 849 (alterations in original) (quoting Davidson v. Roselle Park Soccer Fed’n, 304 N.J.Super. 352, 700 A.2d 900, 903 (N.J.Super.Ct. Ch. Div.1996)).
Leistritz satisfies both prongs. It brought suit for overdue payments and was awarded $156,945.49 in relief. Moreover, the relief arose under the terms of the sales contract, establishing a basis in the law. See N. Bergen, 730 A.2d at 849 (holding contractual rights were a sufficient legal basis for attorneys’ fees). Polymer argues it, and not Leistritz, was the prevailing party because its failure to pay was merely an exercise of its setoff rights. Because the extruder was still underper-forming at the time Polymer invoked its setoff rights, it continued to incur damages and could, not know how much it was required to pay. Therefore, according to Polymer, its failure to pay was not a breach of contract. This argument overlooks the fact that the District Court concluded Polymer neither rejected the ex-*969truder nor validly revoked its acceptance. A buyer is permitted to withhold only “all or any part of the damages resulting” from a seller’s breach. N.J. Stat. Ann. § 12A:2-717. The District Court found Polymer suffered $101,851.46 in damages, and Polymer was only entitled to deduct that amount from the purchase price. Any additional amount withheld, regardless of the intent in doing so, legally constituted a breach of contract.
Once it is established that the party seeking fees prevailed in the litigation, the court must determine the amount of fees to award. Generally, a district court begins by determining a lodestar as a starting point, calculated as the product of an appropriate hourly rate and a reasonable number of hours expended. McCutcheon v. America’s Servicing Co., 560 F.3d 143, 150 (3d Cir.2009). It may then increase or decrease the lodestar amount through the use of a multiplier. In re Diet Drugs, 582 F.3d 524, 540 (3d Cir.2009). Whether or not the court requires discovery in connection with attorneys’ fees is committed to its sound discretion. In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 342 (3d Cir.1998). Accordingly, it may elect to rely on summaries submitted by a party rather than detailed time records. Diet Drugs, 582 F.3d at 539. Once a prevailing party produces sufficient evidence of the amount of fees, the opposing party bears the burden of producing record evidence challenging that amount. McCutcheon, 560 F.3d at 150. If the opposing party does not challenge the amount, the court need not make an independent lodestar determination. Id.
Polymer argues the District Court failed to adequately determine the amount of fees, instead improperly relying on an inadmissible summary provided by Leistritz without discovery. We find the District Court acted within its discretion in relying solely on Leistritz’s summary. See Prudential Ins. Co., 148 F.3d at 338 (“[Discovery in connection with fee motions should rarely be permitted ....”) (quoting Manual for Complex Litigation, Third § 24.224). It could rely on the amount of fees specified in the summary because Polymer failed to contest these figures. Polymer objected at trial on the grounds that Leistritz waived its claim by not raising it in the initial jury trial or presenting Polymer with discovery in connection with the claim.10 However, it never presented evidence contesting the amount of fees. The court adopted the claimed amount of $280,552.20 as its starting point, and from there, downgraded the fees to reflect Leis-tritz’s breach of its warranty obligations and partial recovery, a decision Leistritz does not appeal. Accordingly, we find the District Court did not abuse its discretion.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.
. Although Polymer denied receiving the Standard Terms and Conditions, the District Court found they were enclosed with the price quotation and became part of the contract.
. Leistritz charged Polymer $3065.20 for the visit, which Polymer refused to pay.
. The court calculated damages using the repair costs as a measure of the difference in the extruder's value as delivered and as warranted. N.J. Stat. Ann. § 12A:2-714(2).
.The counterclaim for breach of the duty of good faith and fair dealing was explicitly addressed in the District Court's denial of Polymer’s Motion to Alter or Amend the Verdict and Judgment.
. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction to review the appeal from a final judgment under 28 U.S.C. § 1291.
. The District Court implicitly rejected Polymer’s unconscionability argument in denying its Motion to Alter or Amend the Verdict and Judgment. We review a district court's conclusions of law de novo. Henglein v. Colt Indus. Operating Corp., 260 F.3d 201, 208 (3d Cir.2001).
. Polymer also challenges the conclusion that it failed to adequately prove consequential damages. Because we agree with the District Court that the Standard Terms and Conditions barred consequential damages, we need not address this argument.
. We review a District Court's factual findings for clear error. Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir.2005). Clear error exists when "although there is evidence to support [a finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
. We review a District Court's decision to award attorneys’ fees for abuse of discretion. McCutcheon v. America’s Servicing Co., 560 F.3d 143, 147 (3d Cir.2009).
. Leistritz did not waive its claim as claims for attorneys' fees are brought by motion before a judge. Fed.R.Civ.P. 54(d)(2).
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OPINION
AMBRO, Circuit Judge.
Kenneth Burnam, a/k/a Venton Eugene Smith (his true legal name), appeals the order of the District Court denying his motion for a sentence reduction under Section 3582(c) of the Sentencing Reform Act of 1984. 18 U.S.C. § 3582(c)(2). Bur-nam claims the Court erred in refusing to reduce his sentence pursuant to the recent amendments to the United States Sentencing Guidelines (“the Guidelines”) for cocaine-base offenses. For the reasons noted below, we affirm the order of the District Court denying the motion.
*971I.
On August 25, 1999, Burnam was indicted by a federal grand jury. The charged offenses were: (1) distribution and possession with intent to distribute cocaine and 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1); and (2) conspiracy to distribute and possess with intent to distribute the same substances, in violation of 21 U.S.C. § 846. Pursuant to a negotiated and written plea agreement, Burnam was charged with and pled guilty to one count of operating and maintaining a drug-involved premises under 21 U.S.C. § 856. This offense carries a maximum penalty of 20 years’ imprisonment. 21 U.S.C. § 856(b).
A pre-sentence report was prepared by the United States Probation Office. The report determined that the amount of cocaine was at least 11 kilograms, which yielded a base offense level of 38 under Guidelines §§ 2Dl.l(a)(3), (c)(1). Two levels were added for possession of a firearm, and four levels were added for Burnam’s role in the offense as an organizer or leader. Three levels were subtracted for acceptance of responsibility. This resulted in a total offense level of 41 (38+2+4-3=41). Burnam’s criminal history category was III, resulting in a recommended imprisonment range of 360 months to life under the Guidelines. However, because the underlying offense had a statutory maximum of 20 years’ imprisonment, under Guidelines § 5Gl.l(a), 240 months became the final Guideline sentence calculation, and Burnam was sentenced to that maximum. In April of 2004, the Government moved for, and the Court granted, a reduction of Burnam’s sentence, on account of his cooperation, to a term of 222 months.
In March of 2008, Burnam moved pro se for a further reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Following the appointment of counsel, a counseled supplement was filed in August of 2008. The District Court denied the motion on the merits shortly thereafter. J.A. 3-7, 8. This appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. However, if the requirements of § 3582(c)(2) are not met, the District Court lacks the further authority to reduce a sentence. See United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009) (finding a lack of jurisdiction to consider a sentence reduction when the requirements of § 3582(c)(2) were not met); United States v. Mateo, 560 F.3d 152, 156 (3d Cir.2009) (affirming district court’s denial of a motion to reduce sentence because the Guidelines did not actually lower defendant’s applicable sentencing range as required under § 3582(c)(2)). While a District Court does not have the authority to reduce a sentence under § 3582(c)(2) when a sentencing range has not been subsequently lowered by the Sentencing Commission, it nonetheless has jurisdiction to determine whether the requirements of § 3582(c)(2) are met.1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review over the District Court’s interpretation of the Guidelines is plenary. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc). Our review over the District Court’s factual findings relevant to the Guidelines is for clear error. Id. We *972review a court’s ultimate decision whether to grant or deny a defendant’s motion for sentence reduction under § 3582(c)(2) for abuse of discretion. Mateo, 560 F.3d at 154.
III.
Burnam desires a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The statutory text reads as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). Burnam is not entitled to benefit from this provision because his sentencing range has not been lowered by the Sentencing Commission. Without an actual reduction in his range, there is nothing the District Court can do under this statute to grant him relief.
While Burnam ultimately benefitted from the charge bargain, under the Guidelines the offense level for maintaining a drug-involved premises is the same as that of the underlying controlled substance offense. Guidelines § 2D1.8(a)(1). Burnam conceded as much in the District Court. J.A. 86 (Appellant’s Suppl. Pro Se Mot. ¶¶ 8-9). He also conceded that the straightforward, sentencing range calculation used by the Government would result in the same sentence, even considering the retroactive crack cocaine amendment, because the calculation would result in a Guidelines recommendation of more than 240 months, which would subsequently be reduced to the statutory maximum of 240 months. J.A. 88 (Appellant’s Suppl. Pro Se Mot. ¶ 22).
Instead of following this logic, Burnam urged the District Court to consider a different calculation. He proposed then, and maintains now, that the proper method of calculating his Guidelines sentence involves the following exercise of arithmetic gymnastics: (1) completely ignore the quantity of cocaine actually found; (2) completely ignore the actual Guidelines calculation that resulted in his sentence; (3) start with the statutory maximum sentence that was imposed; (4) using the old tables, find the corresponding quantity of cocaine implied by the actual sentence imposed; (5) use this completely fictitious quantity; and (6) look up the sentence under the new tables which corresponds to this fictitious quantity.
This is not arithmetic — it is alchemy, and Burnam’s attempt to turn lead into gold with tortured, backward reasoning simply does not compute. Nor does it comport with the demands of 18 U.S.C. § 3582(c)(2). While the argument is, in one sense, “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” the substance of Burnam’s motion is based on a fictitious quantity wholly detached from the reality of the offense and the underlying facts. The range for Burnam’s actual offense (capped at 240 months) has not budged under the new Guidelines. Under the statute, a court cannot simply ignore reality and “may not modify a term of imprisonment” based upon a set of wholly fabricated and contrived facts that never were in existence and bear no relation to the proper application of the Guidelines. 18 *973U.S.C. § 3582(c)(2) (emphasis added). Consequently, there is no relief available for Burnam under the statute.
******
The District Court lacked the authority to reduce Burnam’s sentence. We thus affirm its judgment.
. We note that this is distinct from the timeliness issue we discussed in United States v. Higgs, where we found we lacked jurisdiction even to begin the § 3582(c)(2) inquiry. See United States v. Higgs, 504 F.3d 456, 464 (3d Cir.2007) (citing United States v. Smith, 438 F.3d 796, 799 (7th Cir.2006)).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Luis Emilio Perez Muniz (“Perez”) petitions for review of a final order of the Board of Immigration Appeals (“BIA”) denying his application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (“CAT”). Perez claims that, if he is returned to his native Guatemala, he will face physical violence, including murder, like his father and uncles. Despite our sympathy for the suffering of Perez’s family, we must deny his petition.
I. Background
A. Perez’s Application for Asylum
Perez, a thirty-one year old, unmarried citizen of Guatemala, entered the United States illegally in 1989 at the age of twelve.1 He first applied for asylum in 1994, and his application was referred to an immigration judge on June 11, 2001. Perez was subsequently charged with being removable as an illegal alien. He conceded removability but sought relief from removal by applying for asylum, withholding of removal, and protection under the CAT. He also sought voluntary departure in the event his application was denied.
The case was postponed and continued for several years and, on October 11, 2005, was reassigned to a new Immigration Judge (“IJ”) who scheduled it for an April 4, 2006 hearing. At the hearing, Perez *975withdrew his application for asylum, and the IJ continued the case until May 9, 2006 to allow counsel time to determine whether Perez was eligible for relief under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”).
On May 9, 2006, counsel for Perez informed the IJ that Perez was ineligible for NACARA relief and sought to reinstate his initial asylum application. The IJ scheduled a hearing on the merits of Perez’s application for May 23, 2006, only two weeks later, out of concern for the Department of Justice’s case completion goals. The IJ asked counsel whether she objected to the scheduling and counsel replied that she did not. The IJ made clear that, although she sought to resolve Perez’s case by June in accordance with the case completion goals, “[i]f the case cannot be finished before the end of June then we won’t finish it before the end of June because [Perez] need[s] to be afforded with a fair hearing....” (App. at 158.) The IJ also told Perez that if he and his counsel were able to convince the court that the scheduling is “hurting [Perez’s] case,” she would “have an open mind about [rescheduling].” (App. at 160.)
B. The May 23, 2006 Hearing
On May 23, 2006, the IJ held the hearing on Perez’s application for asylum, withholding of removal, relief under CAT, and voluntary departure in the alternative. Perez, his mother, and his sister testified concerning the kidnapping and murder of Perez’s father and uncles in Guatemala.
Perez’s mother testified that Perez’s father had been in the Guatemalan army during the Guatemalan civil war, and that he retired in approximately 1983. On September 15, 1988, he was kidnapped by two men who came to the family home. Two other men took Perez’s mother into the home and threatened her and her children should she report the kidnapping. The men left a note that read “hooray for the FARC.” Perez’s mother did not know who the men were and never learned what “FARC” meant, although she suspected it referred to guerillas.2
Perez’s father returned a month later; his right hand had been mutilated, with two of his fingers cut off. Immediately thereafter, Perez and his sister, mother, and father fled Guatemala for Mexico, whereupon their family home in Guatemala was burned down. Perez’s mother eventually sent Perez and his sister back to Guatemala to live with their godmother. Perez’s father and mother continued on to the United States, though Perez’s father was deported to Guatemala, while Perez’s mother continued on to New Jersey. Perez’s mother worked in New Jersey with the hope of bringing her children to the United States to join her, which she eventually did.
Perez’s mother spoke with Perez’s father only twice before she learned from her daughter in 1998 that he had been killed in Guatemala. Perez’s mother testified that she knew nothing about Perez’s father’s activities between 1988 and 1998. Additionally, Perez’s mother learned that *976Perez’s uncles, who had also served in the military, were killed, although she testified that she knew nothing regarding the circumstances of their murders. Perez’s mother expressed fear that, should her son return to Guatemala, he would suffer the same fate as his father.
Perez’s sister also testified concerning the murder of her father. She testified that she did not know who committed the murder. She returned to Guatemala in 1998, approximately six months after her father was murdered, to identify the body and to obtain information from the police concerning their investigation into the murder. The police exhumed the body so that she could identify it. Perez’s sister received two anonymous notes at her hotel, warning her to “be careful what you do” and threatening that “if you want to know what happened we will let you know exactly what happened.” (App. at 285.) She informed the police of the notes, and, although they provided her with police protection, they suggested that she leave the country in light of the threats. She has not contacted the police to learn the status of the investigation, nor has she received any notice that the investigation has been resolved. Like her mother, Perez’s sister fears that, if her brother were to return to Guatemala, he would suffer the same fate as their father.
Perez also testified at his hearing. Like his mother and sister, Perez testified that he does not know who killed his father or his uncles and that he has not made any efforts to contact the police, or anyone else in Guatemala, for more information. However, he testified that he fears returning to Guatemala because he fears that whoever killed his father and uncles would try to kill him as well.
C. The IJ and BIA’s Decisions
In an oral decision, the IJ denied Perez’s application for asylum, withholding of removal and relief under CAT, but granted his petition for voluntary departure. The IJ found that Perez’s mother and sister, and Perez himself, testified credibly as to the kidnapping and murder of Perez’s father and uncles. But she noted that “there is a gaping hole [as to] who it is that the respondent actually fears” which “cannot be filled because none of the family can identify [who is responsible for the murder].” (App. at xviii.) She added, “[w]ithout knowing who it might have been who committed the murder, ... the court cannot link the murder to the family as a potential social group, much less to the respondents race, religion, nationality, or even political opinion that might have been attributed to him as a result of his family membership.... ” (App. at xix.) Furthermore, the IJ indicated that the fact that the police were investigating the murder and went so far as to exhume the father’s body so that Perez’s sister could identify it suggests that the Guatemalan government was not “unable or unwilling to control” whomever murdered Perez’s father. (App. at xviii.) Ultimately, the IJ concluded that Perez lacked proof as to the identity and motive of the murderers of his father and uncles, and, thus, could not establish persecution as required to prevail on his application.
Perez appealed to the BIA. In a per curiam opinion, the BIA accepted the IJ’s finding of facts and “adopt[ed] and affirm[ed] her comprehensive decision,” noting the considerable uncertainty as to who murdered Perez’s father, why they murdered Perez’s father, and the extent of any connection between the father’s kidnapping in 1988 and his murder ten years later. (App. at iii.) Perez then petitioned our Court for review.
*97711. Discussion3
A. The IJ’s Determination is Supported by Substantial Evidence
The IJ expressed sympathy for Perez’s situation but concluded that, in the absence of evidence as to the identity and motives of the murderer of Perez’s father, Perez could not establish that he would suffer persecution upon return to Guatemala as a result of race, religion, nationality, membership in a particular social group, or political opinion. Perez argues that the IJ ignored evidence that he “had a well-founded fear of persecution because of his membership in a particular social group, i.e., children of members of the Guatemalan military,” and that he possesses a “well-founded fear of persecution should he be removed to Guatemala due to the political opinion that would be imputed to him by the Guatemalan guerillas as a supporter of the Guatemalan government due to his father’s service in the Guatemalan military.” (Petitioner’s Op. Br. at 2-3.) He relies heavily on his mother’s testimony, which, according to Perez, established that his family was “targeted for persecution by the guerillas in Guatemala due to their service in the Guatemalan military during the Guatemalan Civil War.” (Id. at 12.)
“Where, as here, the BIA adopts and affirms the decision of the IJ, as well as provides its own reasoning for its decision, the Court reviews both the decisions of the IJ and the BIA.” Hashmi v. Att’y Gen., 531 F.3d 256, 259 (3d Cir.2008). An IJ’s factual determinations must be upheld if supported by substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), while questions of law are reviewed de novo, Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). “Findings of past and future persecution are factual determinations and are accordingly subject to ... deferential review.” Al-Fara v. Gonzales, 404 F.3d 733, 738 (3d Cir.2005). Accordingly, the IJ’s determination that Perez did not establish a well-founded fear of future persecution “can be reversed only if the evidence presented by [Perez] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” See Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812; see also Singh v. Gonzales, 406 F.3d 191, 195 (3d Cir.2005).
Perez seeks asylum, withholding of removal and relief under the CAT. The Attorney General may grant asylum to an alien who qualifies as a “refugee,” defined by the Immigration and Nationality Act as “any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1). “To • establish eligibility for asylum, an applicant must demonstrate past persecution by substantial evidence or a well-founded fear of persecution that is both subjectively and objectively reasonable.” Singh, 406 F.3d at 195; see also Sheriff v. Att’y Gen., 587 F.3d 584, 589 (3d Cir.2009) (“A refugee is a ‘person unable or unwilling to return to the country of that person’s nationality or habitual residence because of past persecution or because of a well-founded fear of future persecution on account of h[er] race, religion, nationality, membership in a par*978ticular social group, or political opinion.’ ” (quoting Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir.2002) (alteration in original))). The alien seeking asylum bears the burden of establishing that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C § 1158(b)(l)(B)(i); see also 8 C.F.R. § 1208.13. An alien can also satisfy his burden of proof by establishing persecution on account of a political opinion imputed to him by the foreign government. Lukwago v. Ashcroft, 329 F.3d 167, 181 (3d Cir.2003); see also Chavarria v. Gonzalez, 446 F.3d 608 (3d Cir.2006). The persecution must have been “committed either by the government or by forces that the government is either unable or unwilling to control.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003); see also Lie v, Ashcroft, 396 F.3d 530, 537 (3d Cir.2005). “[A]lthough an applicant is not required to provide direct proof of his persecutor’s motives, ‘he must provide some evidence of it, direct or circumstantial.’ ” Lukwago, 329 F.3d at 170 (quoting Elias-Zacanas, 502 U.S. at 483, 112 S.Ct. 812) (emphasis in original).
An alien is entitled to withholding of removal to a country “if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). Withholding of removal is only available if the alien meets a stricter standard than asylum, namely whether “it is ‘more likely than not’ that he or she will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if deported to his or her home country.” Singh, 406 F.3d at 196. “Given this higher standard, an applicant who does not qualify for asylum also does not qualify for withholding of removal.” Guo v. Ashcroft, 386 F.3d 556, 561 n. 4 (3d Cir.2004).
In order to be eligible for protection under the CAT, an applicant must establish that “it is more likely than not that he will be tortured if removed.” Lukwago, 329 F.3d at 182-83. “The CAT does not require a showing that the torture is on account of any protected ground, but only applies to torture that ‘is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.’ ” Id. at 183 (quoting 8 C.F.R. § 208.18(a)(1)). “[A]n alien seeking relief under the CAT can establish that the government in question acquiesces to torture by showing that the government is willfully blind to a group’s activities.” Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 69 (3d Cir.2007). A foreign government’s willingness or ability to control a particular group is therefore relevant, but not conclusive of, governmental acquiescence. Id. at 65.
All three witnesses at the hearing— Perez, his mother, and his sister — testified that they did not know who kidnapped or killed Perez’s father or who killed his uncles. Even though Perez’s mother testified that his father’s abductors left a paper identifying the FARC, she also testified that she did not know who the FARC was other than suggesting that they might be guerillas. No evidence, beyond the cryptic note found by the mother, indicates that the FARC had ever been active in Guatemala. And, although Perez’s father and uncles were in the Guatemalan military, Perez’s father retired from the military five years before his kidnapping and fifteen years before his murder. Furthermore, no witness had any information concerning Perez’s father’s activities in Guatemala during the *979decade between his kidnapping and murder.
Similarly, despite Perez’s assertions that the threats his sister received upon return to Guatemala indicate that, if he returned to Guatemala, his father’s killers would impute to him a given political opinion, the record is devoid of any indication as to who left the anonymous notes at her hotel in Guatemala when she returned to identify her father’s body. Perez urges that the threatening notes received by his sister establish imputed political opinion. This is speculative at best, as the notes contain no reference whatsoever to any opinion or motive, but merely warned her to stop investigating her father’s death. Furthermore, the sister’s testimony established that the authorities in Guatemala investigated the murder and provided her with police protection, indicating that the government was concerned with locating the perpetrators and controlling the situation. The fact that the authorities made efforts to investigate the murder countervails the notion that the alleged acts of persecution were committed by the Guatemalan government or by a force that the Guatemalan government was unwilling or unable to control. It also supports the IJ’s conclusion that Perez could not establish fear of persecution sufficient to cany his burden on his asylum application.
Given the uncertainty surrounding the identity of who murdered Perez’s father and uncles and the motive for those murders, we cannot say that the IJ and BIA’s decisions were erroneous. Simply because Perez’s father was, at one point, a member of the Guatemalan military does not mandate the conclusion that his killers fifteen years later acted based on assumptions about his political opinion. Nor do the threatening notes received by Perez’s sister require the conclusion that some political opinion will be imputed to Perez or that he will be targeted as a child of a member of the Guatemalan military, because there is no evidence indicating who wrote the notes or why the author targeted Perez’s sister. See Singh, 406 F.3d at 196-97 (noting that, in cases concerning imputed political opinion, “[t]he focus is ... on whether this attribution [of political opinion to the applicant for asylum] has in fact occurred.”); see also Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997) (“To establish an imputed political opinion, the applicant must show that his persecutors actually imputed a political opinion to him.”).
Perez asserts that he has presented “circumstantial evidence that the Guatemalan guerillas kidnapped [his] father and murdered [his] father and his uncles due to their service in the Guatemalan military.” (Petitioner’s Reply Br. at 7.) But the only circumstantial evidence upon which Perez relies is the note stating “hooray for the FARC,” allegedly left by the kidnappers, and the fact that his father and uncles served in the military at some point in the distant past. That evidence is weak at best and, as discussed above, leaves considerable gaps in Perez’s case. Furthermore, even if the evidence could arguably support a finding of persecution, it does not compel such a finding. Since the record supports the conclusion that there is insufficient evidence establishing that Perez would be persecuted based on membership in a social group or an imputed political opinion upon return to Guatemala, there is no basis for vacating the BIA’s decision.'4 See Am. Textile Mfrs. Inst., *980Inc. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence ...(internal quotations omitted)). In sum, although Perez presents sympathetic circumstances, the absence of evidence as to who murdered his family members and the motive for committing those murders supports the IJ and the BIA’s denial of Perez’s application for asylum, withholding of removal, and protection under CAT.5
B. Perez’s Due Process Rights Were Not Violated
Perez also argues that the IJ violated his procedural due process rights “by expediting [his] hearing in order to complete [his] case by the end of June, 2006 so as to comply with the case completion goals established by the United States Department of Justice.” (Petitioner’s Op. Br. at 18.) Specifically, Perez takes issue with the IJ’s decision at the May 9, 2006 hearing — -at which counsel for Perez informed the IJ that Perez was ineligible for NA-CARA and that Perez sought to reinstate his initial asylum application — to schedule the hearing on the reinstated application for May 23, 2006. According to Perez, the IJ’s expedited scheduling deprived him of additional time to investigate the identities and motives of the individuals who murdered his father and threatened his sister.
“Aliens facing removal are entitled to due process.” Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005). In the context of removal hearings, an alien is entitled to a full and fair hearing and a reasonable opportunity to present evidence. Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006). To prevail on a due process claim, an alien “must show that he was prevented from reasonably presenting his ease.” Khan v. Att’y Gen., 448 F.3d 226, 236 (3d Cir.2006) (internal quotations omitted). Additionally, the alien must establish substantial prejudice as a result of the alleged procedural error. Singh, 432 F.3d at 541. Our review of Perez’s due process claim is plenary. See id.
Perez has not established that the scheduling of his hearing deprived him of due process. Although the hearing was scheduled two weeks after Perez reinstated his application for asylum, Perez ignores the fact that he had the opportunity to investigate the identity and motive of his father’s killers long before that. Indeed, a hearing on Perez’s initial asylum application was scheduled for April 19, 2002. The matter was repeatedly continued, and there is no apparent reason why he could not have investigated his claims during that time. In fact, Perez testified that he never made any such effort to identify his father’s killer.
Moreover, the IJ specifically asked counsel for Perez whether she had any objection to the scheduling of the hearing on May 23, 2006 and counsel replied that she did not. Although the IJ indicated *981that she sought to abide by case completion guidelines, she also made clear that the requirement that Perez receive a fair hearing was of greater importance than the court’s schedule. Additionally, the IJ stated that she would “have an open mind” if Perez and his counsel established a hardship as a result of the schedule, but there is no indication that Perez ever sought a continuance based on the concerns he raises now. (App. at 160.) Accordingly, Perez cannot establish that he was precluded from presenting his case or that he suffered any prejudice, let alone substantial prejudice, as a result of the IJ’s holding the hearing when she did. Since Perez received a full and fair hearing on his application, he cannot establish any due process violation.6
III. Conclusion
For the foregoing reasons, we will deny Perez’s petition for review.
. Perez's initial removal petition lists him as having entered the United States on or about September 15, 1991, however, Perez amended his date of last entry as September 15, 1989 and Perez, his mother, and his sister testified that he entered the country in 1989.
. FARC is the acronym for the Fuerzas Armadas Revolucianarias de Colombia, a leftist guerilla revolutionary group active throughout much of Colombia. See Gomez-Zuluaga v. Att'y Gen., 527 F.3d 330, 335 (3d Cir.2008). At the hearing, the IJ noted that she had only heard of FARC in connection with Colombia and counsel for Perez admitted that she was not aware of anything linking FARC's activities to Guatemala, other than possibly drug trafficking. The country report on Guatemala in the record does not mention a FARC presence in Guatemala.
. We have appellate jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252.
. Perez also argues “[t]he persecution of [his] father should be evaluated in light of [Perez's] age at the time [his] father was kidnapped and brutalized and the family home was burnt down,” (Petitioner’s Reply Br. at 7, relying on Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir.2007) (“[A]ge can be a critical factor in the adjudication of asylum claims *980and may bear heavily on the question of whether an applicant was persecuted or whether she holds a well-founded fear of future persecution.” (quoting Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir.2004) (alteration in original))).) However, taking Perez's age into consideration does not cure his inability to establish the motive of those responsible for the murders of his father and uncles.
. Since Perez cannot meet his burden on his application for asylum, his claim for withholding of removal likewise fails. Furthermore, since there is no evidence suggesting that Perez would suffer torture as a result of the consent or acquiescence of the Guatemalan government, the IJ and BIA appropriately rejected his CAT claim.
. Perez's reliance on Hashmi v. Attorney General of the United States, 531 F.3d 256 (3d Cir.2008) is misplaced. In that case, Hashmi was subject to removal proceedings, but his wife, a United States citizen, had petitioned for residency based on their marriage. Id. at 257-58. The removal proceedings and the petition for residency proceeded on separate tracks within the Department of Homeland Security, but the government employees responsible for handling the respective matters failed to share information necessary for resolving both claims, delaying both proceedings. Id. at 258-59. The IJ granted three continuances of the removal proceedings because of the pending residency petition. Id. at 258. In light of the continued delay on the residency petition through no fault of his own, Hashmi requested an additional six-month continuance, which the government did not oppose. Id. at 259. The IJ denied the request, noting his obligation to resolve the case within the time frame established by the DOJ's case-completion goals, and found Hashmi removable. Id. We held that the IJ's denial of the unopposed motion for a continuance, based solely on case completion goals, was an abuse of discretion and explained that case-completion goals "should not be read as an end in themselves but as a means to prompt and fair dispositions, giving due regard to the unique facts and circumstances of the case.” Id. at 258, 261.
Unlike Hashmi, the matter before us concerns the scheduling of a hearing on a date that was specifically agreed to by counsel for Perez. There is no reason an IJ cannot schedule a hearing on a date that conforms to the DOJ's case completion guidelines so long as the alien is not unduly prejudiced by the timeframe. Importantly, counsel for Perez never requested a continuance and never indicated to the IJ that the scheduling posed a hardship for her client, despite the IJ’s clear willingness to reschedule if necessary. Accordingly, there is nothing about the circumstances of Perez's case that raises concerns akin to those in Hashmi.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lloyd George Maxwell appeals the district court’s order denying his motion to compel the production of exculpatory evidence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Maxwell, No. 1:93-er-00262-1 (E.D. Va. filed Oct. 8, 2009; entered Oct. 9, 2009). We further deny Maxwell’s motion to suppress exculpatory evidence. 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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OPINION
PER CURIAM.
Bruce Murray appeals from an order of the District Court dismissing his amended complaint. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
In May 2009, Murray, a pro se prisoner, filed a civil action pursuant to 42 U.S.C. § 1983 against David DiGuglielmo (“DiGu-glielmo”), Superintendent at the State Correctional Institution at Graterford (“SCI Graterford”); Mary Canino (“Canino”), Hearing Examiner; Captain Thomas Doh-man (“Dohman”); and Lieutenant John Moyer (“Moyer”). Murray alleged that Dohman and Moyer violated his constitutional rights on December 6, 2006, when they cited him for possession of drugs, possession of contraband, unauthorized use of the mail, and lying to employees. Murray claimed that Canino later violated his constitutional rights when she found him guilty of the misconduct without any supporting evidence and sanctioned him to 360 days in the Restricted Housing Unit. Lastly, he claimed that he was transferred from SCI Graterford to another facility on *852April 2, 2007, in retaliation for filing grievances over his medical care.
On June 9, 2009, the Defendants moved to dismiss Murray’s complaint on the basis that his claims were untimely, and thus, barred by the applicable statute of limitations. Because Murray indicated in his response to Defendants’ motion to dismiss that some of the underlying events may have occurred within the statute of limitations, the District Court permitted Murray to amend his complaint to include “all allegations and the facts supporting them.” Murray filed an amended complaint on July 27, 2009, and the Defendants again moved to dismiss it. After thoroughly reviewing the amended complaint, the District Court dismissed it pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief could be granted. Even construing the amended complaint liberally, the District Court concluded that the claims were untimely.1 Murray appeals that determination.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. When reviewing a complaint dismissed under § 1915, this Court applies the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘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).
We agree with the District Court’s analysis regarding the timeliness of Murray’s claims. A complaint may properly be dismissed for failure to state a claim on statute of limitations grounds if the untimeliness of the complaint is apparent on its face. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir.1994). While 42 U.S.C. § 1983 does not set forth a limitations period, “federal courts must look to the statute of limitations governing analogous state causes of actions.” Urrutia v. Harrisburg County Police Dep’t, 91 F.3d 451, 457 n. 9 (3d Cir.1996). Here, as the District Court noted, the applicable statute of limitations is that governing personal injury claims in Pennsylvania. See Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Therefore, Murray had two years from the time his cause of action accrued in which to file his complaint. See 42 Pa. Cons.Stat. Ann. § 5524(2). A § 1983 cause of action accrues on the date when a plaintiff knew or should have known his rights had been violated. See Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.1991).
Here, Murray knew, or had reason to know, of his alleged mistreatment when it occurred. Murray’s claims against the Defendants arose between December 5, 2006, and April 2, 2007. However, he did not file a complaint until May 18, 2009. Accordingly, Murray’s claims are untimely and the District Court properly dismissed *853his amended complaint on that basis. The District Court also properly dismissed Murray’s motion for relief from judgment under Fed.R.Civ.P. 60(b).
As Murray’s appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Murray’s motion for appointment of counsel is denied. Murray’s motion and amended motion for “Production of Documents, Etc. Under Rule 34(a)” are also denied.
. Murray also appeals from an order of the District Court denying his motion for relief from judgment under Fed.R.Civ.P. 60(b).
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OPINION
PER CURIAM.
Angel Delgado appeals from the order of the District Court dismissing as untimely his motion for relief from his sentence under 28 U.S.C. § 2255. For the following reasons, we will vacate the judgment and remand for further proceedings. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
*854I.
Delgado pleaded guilty to drug trafficking offenses involving crack cocaine and heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2(a). The District Court sentenced him to fifty-four months of imprisonment on July 26, 2007. Delgado did not appeal. Thus, his conviction became final when the ten-day period for appealing expired on August 9, 2007. See Fed. R.App. P. 4(b)(1)(a), 26(a)(2). Any § 2255 motion was due to be filed within one year after that, or by August 8, 2008. See 28 U.S.C. § 2255(f)(1).
On March 23, 2008, Delgado sent a letter pro se to the District Court raising certain questions about his sentence and the crack cocaine Sentencing Guidelines amendment.1 He also raised allegations about his counsel. According to Delgado, the base offense level set forth in the plea agreement was too high, and he wanted to change his plea to “not guilty.” He further alleged that he raised the issue with counsel, but that counsel “misguided” and “scared” him “into accepting the terms of my plea agreement.” He closed his letter as follows: “On my behalf I would like to file a 2255 on [counsel] for insufficient assistance of counsel for his failure to represent me to the best of his ability and for withholding information from me as well as lying to me.” The letter was docketed in the District Court merely as a letter “inquiring about the level of offense that [Delgado] was sentenced to,” (Dist. Ct. Docket No. 483), and the District Court took no action on it.2
On September 1, 2008, some ‘ three weeks after the limitations period expired, Delgado filed an actual § 2255 motion on the standard form. Delgado repeated his allegations against counsel, stated that counsel had him “sign a plea agreement that I didn’t think was right,” and added an allegation that counsel had refused to file a requested appeal challenging the calculation of his sentence. On September 9, 2008, the District Court issued an order directing Delgado to show cause why it should not dismiss the motion as untimely, together with the notice of elections required by United States v. Miller, 197 F.3d 644, 652 (3d Cir.1999). Delgado did not respond. By memorandum and order entered November 7, 2008, the District Court dismissed the § 2255 motion as untimely, also faulting Delgado for failing to respond to the order to show cause. The District Court acknowledged Delgado’s March 23 letter, but construed it merely as a statement that Delgado intended to file a § 2255 motion in the future. Delgado then responded by letter dated November 12, 2008, that he never received the order to show cause. The District Court treated the letter as a motion for reconsideration and again directed Delgado to file a statement of reasons why the § 2255 motion should not be deemed untimely. Instead, Delgado filed pro se a notice of appeal from the November 7 order. The District *855Court later denied his motion for reconsideration. Delgado has not separately appealed that ruling.
By order entered October 15, 2009, we granted a certificate of appealability on the issues of whether the District Court should have construed Delgado’s March 23 letter as a potential § 2255 motion triggering the District Court’s obligation to provide the notice required by Miller, and whether the District Court thus erred in dismissing Delgado’s subsequently filed § 2255 motion as untimely. We also directed the Government to show cause why we should not summarily vacate the District Court’s order, and the Government has filed its response.3
II.
We have long held that courts must liberally construe pro se filings with an eye toward them substance rather than their form. See Miller, 197 F.3d at 648. In this case, Delgado’s March 23 letter specifically advised the District Court that he believed his sentence was incorrect, that he wanted to withdraw his guilty plea but that counsel misguided and scared him into accepting it, and that “[o]n my behalf I would like to file a 2255 on [counsel] for insufficient assistance of counsel for his failure to represent me to the best of his ability and for withholding information from me as well as lying to me.” Construed liberally as they must be, these statements express a present intention to seek relief potentially available under § 2255. Accordingly, they were sufficient to trigger the District Court’s obligation to provide Delgado with notice of the elections required by Miller. See Miller, 197 F.3d at 652 (“[U]pon receipt of pro se pleadings challenging an inmate’s conviction or incarceration— whether styled as a § 2255 motion or not — a district court should issue a notice to the petitioner regarding the effect of his pleadings.”). Among other things, Miller requires district courts to notify petitioners that they may “withdraw the petition and file one all-inclusive § 2255 petition within the statutory period.” Id.
Delgado thus filed with the District Court a potential § 2255 motion on March 23, 2008, with 141 days remaining in the statutory period. Under Miller, the District Court should have notified him at that time that he could file an all-inclusive petition within the statutory period. Instead, the District Court took no action on Delgado’s letter and, when Delgado later filed an actual § 2255 motion some three weeks after the statutory period had expired, dismissed it as untimely. Moreover, because the allegations contained in the § 2255 motion arose at least partially from the same general “conduct, transaction, or occurrence” described in the March 23 letter, it should be deemed to relate back to that letter at least to that extent. Hodge, 554 F.3d at 378. Thus, under the circumstances, the District Court should not have dismissed Delgado’s § 2255 motion as untimely.
The Government’s arguments to the contrary are unpersuasive. The Government appears to suggest — somewhat surprisingly, and in sole reliance on a non-precedential (and inapposite) opinion — that the District Court had no obligation to review Delgado’s March 23 letter at all. Suffice it to say that we disagree. The Government also argues, as the District Court wrote, that Delgado’s March 23 letter stated merely that he “would” file a § 2255 motion in the future. Liberally *856construed, however, Delgado s letter indicates a present intention to seek § 2255 relief from the District Court, and thus should have triggered the Miller notice.
The Government further argues that Delgado himself has never claimed that the District Court should have construed his March 23 letter as a § 2255 motion. Instead, as the Government notes, Delgado acknowledged the untimeliness of his subsequent § 2255 motion but sought relief from its untimeliness on the grounds that he did not know of the statute of limitations “until I did some research,” which is not sufficient to toll the statute. Delgado’s pro se filings, however, reflect considerable confusion regarding the status of his case,4 and we will not require him to have argued what, under Miller, the District Court should have done sua sponte. Moreover, if the District Court properly had construed Delgado’s March 23 letter, then it would have sent him notice of the limitations period with 141 days to go and the issue of timeliness likely never would have arisen in the first place.
Finally, the Government argues that the allegations in the March 23 letter are insufficient by themselves to warrant relief. That may be the case, but the argument is beside the point. In response to his letter, Delgado should have received notice under Miller of the opportunity to file an all-inclusive § 2255 motion and, though he later filed a § 2255 motion, he did so without the benefit of the Miller notice. Under the circumstances, we cannot assume that Delgado intended his § 2255 motion to constitute the one, all-inclusive § 2255 motion that the Miller notice would have informed him he had the opportunity to file. For that reason, the merits of Delgado’s claims are not properly before us, and the District Court should address them in the first instance if and when appropriate on remand.
Accordingly, we will vacate the District Court’s judgment. On remand, the District Court is directed to treat Delgado’s § 2255 motion as filed on March 23, 2008, the date of the letter that should first have triggered the Miller notice. The District Court is further directed to reissue the Miller notice and provide Delgado with the various options to proceed specified therein.5 Finally, because the District Court should have provided Delgado with those options on March 23, when he still had time remaining within the statute of limitations, we will toll the statute of limitations to allow Delgado, should he chose to do so, to file a timely, all-inclusive § 2255 motion within the time permitted by the District Court.
. Delgado mailed his letter on March 23, but it was docketed as received on March 26. Under the prison mailbox rule, prisoner's filings are deemed filed upon mailing. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). Thus, we will refer to Delgado's submissions as having been filed on the date he mailed them.
. Delgado previously had filed a motion for the appointment of counsel to seek a sentence reduction under the crack cocaine amend-menl to the Sentencing Guidelines (Docket No. 480). The District Court granted that motion and appointed Delgado's original counsel, whom it later allowed to withdraw, then appointed different counsel, whom it allowed to withdraw as well. It appears that Delgado already had received the benefit of the amendment at sentencing, which was second counsel’s basis for seeking leave to withdraw.
. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255(d). We exercise plenary review over the District Court’s dismissal of a § 2255 motion as untimely. See Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009).
. For example, Delgado stated in his November 12 letter that he had not mentioned his § 2255 motion in a previous letter to the District Court because he “thought that a higher court was handling that matter being that [I] was challenging this court's decision.” (Docket No. 509 at 3.)
. The District Court included a proper Miller notice in its order of September 9, 2009, which also directed Delgado to show cause why it should not dismiss his § 2255 motion as untimely. After the District Court dismissed the motion, Delgado argued that he had never received the September 9 order. Because the District Court already had dismissed Delgado’s § 2255 motion, Delgado understandably addressed his arguments thereafter to the issue of dismissal, not any election he might have made under Miller. The District Court's September 9 order gave Delgado forty-five days to make his election under Miller, and we see no reason why a similar period would not be warranted on remand.
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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/8477255/
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OPINION
PER CURIAM.
Zhuangkao Hao, a native and citizen of the People’s Republic of China, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will grant the government’s motion for summary affirmance and deny Hao’s petition for review because it presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
I.
Hao was admitted to the United States in 2004 as a visitor, but remained longer than permitted. He was placed in removal proceedings, during which he conceded his removability. Hao applied for asylum, withholding of removal, and CAT protection, claiming that he had been persecuted in China because he and his wife violated *858the family planning policy by having a second son.
In January 2009, Hao had a hearing on his application. He testified that when his wife became pregnant with their second child in 1989, she hid at a relative’s house. Hao was apparently at work elsewhere when officials demanded that his wife have an abortion and took 1,500 RMB from his parents to secure her return for the procedure. He testified that officials also broke into his house and took a sewing machine, television, and clothes closet and that they removed the roof from one of the rooms. His wife did not undergo an abortion and bore a second son in late 1989.
In late 1992, according to Hao, a village official invited him to a meeting regarding the registration of his children and the receipt of land. Once at the office, Hao saw that the only attendees were people who had had two children. The official told them they had violated the family planning policy and gave them contracts for sterilization. Hao refused and tried to flee, but was stopped and held overnight. The next day his wife came and told him that she had signed a sterilization contract so that he would be freed to work. Later that morning, Hao’s wife was sterilized and Hao was released and allowed to take her home. He testified that officials did not trouble his family after the sterilization and that he was given a small plot of land and was permitted to register his second son. About twelve years later, in 2004, Hao left China.
Hao told the IJ that he feared returning to China because he had been here for many years and fellow villagers in the United States may have called home and reported that he applied for asylum. He feared the Chinese government would “take revenge” on him by publicly criticizing him, destroying his home, and seizing his land. But Hao also testified that no one had contacted his wife about him since he left China and that nothing had been done to his family since his departure.
The IJ denied relief and ordered Hao removed to China, concluding that he had not suffered past persecution. The IJ first noted that, as a matter of law, Hao could not maintain a claim for asylum based on his wife’s coerced sterilization. The IJ then considered Hao’s testimony regarding his overnight detention, the fine paid by his parents, the seizure of property, and the partial destruction of his roof, and concluded that the actions did not rise to the level of persecution. In support of this conclusion, the IJ noted that Hao was detained only overnight and was not harmed, that the fine was levied against Hao’s parents, not him, and that there was no evidence that they found it onerous, and that while the partial removal of his roof was “serious,” it was offset by the government’s award of land and registration for the second child. Finally, the IJ rejected Hao’s claims that he will face future persecution in China, noting that it was unreasonable to think that birth control officials would harm him when nothing had been done to him or his family in the sixteen years since his wife’s sterilization, and that his fears of revenge for seeking asylum were unsubstantiated and inconsistent with country conditions as reflected in the evidence of record. On appeal, the BIA affirmed without opinion, noting that the IJ’s decision is the final agency determination in this matter.
Hao timely filed a petition for review and moved for a stay of removal pending this Court’s review. The government opposes a stay and has moved for a summary disposition on the merits of the petition. Hao, who is represented by counsel, opposes summary disposition.
*859II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of removal. In this case, the BIA affirmed the IJ’s decision without opinion and expressly stated that the IJ’s decision was the “final agency determination.” We therefore review the IJ’s decision. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). In doing so, we review factual findings for substantial evidence and may not disturb them “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over conclusions of law, subject to the established principles of deference accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir.2008).
Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate eligibility for asylum by showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a person who has been forced to abort a pregnancy or to undergo involuntary stei’ilization ... shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status for spouses of individuals subjected to coercive population control policies. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). Thus, to the extent that Hao relies on his wife’s sterilization to support his application for asylum, our decision in Lin-Zheng precludes the claim.1
Despite our holding in Lin-Zheng, spouses remain eligible for relief if they can establish their own persecution for resisting China’s coercive family planning policy or a well-founded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). Here, Hao argues that the “issue is whether or not [he] has suffered economic persecution as the result of his wife’s refusal to have an abortion while pregnant with her second child.” He contends that the fine levied against his parents, the seizure of personal property (sewing machine, television, and clothes closet), and the partial destruction of his roof constitute economic persecution. Setting aside the question of whether Hao can establish that he resisted China’s family planning policy by his wife’s refusal to have an abortion, we agree with the IJ that Hao did not demonstrate economic persecution.
“[Persecution connotes extreme behavior, including threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir.2003) (quotations omitted). It “does not include all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Id. The standard for economic persecution is stringent, requiring a petitioner to show “the deliberate imposition of severe economic disadvantage which threatens a petitioner’s life or freedom.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005). Hao, who has *860the burden of establishing his eligibility for asylum, see 8 C.F.R. § 208.13(a), has failed to meet this standard.
First, regarding the fine paid by his parents, Hao failed to present any evidence that the fine affected him, let alone that it was onerous. There is nothing in the administrative record to suggest that Hao relied on his parents to help support himself and his family, nor is there any evidence regarding his parents’ means and how severe the fine was in that context. Similarly, Hao failed to present any evidence that the seizure of his family’s television, sewing machine, and clothes closet imposed a severe economic disadvantage.2 Finally, we agree with the IJ that, while the destruction of a portion of Hao’s roof is “serious,” it does not rise to the level of persecution. Although Hao testified that it was a number of years before he repaired the roof (or built a new house — -the testimony is somewhat unclear) which might suggest that the damage imposed an economic strain, he also testified that he lived in the remaining portion of the house until he did so.3 Even viewed in the aggregate, the evidence does not suggest that the confiscation and destruction of Hao’s property, while unfair or even deplorable, threatened his life or deprived him of housing or other essentials. See Li, 400 F.3d at 168. Accordingly, we are compelled to conclude that the IJ’s decision that Hao failed to show past persecution is supported by the record.
For these reasons, we will grant the government’s motion for summary action and deny the petition for review. In light of this disposition, we also deny Hao’s motion for a stay of removal pending review.
. In his motion for a stay of removal, Hao argued that the IJ erred by failing to conclude that the harm he suffered — detention, his wife’s sterilization, the seizure of personal property, the destruction of a portion of his roof, and the fine paid by his parents — cumulatively amounted to past persecution. After the government moved for summary affir-mance based on our decision in Lin-Zheng, Hao altered his argument, claiming that the issue in his case is whether he suffered economic persecution.
. Hao presented no evidence to help gauge the magnitude of the seizure in relationship to his means, nor did he testify about the impact of the seizure, or whether the objects seized were of particular economic significance. For example, although Hao testified that he is a carpenter and had a small furniture-making business, he did not explain whether his wife used the sewing machine to supplement their income, or whether it was instrumental to keeping their family clothed.
. The IJ considered the fact that Hao was granted land and permission to register his second child after his wife's sterilization. Although this does not appear to be relevant to whether the prior, partial destruction of his roof constituted persecution, the IJ also separately concluded that “the taking off of a roof of one room’’ did not rise to the level of persecution. As explained above, this conclusion is supported by Hao’s own testimony.
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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/8477257/
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OPINION
PER CURIAM.
Charles J. Sechler filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to appoint counsel of his choice and to explain why he has not been allowed access to his current, court-appointed counsel. He also asks this Court to (1) send him his case file so he may proceed pro se, (2) order his current counsel to explain why she has refused to represent him since he absconded, and (3) make an information request on his behalf. For the reasons that follow, we will dismiss the petition.
In 2007, Sechler was convicted of drug-related charges by a jury in the United States District Court for the Middle District of Pennsylvania, but he fled to Canada before he was sentenced. Sechler was arrested by Canadian authorities in 2008 and detained. It appears that Sechler claimed refugee status, which was denied, and that a deportation order was issued in March 2008. It also appears that, to date, he remains in detention in Canada. In the meantime, the criminal case is at a standstill: the District Court has not sentenced Sechler in absentia and it appears from correspondence on that court’s docket that it does not intend to move forward until Sechler returns to the jurisdiction. In November 2009, Sechler filed a mandamus petition with this Court, seeking the aforementioned relief. It appears that he is frustrated by what he deems his court-appointed counsel’s “refusal to represent [him] in any capacity in the District Court” since he fled to Canada.
The threshold question presented in this case is whether we should entertain Sech-ler’s petition for mandamus relief regarding his criminal trial when he absconded during that trial and remains beyond the jurisdiction of the trial court. The Supreme Court has recognized that courts have the power to dismiss a fugitive’s criminal appeal. See Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970) (a fugitive’s escape “disentitles the defendant to call upon the resources of the Court for determination of his claims”). The so-called fugitive disen-titlement doctrine does not, however, automatically disqualify a criminal fugitive *862from maintaining a civil action in federal court. See Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (holding that a district court could not apply the doctrine to refuse a criminal fugitive’s answer in a related civil forfeiture case). In general, dismissal of a civil action under the doctrine is appropriate where there is a sufficient connection between the fugitive status and the civil action, and where the dismissal animates the concerns underlying the doctrine. See Barnett v. YMCA, Inc., 268 F.3d 614, 618 (8th Cir.2001).
In this case, dismissal is appropriate for several reasons. First, there is a direct connection between Sechler’s fugitive status and his mandamus petition. Sechler fled during his criminal trial and, consequently, the trial stopped, yet he is attempting to gain the means to continue to litigate via mandamus relief. Second, although entertaining Sechler’s petition may not be a direct affront to the dignity of this Court, it is an affront to the dignity of the District Court because Sechler is attempting to circumvent and flout the authority of that court, which has decided to halt proceedings until he returns to its jurisdiction. Cf. United States v. Awadalla, 357 F.3d 243, 246 (2d Cir.2004) (noting that the Degen Court’s rationale that a criminal defendant should not be sanctioned by one court for his affront to another has no application in criminal appeals). Finally, dismissal is not an excessively harsh sanction. See Degen, 517 U.S. at 829, 116 S.Ct. 1777; Maydak v. United States Dep’t of Educ., 150 Fed.Appx. 136, 138 (3d Cir. 2005). Regarding Sechler’s requests related to representation, the District Court and Sechler’s attorney have made clear that both his trial and representation by court-appointed counsel will resume once he returns to the court’s jurisdiction. As for his demand that this Court file an information request on his behalf, relief in that form is not available through a petition for a writ of mandamus under 28 U.S.C. § 1651. And, in any event, Sechler may make the requests himself to the appropriate agencies under the Freedom of Information Act, 5 U.S.C. § 552 et seq. (2006), and Pennsylvania’s Right-to-Know Law, 65 P.S. § 67.101, et seq. (2009). Accordingly, we will dismiss Sechler’s petition for a writ of mandamus.
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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/8477260/
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OPINION
FISCHER, District Judge.
Plaintiff Stephanie Kanter appeals from an order of the District Court granting the motion to dismiss of defendants The Equitable Life Assurance Society of the United States; AXA Equitable Life Insurance Company; AXA Financial, Inc.; John Doe; and ZYZ Company. We conclude that the District Court erroneously applied New Jersey’s applicable statute of limitations to bar plaintiffs suit. Accordingly, we will vacate and remand.
On December 22, 1982, Stephen Schwartz, a dentist, enrolled in an annuity program (“the annuity”) provided by defendants for American Dental Association group members. The annuity’s terms gave Dr. Schwartz the ability to withdraw the annuity’s accrued cash value, but precluded the sale or assignment of any interest or amount payable under the annuity. In addition, the annuity stated that “[n]o amount payable ... will in any way be subject to any claim against [the] payee.”
Dr. Schwartz married in 1985. Mrs. Schwartz was never made a beneficiary of the annuity, and, on July 21, 1992, she executed a signed waiver of her right to receive survivor benefits under the annuity-
In 1996, after almost eleven years of marriage, Dr. Schwartz bludgeoned his wife to death with a claw hammer and fire extinguisher. He pleaded guilty to aggra*864vated manslaughter on July 23, 1999, and received a twenty-year prison sentence.
In February 1997, prior to Dr. Schwartz’s guilty plea, Mrs. Schwartz’s Estate began notifying defendants that New Jersey’s “Slayer Act,” N.J. Stat. Ann. § 3B:7-1.1 et seq., might apply to the annuity. The Estate sent a letter to defendants containing an order prohibiting Dr. Schwartz from diminishing any of his assets without court permission. The letter also requested that defendants freeze all of Dr. Schwartz’s accounts. A similar letter and court order were sent in July 1999.
The court orders were eventually abrogated. Subsequently, Dr. Schwartz withdrew $93,750 from the annuity in December 1999.
Mrs. Schwartz’s Estate brought various actions against Dr. Schwartz, including, in a suit captioned Wasserman v. Schwartz, a novel claim for the
equitable distribution of ... marital assets that accumulated during the Schwartz’ ... marriage, [such as Dr.] Schwartz’ retirement and pension plan assets, because had he not terminated the[ ] marriage by slaying [his wife], and the marriage instead terminated by divorce, Mrs. Schwartz would have been entitled to an equitable distribution of their marital estate assets.
Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828, 830 (N.J.Super. Ct. Law Div.2001).
On June 29 and July 11, 2001, a bench trial occurred in the New Jersey Superior Court, Law Division, regarding the equitable distribution claim. Id. The trial was conducted “to identify and ascertain the value of all assets held by or for [Dr.] Schwartz’ benefit, including pension or retirement plan accounts; and to determine what portion should belong to the Schwartz’ marital estate, and what portion belonged] solely to [Dr.] Schwartz.” Id.
A certified public accountant with expertise in asset valuation and forensic accounting presented a report and testified on behalf of the Estate. Id. She
identified certain assets held by or for [Dr.] Schwartz’ benefit, their dates of acquisition; asset valuations as of the date of the marriage ...; asset valuations as of the date [of the homicide] ...; and the [then] current values of the assets.
In her report and testimony, [the accountant] further documented all the assets includible in the marital estate and their values, and concluded that the total value of all those assets includible in the marital estate [wa]s $929,726. That amount included marital estate assets [Dr.] Schwartz ha[d] spent since the day he killed his wife, such as ... [the] monies from [Dr.] Schwartz’ retirement accounts. Those marital estate assets also included $541,099 ... held in [Dr.] Schwartz’ name in his American Dental Association retirement plan, his IRA, and a Manulife annuity account.
Id.
The Wassennan court accepted the Estate’s novel claim for equitable distribution. Id. at 833-34. Using its equitable powers, the court determined that even though the Schwartz’s marriage had ended by homicide and not divorce, Mrs. Schwartz’s Estate was entitled to a share of the marital assets and those assets, like the annuity, held solely in Dr. Schwartz’s name. Id. at 831-34. Judgment for $681,338 was entered in the Estate’s favor on September 14, 2001. Id. at 839. The Estate was only able to collect approximately $390,000 of the award.
On February 13, 2007, plaintiff, a Florida resident and one of the Estate’s two beneficiaries, was assigned the Estate’s re*865maining legal claims. She filed in the New Jersey Superior Court, Law Division, this action against defendants on August 1, 2007. Relying on diversity of citizenship, defendants removed the case to the United States District Court for the District of New Jersey.
Plaintiff subsequently filed an amended complaint alleging four causes of action. In count one, she asserted negligence, claiming that defendants owed the Estate a duty of care after receiving notice of possible Slayer Act claims and that defendants breached that duty by permitting Dr. Schwartz to withdraw $93,750 from the annuity. Count two alleged that defendants violated New Jersey’s Slayer Act, specifically N.J. Stat. Ann. § 3B:7-7, by allowing Dr. Schwartz to remove money from the annuity. In count three, plaintiff contended that defendants, by permitting the withdrawal, engaged in an unconscionable commercial practice and, therefore, violated New Jersey’s Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2. Finally, count four alleged that defendants breached their fiduciary duty to the Estate by allowing the withdrawal.
Defendants filed a motion to dismiss arguing, among other things, that plaintiffs claims were barred by New Jersey’s six-year statute of limitations, N.J. Stat. Ann. § 2A:14-1. According to defendants, because Dr. Schwartz withdrew money from the annuity in December 1999 and plaintiff waited over eight years to file her complaint on August 1, 2007, her claims were time-barred. In addition, defendants asserted that even if New Jersey’s discovery rule applied, it could only toll the statute of limitations until June 29, 2001, the first day of the Wasserman trial. By then, defendants reasoned, the Estate would have to have known about Dr. Schwartz’s withdrawal, yet plaintiffs complaint was filed more than six years after the Wasserman trial began.
The District Court agreed with defendants that the statute of limitations barred plaintiffs suit. Any injury to the Estate, the Court believed, occurred prior to the Wasserman judgment, and the discovery rule delayed the accrual of plaintiffs causes of action until, at the latest, July 11, 2001, the final day of the Wasserman trial. By that date, the Estate would have read its own expert’s report and heard testimony that defendants had allowed Dr. Schwartz to withdraw money from the annuity. Because plaintiff filed her complaint more than six years after July 11, 2001, the District Court granted the defendants’ motion to dismiss.
Plaintiff appealed and argues that her complaint was timely filed. She contends, among other things, that she did not have the right to institute and maintain the Estate’s claims against defendants until after the September 14, 2001 judgment. We agree.
Our review of a “district court’s dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is plenary.” Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005). We must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to ... plaintiff[ ]•” Id- However, we “need not credit either ‘bald assertions’ or ‘legal conclusions’ in [the] complaint.” Id. (citation omitted).
The parties do not dispute that New Jersey’s relevant statute of limitations required that plaintiffs claims “be commenced within 6 years ... after the cause of any such action shall have accrued.” N.J. Stat. Ann. § 2A:14-1. The New Jersey Supreme Court has “identified the accrual of [a] cause of action as the date on which ‘the right to institute and maintain a suit’ first arose.” Rosenau v. City of New Brunswick, 51 N.J. 130, 238 A.2d 169, 172 *866(1968) (citation omitted). “That phrase refers to the ‘combination of facts or events which permits maintenance of a lawsuit; the time of occurrence of the last of these requisite facts is thereby made the critical point of [the] inquiry.’ ” Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 675 A.2d 1077, 1083-84 (1996) (citation omitted). A cause of action will therefore be said to have accrued only at the time all of its elements have occurred. See Rosenau, 238 A.2d at 172-74 (explaining that a cause of action “grounded on negligent injury or damage to person or property ... accrue[s] not when the negligence itself took place but when the consequential injury or damage occurred,” and finding that plaintiffs could institute an action many years after the negligent act, the improper manufacture of a water meter, because only when the meter broke was the plaintiffs’ property damaged); see also Holmin v. TRW, Inc., 330 N.J.Super. 30, 748 A.2d 1141, 1145 (N.J.Super.Ct.App.Div.2000) (the plaintiff’s cause of action accrued when he suffered damages from fraud, not when the fraudulent act occurred).
Our review of this case’s unique facts convinces us that plaintiffs claims against defendants did not accrue until September 14, 2001, the date of the Wasserman opinion and judgment. Plaintiff’s causes of action require the suffering of a loss or damages. See, e.g., Polzo v. County of Essex, 196 N.J. 569, 960 A.2d 375, 384 (2008) (actual damages are an element of negligence); Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 541 A.2d 1063, 1067 (N.J.1988) (an “ascertainable loss” is an essential element of a private cause of action for a violation of New Jersey’s Consumer Fraud Act); In re Estate of Lash, 169 N.J. 20, 776 A.2d 765, 770 (2001) (breach of fiduciary duty is a tort and that “[o]ne standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation” (emphasis supplied) (citation omitted)). Despite the District Court’s belief and defendants’ assertions to the contrary, we do not believe that Mrs. Schwartz’s Estate could claim to have been damaged prior to September 14, 2001.
At the time of the withdrawal in December 1999, the Estate had no legal interest in or right to the funds in the annuity. Dr. Schwartz enrolled in the annuity prior to his marriage and never made his wife a beneficiary. In addition, Mrs. Schwartz waived her right to receive survivor benefits under the annuity, and the annuity expressly stated that “[n]o amount payable ... will in any way be subject to any claim against [the] payee.”
On September 14, 2001, however, the Wasserman court provided the Estate with a $689,338 award based, in part, on funds held in the annuity at the time of Mrs. Schwartz’s death. Therefore, the Estate’s injury did not arise — i.e., the cause of action did not fully accrue — until September 14, 2001, the date of the Wasser-man opinion. Any suit filed prior to that date would have been premature.
Defendants and the District Court focus on the discovery rule and the date on which the Estate had knowledge of Dr. Schwartz’s withdrawal to conclude that plaintiffs cause of action accrued, at the latest, on July 11, 2001. This is not, however, a discovery rule case. New Jersey courts developed the discovery rule “[t]o prevent the sometimes harsh result of a mechanical application of the statute of limitations.” Martinez v. Cooper Hosp.Univ. Med. Ctr., 163 N.J. 45, 747 A.2d 266, 270 (2000). The rule “provides that ... a cause of action will be held not to accrue until the injured, party discovers, or by an exercise of reasonable diligence and intelligence should have discovered!,] that he may have a basis for an actionable claim.” Id. (emphasis supplied) (internal quotation *867marks and citation omitted). Unless a party has been injured, therefore, the rule has no application. See id. (discussing the requirements for satisfying the rule).
As explained, the Estate’s injury did not materialize until the September 14, 2001, Wasserman judgment. At the time of both the withdrawal and the Estate’s subsequent knowledge of it, whether June 29 or July 11, 2001, the Estate’s claims were not yet complete; only the possibility of injury existed. See Holmin, 748 A.2d at 1151 (explaining that “a cause of action accrues when a plaintiff has been injured or damaged ... [and that] [p]rior to that date, he or she is faced only with an anticipation of possible injury, which may or may not occur”). The Wasserman court, among other things, could have ruled in favor of Dr. Schwartz and denied equitable distribution or issued an award that did not include funds from the annuity. Because the Estate’s claims became complete only upon the September 14, 2001, Wasser-man judgment, the statute of limitations did not begin to run until that date.1
Accordingly, we conclude that the District Court erred in finding that New Jersey’s statute of limitations barred this suit. Plaintiffs causes of action did not accrue until September 14, 2001, and her complaint, docketed August 1, 2007, was timely filed within six years. The order of the District Court granting defendants’ motion to dismiss will be vacated, and the case remanded for further proceedings.2
. We are not holding, as our colleague's dissent opines, that plaintiff "discovered" a new legal theory on the date of the Was-serman decision. As we have stated, the discovery rule plays no role in this case. Instead, we hold that the cause of action became complete (and thus the statute of limitations began to run) when plaintiff obtained an enforceable legal interest in the annuity by virtue of the Wasserman ruling. We agree that plaintiff may have known prior to the judgment that the Estate could receive a legal interest in the annuity, should it be awarded an ownership interest by the Wasserman court. However, the Estate had no legal interest in the annuity until the September 14, 2001, decision.
. Because we find that the District Court erred in granting defendants' motion to dismiss, we need not address plaintiff's argument that the Court also erred by resolving facts not apparent from the complaint and viewing facts in favor of defendants.
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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/8477267/
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OPINION
AMBRO, Circuit Judge.
Kasim Bookman pled guilty to a single-count indictment charging him with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). The District Court sentenced Bookman to 75 months’ imprisonment. He challenges that sentence on two grounds: (1) the Court committed procedural error by applying a presumption of reasonableness to the United States Sentencing Guidelines when determining his sentence; and (2) the Court’s application of the 18 U.S.C. § 3553(a) sentencing factors was substantively unreasonable. We disagree and therefore affirm.
I.
On August 8, 2007, police officers were patrolling a high-crime area of Camden, New Jersey. While on patrol, the officers observed a disruptive crowd loitering at a street corner. They got out of their car and approached the crowd. One officer spotted Kasim Bookman placing his hands in the middle of his waistband, suggesting that he might be attempting to conceal a weapon. Bookman then began to flee. The officers ordered him to stop, but Bookman continued running. When he *880was finally apprehended, the officers discovered a fully loaded (and operable) Smith & Wesson .88-caliber handgun in his waistband.
A federal grand jury subsequently charged Bookman in a single-count indictment for unlawful possession of a firearm by a convicted felon. Shortly thereafter, he pled guilty. At Bookman’s sentencing hearing, the District Judge denied his motion for a downward departure, considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and (as already noted) sentenced Bookman to 75 months’ imprisonment. (The sentence also included three years of supervised release.) Seventy-five months in prison was within the advisory Guidelines range of 70-87 months. Bookman filed a timely notice of appeal.1
II.
In imposing a sentence, the District Court must complete a three-step process. First, the Court must “correctly calculate] the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Guidelines serve as “the starting point and the initial benchmark.” Id. From there, our “precedent instructs district courts to conduct a second step, which is to ‘formally rule on the motions of both parties and state on the record whether [they are] granting a departure and how that departure affects the Guidelines calculation ....’” United States v. Wise, 515 F.3d 207, 216 (3d Cir.2008) (citing United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006)).
At step three, “after giving both sides the chance to argue for the sentences they deem appropriate, the court must exercise its discretion by considering all of the § 3553(a) factors and determining the appropriate sentence to impose.” Id. at 216-17. Bookman’s challenges are both related to this third step: first, that the District Court committed procedural error by presuming that a within-Guidelines sentence was reasonable; and second, that it imposed a substantively unreasonable sentence when it applied the § 3553(a) sentencing factors.
III.
As an appellate court, we are aware of our limited role in the federal sentencing regime. Indeed, “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable.’ ” Gall, 552 U.S. at 46, 128 S.Ct. 586. “As an appellate court, our role is two-fold.” Wise, 515 F.3d at 217. First, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors.” Gall, 552 U.S. at 51, 128 S.Ct. 586.
Second, we “consider the substantive reasonableness of the sentence imposed. ...” Id. at 51, 128 S.Ct. 586. “For a sentence to be substantively reasonable, a district court must apply the § 3553(a) factors reasonably to the circumstances of the case.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir.2007). In this analysis,“[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
Turning first to Bookman’s procedural argument, we conclude that the Dis*881trict Judge did not presume that a within-Guidelines sentence was reasonable. See Gall, 552 U.S. at 50, 128 S.Ct. 586 (holding that a district judge “may not presume that the Guidelines range is reasonable”). In particular, we reject Bookman’s argument that certain statements by the Judge violated Nelson v. United States, — U.S. -, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009). In Nelson, the sentencing judge unambiguously presumed the reasonableness of the Guidelines, explaining to the defendant that “the Guidelines are considered presumptively reasonable.” Id. at 891 (emphasis added). Despite Bookman’s efforts to cherry-pick certain passages from the record to suggest reversible error, we reject his argument.
In this case, the record demonstrates that the Judge considered the Guidelines as merely advisory. She correctly stated, “I am to begin my analysis with the [Gjuideline range and ... give weight to the advisory [Gjuideline range of 70 to 87 months, and I will do that, but it will be one factor that I will consider....” App. 166 (emphasis added). The Judge added, “As the Supreme Court and the Third Circuit have stated, a within-[G]uidelines range sentence is more likely to be reasonable than one that lies outside the advisory guidelines range, and so I must consider the other factors that determine whether or not a sentence within the [Gjuideline range is supported.” Id. From there, the Judge considered each of the § 3553(a) factors and concluded that, given these factors in the context of this case, “a sentence within the [Gjuideline range is reasonable.” Id. at 167. Nowhere in the record is there any indication that she presumed the reasonableness of the Guidelines, as did the judge in Nelson.
Because the District Judge committed no procedural error, we turn now to the substantive reasonableness of Book-man’s sentence. He argues that the Judge misapplied the § 3553(a) sentencing factors and assigned insufficient weight to several mitigating factors, including his “motive for possessing the gun,” the “nuances of [hisj prior record,” and “the history and characteristics of the offender.” Appellant’s Brief 19-21. We reject this argument.
The record demonstrates that the Judge considered each of the § 3553(a) sentencing factors in imposing her sentence and clearly articulated the dangers of a firearm in the hands of Bookman, given his criminal history and the surrounding context of his offense. This is a reasonable conclusion, even in light of various mitigating factors offered by Bookman and his argument that the Judge gave too much weight to U.S.S.G. § 2K2.1.2 Although Bookman was only 22 years old when he committed the offense before us, he has been convicted multiple times for drug-related offenses (including the distribution of cocaine on school property), as well as aggravated assault with a firearm and providing false information to the police. In the current offense, Bookman was convicted of carrying a loaded firearm on the streets of Camden. Given Bookman’s criminal record, it was certainly reasonable for the District Judge to worry about Bookman’s “evolving progression of criminal conduct.” Id. at 167.
* * :[{ * i¡: *
In this context, we hold that Bookman’s sentence of 75 months was reasonable, and that the District Court did not abuse its discretion in imposing this within-Guidelines sentence. Hence we affirm.
. The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction over Bookman's challenge to his sentence under 18 U.S.C. § 3742(a) as well as 28 U.S.C. § 1291.
. U.S.S.G. § 2K2.1 is the Guideline governing the offense of felons in possession of firearms.
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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/8477271/
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Kenneth Goenaga appeals the District Court’s denial of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts.
Goenaga pled guilty to one count of conspiracy to distribute and possess with the intent to distribute heroin and cocaine base (known as “crack cocaine”), in violation of 21 U.S.C. § 841(a)(1). At sentencing, the District Court found Goenaga’s offense level to be 34, with a criminal history category of VI, yielding a Sentencing Guidelines range of 262 to 327 months of imprisonment. However, the offense contained a statutory maximum of 20 years, or 240 months.
Goenaga provided substantial assistance with the Government’s investigation, and the Government submitted a motion for a downward departure pursuant to U.S.S.G. § 5K1.1, recommending Goenaga receive a sentence of no more than 120 months. The District Court granted the Government’s motion and adopted a downward departure to offense level 26, providing for a range of 120 to 150 months. The District Court then sentenced Goenaga to 120 months of imprisonment, finding that this sentence satisfied the statutory factors set forth in 18 U.S.C. § 3553(a).
After Goenaga’s sentence was imposed, the Sentencing Commission enacted Amendment 706, which reduced the offense level for offenses involving crack cocaine by two levels. Goenaga submitted a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court calculated that his adjusted offense level *887would be 32, yielding a Guidelines range of 210 to 240 months’ imprisonment. Applying an equivalent § 5K1.1 downward departure yielded a range of 105-120 months. Goenaga argued that his sentence should be reduced to the bottom end of this range, 105 months, but the District Court declined to reduce Goenaga’s sentence below the original sentence of 120 months.
In explaining its decision, the District Court first noted that the 120-month sentence fell within the newly calculated Guidelines range. It further explained that the “offense conduct described at the sentencing hearing ... was particularly troubling.” Appendix (“App.” 3). The court noted that Goenaga was “intimately involved in trafficking heroin and cocaine” in two different states, that a “number of individuals trafficked heroin on [his] behalf,” and that “[s]everal victims overdosed and suffered serious injury after ingesting heroin attributed to [his] organization.” App. 6-7. “Pursuant to § lB1.10(b)(l)” and considering “the nature and seriousness of the offense” and “the danger defendant poses to the community,” the District Court concluded that Goenaga’s sentence did not warrant a reduction. App. 6.
Goenaga timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. §§ 3231 and 3582(c). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s legal interpretation of relevant statutes and Guidelines, and we review for abuse of discretion the District Court’s ultimate ruling on a motion to reduce a sentence pursuant to § 3582(c)(2). See United States v. Mateo, 560 F.3d 152, 154 & n. 2 (3d Cir. 2009).
Section 3582(c)(2) grants a sentencing court discretion to reduce the prison term of a defendant who “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. ...” 18 U.S.C. § 3582(c)(2). Such a reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. Relevant to this case, the Sentencing Commission has stated that in considering a § 3582(c)(2) motion, the sentencing court “shall consider the nature and seriousness of the danger to ... the community that may be posed by a reduction in the defendant’s term of imprisonment,” along with the sentencing factors set forth in 18 U.S.C. § 3553(a). U.S.S.G. § lB1.10(b), cmt. n. 1(b)(1) — (ii).
The District Court properly evaluated the seriousness of Goenaga’s offense and the potential risk to the community before determining that Goenaga’s sentence should not be reduced any further. See App. 6-7. Goenaga contends that every aspect of the Sentencing Guidelines must be treated as purely advisory in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny. However, we have held that Booker does not apply to a § 3582(c)(2) re-sentencing. United States v. Dillon, 572 F.3d 146, 148 (3d Cir.2009), cert. granted, — U.S. -, 130 S.Ct. 797, — L.Ed.2d - (2009). Unlike in Dillon, the District Court in this case did not deny Goenaga’s motion because it felt “bound by the guidelines range.” Id. Rather, the District Court exercised its discretion and determined that Goenaga’s sentence appropriately accomplished the goals of sentencing. The District Court did not misapply the law or abuse its discretion in denying Goenaga’s motion for a reduction in sentence.
*888III
For the foregoing reasons, we will affirm the judgment of the District Court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477277/
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OPINION
AMBRO, Circuit Judge.
Victoria Beeks appeals from the District Court’s order affirming the determination of the Administrative Law Judge (“ALJ”) *896denying her claim for Social Security benefits.1 For the reasons that follow, we vacate the District Court’s order affirming the ALJ’s decision and remand the case with instructions to return it to the Commissioner for further proceedings consistent with this opinion.
Because we write solely for the parties, we do not recite the facts giving rise to this appeal.2 We exercise plenary review over legal issues and review the ALJ’s factual findings to determine whether they are supported by substantial evidence. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir.2005). “Substantial evidence has been defined as more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.2003) (internal quotation marks and citations omitted).
To determine disability, the ALJ uses a five-step sequential evaluation process. 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). If a finding of disability or non-disability is made at any point in the sequential analysis, the ALJ does not review the claim further. 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ considers whether the claimant is engaged in substantial gainful activity (“SGA”). Id. § 404.1520(a). If he or she is so engaged, the claimant is not disabled regardless of his or her medical condition. Id. § 404.1520(b). If the claimant is not engaged in substantial gainful activity, step two requires the ALJ to consider whether an impairment or combination of impairments exists that significantly limits the claimant’s physical or mental ability to do basic work activities. Id. § 404.1520(c). If the claimant’s condition is deemed severe, the analysis continues to step three, in which the ALJ determines whether the claimant’s impairments meet all the specific medical criteria of one of the impairments listed in an appendix to the regulations, or, taken as a whole, are medically equal to one of them. Id. § 404.1520(a)(4)(iii). If so, he or she is found disabled and entitled to benefits; if not, the ALJ moves on to step four. Id. § 404.1520(d), (e). There, the ALJ assesses the claimant’s “residual functional capacity.” Id. § 404.1520(a)(4)(iv). If the claimant is deemed capable of doing his or her “past relevant work,” the ALJ will find that he or she is not disabled. Id. If the claimant cannot perform past relevant work, then the ALJ proceeds to the final step, step five, to determine whether there is other work in the national economy that the claimant can perform. Id. § 404.1520(a)(4)(v).
Our problem at the outset is that we cannot determine the basis for the ALJ’s ruling at step one. Substantial work “involves doing significant physical or mental activities,” and “gainful work” is done “for pay or profit.” Id. § 404.1572. Under the regulations, earnings derived from the work activity are generally the primary consideration in evaluating the work for substantial gainful activity purposes.3 See *897id. § 404.1574(a)(1) (“Generally, if you worked for substantial earnings, we will find that you are able to do substantial gainful activity. However, the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.”). If a claimant’s earnings exceed guidelines set out in the regulation, a presumption arises that the claimant is engaged in substantial gainful activity. Work may be “substantial” even if it is done on a “part-time basis.” Id. § 404.1572(a). However, a claimant may rebut the presumption by showing that his or her work is done under special conditions. See id. § 416.973(c) (“If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity.”) (listing examples of special conditions).
Throughout the alleged period of disability, Beeks was employed part-time (20 hours per week) as a school aide. She was laid off in August 2006, about a month prior to the administrative hearing, due to funding cutbacks by the city. A.R. 288. At the time of her layoff, she was earning $10.50 per hour. Prior to 2006, her annual earnings were as follows: $7,990 in 2002, $8,956.50 in 2003, $7,145.25 in 2004, and $7,883.88 in 2005. A.R. 56.
At step one, the ALJ found that Beeks “was working during most of the time she alleged disability,” earning $10.50 per hour, 20 hours per week. A.R. 20. While Beeks claimed she was afforded special accommodations at work, the ALJ found that those accommodations consisted merely of co-workers occasionally helping her, and this was not a formal accommodation. The ALJ concluded that, as compared to the other employees in her position, Beeks worked the same number of hours, was expected to do the same work, and was paid the same amount. Beeks’s recent layoff resulted from funding cuts, not her disability, and the ALJ noted that Beeks was collecting unemployment, for which she must certify she is ready, willing, and able to work. The ALJ concluded that Beeks’s employment “equated to substantial gainful activity,”4 and that “the only reason she [wa]s not working more hours is that her job does not allow for any more, not for any other reason.” A.R. 19-20.
In this analysis, however, the ALJ failed to consider (or mention) that Beeks’s earnings as a school aide after the alleged onset of her disability, except in 2006, were less than the average monthly allowance for presumed substantial activity. To illustrate, dividing Beeks’s 2004 earnings by the twelve months in which they were earned, she earned an average of $595.44 per month in 2004, below the substantial gainful activity earnings guideline for 2004 of $810. See http://www.ssa.gov/ OACT/COLA/sga.html. The same holds true for 2002 ($665.83, below the $780 threshold), 2003 ($746.38, below the $800 threshold), and 2005 ($656.99, below the $830 threshold). For these years, Beeks’s employment is not presumptively substantial activity. Because the ALJ failed to recognize this issue and consider it in his step one analysis, we must vacate and remand.
We note further that the ALJ continued to steps two through four without stating whether he was proceeding in the alternative or proceeding past step one only as to the period in which Beeks was unemployed *898(after August 2006). While we could reconcile the ALJ’s analysis by concluding that steps two through four analyzed whether Beeks was disabled only during the period she was unemployed, this would be guesswork on our part. Moreover, at step four “past relevant work” must also be substantial gainful activity. 20 C.F.R. § 404.1560(b)(1). The ALJ concluded that Beeks had the residual functional capacity to perform light work and could perform her past relevant work as a school aide. The ALJ’s reconsideration of step one on remand may affect whether Beeks’s work as a school aide constitutes “past relevant work.”
Therefore, we vacate and remand for further elaboration of the step one analysis, particularly as to whether Beeks’s work as a school aide constituted SGA throughout the entire alleged period of disability.
. The ALJ’s decision became the Commissioner's final decision on July 27, 2007, when the Appeals Council denied Beeks's request for review of the ALJ’s decision. See 20 C.F.R. §§ 404.981, 416.1481.
. The District Court had jurisdiction under 42 U.S.C. § 405(g), and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
.The ALJ will consider "other information in addition to ... earnings if there is evidence indicating that [the claimant] may be engaging in substantial gainful activity or that [the claimant is] in a position to control when earnings are paid ... or the amount of wages paid....” 20 C.F.R. § 404.1574(b)(3)(ii).
. A heading in the AU's decision states that Beeks “has not engaged in substantial gainful activity since October 1, 2002, to the alleged onset date.” A.R. 18. We agree with the District Court that the ALJ's inclusion of the word "not” in this heading was a typographical error, given the analysis the ALJ conducted at step one.
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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/8477279/
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OPINION
BARRY, Circuit Judge.
Ezeadigo Chinedu Oduche-Nwakaihe (“Oduche”) petitions for review of (1) the June 4, 2008 order of the Board of Immigration Appeals (the “BIA”), vacating the Immigration Judge’s (“IJ”) order granting deferral of removal pursuant to the Convention Against Torture (“CAT”), and (2) the BIA’s October 16, 2008 order denying his motion to reopen his removal proceedings to permit him to submit evidence of the State Department’s 2007 Country Reports for Nigeria (“2007 Country Reports”). We will deny the petitions for review.
BACKGROUND1
Oduche, a native of Nigeria, was admitted to the United States on March 27, 2003, with the status of a lawful permanent resident alien. On June 15, 2007, he pled guilty to rape in the fourth degree in Kent County, Delaware.2 On September 11, 2007, the U.S. Department of Homeland Security commenced removal proceedings against him by filing a Notice to Appear. At a hearing on December 17, 2007, the IJ found that Oduche’s “conviction for rape in the fourth in Delaware is rape [sic] offense requiring that you lose your permanent residency in the United States and requires your deportation.” (CAR at 173.) On January 7, 2008, Oduche filed an application for asylum, withholding of removal, and protection under CAT.3 (Id. at 262, 266.)
On January 30, 2008, the IJ ordered that Oduche be removed to Nigeria;4 however, although Oduche’s criminal conviction for rape in the fourth degree rendered him ineligible for asylum and withholding of removal, the IJ granted him deferral of removal under Article III of CAT. He explained that Oduche was credible and that his fear of religious persecution was credible, but “because respondent is statutorily precluded from establishing past persecution ... because of his aggravated felony conviction, the Court is not permitted to consider that aspect of the claim.” {Id. at 147.) Thus, the “primary thrust of respondent’s claim ... would be his immediate arrest and detention and jailing in Nigeria upon his arrival as a criminal deportee.” {Id.) The IJ made “an administrative finding of fact” that this practice, carried out pursuant to a directive known as “Decree 33,” was still in effect. (Id. at 150.) He explained that experts in other cases relating to Nigeria had attested to the force of Decree 33 and, as a result, took “administrative notice” that Oduche would be detained upon returning to Nigeria. {Id. at 148,153.)
The IJ then turned to Oduehe’s argument that, once in prison, he would be tortured. Acknowledging that substand*900ard prison conditions do not, generally, constitute torture within the meaning of 8 C.F.R. § 1208.18(a) and that immigration courts should avoid “stringing together a series of suppositions” to show that torture is the likely result, the IJ nonetheless concluded that the relevant Country Reports for Nigeria revealed a “high incidence rate of impunity of police officers using excessive and deadly force on persons and killing persons in custody.” (Id. at 149, 151.) Thus, the IJ concluded that it was more likely than not that, once he was inevitably detained, Oduche would be tortured, and deferred his removal under CAT.5
The government appealed. On June 4, 2008, the BIA vacated the IJ’s decision granting deferral of removal. The BIA did not agree that Oduche would be detained under Decree 33, and rejected the notion that “the continued application or continued enforcement of Decree 33 in Nigeria is a matter that is subject to administrative notice.” (Id. at 2-3.) Oduche had urged the BIA to take notice of the recent 2007 Country Reports, detailing the horrors associated with the Nigerian prison system, but the BIA concluded that despite the “evidence of harsh and life-threatening prison conditions in Nigeria,” Oduche’s case was based on speculation rather than “adequate evidence” that he “more likely than not ” would be tortured upon his return. (Id. at 3.)
On August 29, 2008, Oduche filed a motion to reopen with the BIA, arguing that the BIA had failed to take notice of the 2007 Country Reports, which he claimed would have validated his fears of torture within prison.6 On October 16, 2008, the BIA denied the motion to reopen, finding that the 2007 Country Reports did not resolve the “chain of assumptions that were previously determined to have been made,” including whether he would even be detained in Nigeria, much less be tortured during that detention. (Pet.Br., Ex. B.) It also found that Oduche failed to establish “that the result in this case would be likely to change if the proceedings were reopened.” (Id.)
Pursuant to our order of October 24, 2008, Oduche’s two petitions have been consolidated. In his first petition, now his first claim, Oduche seeks review of the BIA’s June 4, 2008 order directing that he be removed to Nigeria and vacating the IJ’s deferral of removal. His second claim seeks review of the BIA’s October 16, 2008 order denying his motion to reopen the proceedings to permit him to place into evidence the 2007 Country Reports. As that order makes clear, however, the BIA had considered the contentions of the 2007 Reports. (Pet.Br., Exh. B.)
JURISDICTION
Although 8 U.S.C. § 1252(a)(2)(C) limits the federal courts’ jurisdiction to review final decisions ordering the removal of aliens who commit aggravated felonies, § 1252(a)(2)(D) makes clear that courts retain jurisdiction to review “constitutional claims or questions of law raised upon a petition for review....” See Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir.2006); Singh v. Gonzales, 432 F.3d 533, 537 (3d Cir.2006). Oduche explains the various issues at hand, which include whether the IJ erred in taking administrative notice of *901Decree 33, whether the BIA misapplied the CAT standard, whether the BIA adequately explained its decision to vacate the IJ’s deferral of removal, and whether the BIA impermissibly engaged in de novo fact finding. The thrust of the government’s argument is that because these claims — in the government’s view — are “without merit ... they do not present meritorious legal or constitutional claims” and, thus, cannot be reviewed. (Gov’t Br. at 27.) We are satisfied that Oduche has raised at least some questions of law, and that we have jurisdiction to proceed.7
DISCUSSION
Although Oduche raises various issues in this appeal, he ultimately seeks deferral of removal on the ground that he rvill more likely than not be tortured once in prison in Nigeria. We will assume arguendo that Oduche would be imprisoned upon his return to Nigeria and focus on his torture claim.
We review the BIA’s decisions to vacate the IJ’s deferral ruling and refusal to reopen the case under the substantial evidence standard and will uphold the BIA’s determinations “unless the evidence not only supports a contrary conclusion, but compels it.” Sheriff v. Att’y Gen., 587 F.3d 584, 588-89 (3d Cir.2009) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001)). To the extent we consider questions of law and the application of law to facts, our review is de novo. 8 U.S.C. § 1252(a)(2)(D); Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.2008).
In Pierre v. Attorney General of the United States, we set out the purposes of CAT and the Department of Justice’s role in “promulgat[ing] regulations setting forth the procedures by which individuals could seek relief under the CAT.” 528 F.3d 180, 186 (3d Cir.2008) (en banc). Those regulations make clear that deferral of removal is mandatory where the petitioner demonstrates that it is more likely than not, 8 C.F.R. § 208.17(a) (emphasis added), that he will be subjected to an act “specifically intended to inflict severe physical or mental pain or suffering,” 8 C.F.R. § 208.18(a)(5). As we explained:
[F]or an act to constitute torture, there must be a showing that the actor had the intent to commit the act as well as the intent to achieve the consequences of the act. Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result.
528 F.3d at 189 (internal citation and quotations omitted).
We have applied this standard in the context of detention facilities on numerous occasions in the past. In Auguste v. Ridge, for example, where the petitioner complained of the prison conditions in Haiti, we found that the BIA did not err in its finding that Haitian officials lacked the specific intent to torture him because the deplorable conditions resulted from “Haiti’s economic and social ills” rather than an “intent to inflict severe pain and suffering on detainees.” 395 F.3d 123, 153 (3d Cir. 2005). In Pierre, we affirmed the BIA’s denial of the petition for CAT relief where petitioner claimed that his medical prob*902lems would be neglected by prison officials, resulting in his death. 528 F.3d at 182-83. We held that the petitioner was unable to show that “by imprisoning him, the Haitian authorities have the specific intent to torture him.” Id. at 183. In In Re J-E-, the petitioner testified that upon his return to Haiti, he would be jailed and tortured. In support of his claim, he submitted Country Reports explaining that police mistreatment by means of beatings with sticks and belts, burning with cigarettes, choking, and severe boxing of the ears, was “pervasive in all parts of the country.” 23 I. & N. Dec. 291, 301 (2002). Finding that the record contained only “isolated instances of mistreatment ... that rise to the level of torture,” the BIA concluded that the evidence was “insufficient to establish that it is more likely than not” that the petitioner would be tortured if removed to Haiti. Id. at 301-03. In particular, the BIA held that “[slpecific grounds must exist that indicate the individual would be personally at risk.” Id. at 303.
Oduche ai’gues that there is evidence of routine, widespread prisoner abuse in Nigeria and, thus, that his case is different from Auguste and Pierre, where the harm inflicted on the imprisoned was unintentional and' the result of economic woes. He cites the 2007 Country Reports, which state that officers regularly beat detainees and convicted prisoners. The Country Reports also note that when a United Nations Special Rapporteur on Torture was invited by the Nigerian government “to assess the situation ..., the rapporteur reported that torture was endemic in law enforcement operations, including police custody ... [and that] the methods of torture included flogging with whips; beating with batons and machetes; shooting a suspect in the foot ... suspension from the ceiling; and denying food, water, and medical treatment.” (Pet.Br., Ex. D.)
The acts cited in the 2007 Country Reports are certainly abhorrent. As evidence that he will more likely than not fall victim to these abuses, however, Oduche merely points to the rapporteur’s judgment that they are “endemic” to Nigerian prisons and findings that they “had become routine.” (Pet. 08-2736 Br. at 29.) In its order vacating the deferral of removal, the BIA found that Oduche’s case was “based on a chain of assumptions and a fear of what might happen, rather than adequate evidence that meets his burden of demonstrating that it is more likely than not that he will be subjected to torture .... ” (CAR at 3.) In its order denying Oduche’s motion to reopen, the BIA explained that had it considered the 2007 Country Reports, but that the Reports did not even “address the likelihood that the respondent would be arrested and detained upon his arrival in Nigeria.” (Pet. Br., Ex. B.) The BIA added that “such report does not sufficiently meet the respondent’s burden of demonstrating that it is more likely than not that he will be subjected to torture ... if he is returned to Nigeria.” (Id.)
The IJ conceded that this was a close case, finding, on the one hand, that “we have no evidence of how respondent would be treated ... once he is detained,” but ruling, on the other hand, that Oduche met his burden because of the “high incidence rate of impunity” of officials toward those in custody. (CAR at 149, 151-53.) However, a petitioner must show that the prospective torturer “will have the purpose of inflicting severe pain or suffering by placing him in detention upon his removal from the United States.” Pierre, 528 F.3d at 190. In light of the lack of evidence in this x’ecord addressing whether it is more likely than not that Oduche would fall victim to intentionally inflicted torture while incarcerated in a Nigerian prison, we can*903not say that we are compelled to reach a conclusion contrary to that reached by the BIA.
CONCLUSION
The petitions for review will be denied.
. The record citations in this order refer to the Certified Administrative Record ("CAR").
. Oduche was having a sexual relationship with his eighteen-year-old girlfriend when, at some point, he became sexually involved with her mother as well. This triangle was unsustainable, and the fourth degree rape charge for penetration without consent resulted from the mother's allegations about Oduche’s allegedly nonconsensual activities with her daughter. As the government's brief details, this was not Oduche’s first encounter with Delaware's criminal justice system.
. He cited his adherence to Christian principles, which would result in his suffering harm in Nigeria; his political opinions; and his membership in a particular social group. (CAR at 266.)
. Oduche was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A).
. See 8 C.F.R. § 1208.17 ("An alien who: has been ordered removed; has been found under § 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) or (d)(3), shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.”).
. The 2007 Country Reports were not issued until March 6, 2008.
. For example, with respect to Oduche's contention that the BIA impermissibly applied the CAT standard for deferral, which the government characterizes as “at odds with the Attorney General's framework for analyzing CAT claims,” Gov't Br. at 27, we have jurisdiction to the extent that this issue "present[s] questions of law, or of the application of law to undisputed fact.” Singh, 432 F.3d at 537-38; Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005).
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OPINION
BARRY, Circuit Judge.
Demetrius Ford appeals his designation as an armed career criminal, arguing that his conviction for the Pennsylvania crime of escape from official detention does not constitute a violent felony. We will vacate Ford’s sentence and remand to the District Court for re-sentencing.
*904I.
Ford pled guilty to possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court determined that it was appropriate to apply the Armed Career Criminal Act (“ACCA”), which provides for a minimum sentence of fifteen years imprisonment for defendants convicted of violating § 922(g) who have three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). Ford did not dispute that he had two past convictions for serious drug offenses, but disputed that his 1994 conviction (by guilty plea) for the Pennsylvania crime of escape from official detention constituted a violent felony. The District Court imposed the mandatory minimum sentence of fifteen years imprisonment, as well as five years of supervised release. Ford timely appealed.1
II.
“Violent felony” is defined as follows:
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). The parties agree that only the second clause, commonly described as the residual clause, is at issue here. The District Court, in concluding that Ford’s escape conviction was a violent felony, relied on our decision in United States v. Luster, 305 F.3d 199 (3d Cir.2002). In Luster, we held that the Pennsylvania crime of escape constitutes a “crime of violence” under the Sentencing Guidelines2 because “every escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so.” 305 F.3d at 202 (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir.1994)).
The Supreme Court’s recent decision in Chambers v. United States, — U.S. -, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009),3 however, “is in conflict with our previous view that any crime involving a refusal to submit to lawful state detention does present [a serious potential risk of physical injury to another].” United States v. Hopkins, 577 F.3d 507, 512 (3d Cir.2009). In Chambers, the Supreme Court examined the Illinois escape statute, which criminalized a variety of conduct. It was clear from the defendant’s charging document that he had pled guilty to knowingly failing to report for periodic imprisonment. The Court concluded that failure to report is a “separate crime” from escape. Chambers, 129 S.Ct. at 691. Because failure to report does not involve conduct that presents a *905serious potential risk of physical injury to another and is “a far cry from the purposeful, violent, and aggressive conduct” exemplified by the residual clause’s enumerated offenses, the Court held that it is not a violent felony under ACCA. Id. at 691-92 (internal quotations and citation omitted).
Chambers does not address whether escape from custody crimes are violent felonies, except by way of distinguishing such crimes from failure to report crimes. The Supreme Court noted that “the behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.” Chambers, 129 S.Ct. at 691. The Court framed the question as “whether such an offender is significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.’ ” Id. at 692. It also considered data prepared by the Sentencing Commission which indicated that none of the 160 failure to report/return cases in 2006 and 2007 involved violence (although five of these offenders were armed). Id. at 692-93.'4
III.
Before we can determine whether an offense qualifies as a violent felony, we must identify the crime of which the defendant was convicted. Hopkins, 577 F.3d at 510 (noting that in residual clause cases, we must “pay attention to the way that the state statutory scheme identifies the relevant crime”). The Pennsylvania escape statute provides:
A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
18 Pa. Cons.Stat. § 5121(a) (emphasis added).5 Thus, the same statute criminalizes both “escape from custody” and “failure to return to custody.” It is clear, after Chambers, that the latter is not a violent felony. See Chambers, 129 S.Ct. at 691 (characterizing “failing to report to a penal institution,” “failing to report for periodic imprisonment,” “failing to return from furlough,” and “failing to return from work and day release” all as “failure to report” crimes distinct from escape from custody crimes). Therefore, it is critical to determine which of the two offenses Ford pled guilty to committing. It is not possible to do so based on the present record.
To determine whether Ford pled guilty to the crime of unlawfully removing himself from official detention, we consider whether Ford “necessarily admitted” the elements of this offense when he pled guilty. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Courts may consider only “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id.; see also United States v. Siegel, 477 *906F.3d 87, 92 (3d Cir.2007) (“Commonly, the best way to resolve the question raised by a conviction under a statute phrased in the disjunctive ... will be to look to the charging instrument or to the plea colloquy”).
The information charging Ford with escape is inconclusive because it tracked the statutory language, including both removing oneself from detention and failing to return to detention. Moreover, the arrest warrant affidavit and criminal complaint, both of which were submitted to the District Court at sentencing, are not documents that may be considered for purposes of the ACCA analysis because Ford did not confirm the facts contained in these documents or plead guilty pursuant to them. See Shepard, 544 U.S. at 25-26, 125 S.Ct. 1254 (noting that a court’s consideration of police reports in classifying an offense implicates the Sixth and Fourteenth Amendments); Evanson v. Att’y Gen., 550 F.3d 284, 293 n. 7 (3d Cir.2008) (a criminal complaint that has been superseded by an information is not the relevant charging document to be considered under the modified categorical approach).
The government has asked us to supplement the record with the transcript of the plea hearing at which Ford pled guilty to the Pennsylvania escape statute and consider, in the first instance, the colloquy between Ford and the judge confirming the factual basis for the plea, a request that is hotly disputed. We decline to do so. We will, however, remand to the District Court for it to decide whether to permit the government to now support its contention that Ford qualifies as an armed career criminal with the colloquy it chose not to submit at sentencing. See United States v. Dickler, 64 F.3d 818, 831-32 (3d Cir.1995). On remand, the government must present a “persuasive reason why fairness ... requires” that the District Court consider the colloquy. Id. at 832. The District Court should exercise its “informed discretion” in determining whether such consideration is appropriate. Id. at 831; cf. United States v. Johnson, 587 F.3d 203, 213 (3d Cir.2009) (directing the district court to consider the plea colloquy transcript on remand, based on the “particular circumstances” of that case, where the government had been unable to present the colloquy at sentencing and it had only later become available for review).
If the District Court decides that it is appropriate to consider the colloquy, it should then determine whether the colloquy establishes that Ford pled guilty to escape from custody or failure to return to custody, and whether that offense is a violent felony, by employing the analysis required by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and Chambers.6. See Hopkins, 577 *907F.3d at 515 (holding that a misdemeanor escape conviction under the Pennsylvania statute is not a crime of violence).
IY.
Accordingly, we will vacate Ford’s sentence and remand to the District Court for re-sentencing.7
. "[T]he definition of a violent felony under the ACCA is sufficiently similar to the definition of a crime of violence under the Sentencing Guidelines that authority interpreting one is generally applied to the other....” United States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009).
.We stayed Ford's appeal pending the Supreme Court’s decision in Chambers.
. In contrast, of the 64 "leaving secure custody" cases, 15.6% involved force, 31.3% involved a dangerous weapon, and 10.9% resulted in injury. Chambers, 129 S.Ct. at App. A.
. "Official detention” is defined as: "arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail." 18 Pa. Cons.Stat. § 5121(e).
. Neither case had been decided at the time of Ford's sentencing. We have discussed Chambers above. In Begay, the Supreme Court held that courts, in determining whether the offense at issue involves conduct that presents a serious potential risk of physical injury to another, must consider if it is "roughly similar, in kind as well as in degree of risk posed, to the examples [burglary, arson, extortion, and use of explosives] themselves.” 128 S.Ct. at 1585. The listed offenses are similar in that they "all typically involve purposeful, violent, and aggressive conduct.” Id. at 1586 (internal quotations and citation omitted). To determine whether a particular offense qualifies as a violent felony, courts must "consider the offense generically” and "examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Id. at 1584; see also James v. United States, 550 U.S. 192, 202, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (noting that courts must consider "the ordinary case” and not "the specific conduct of this particular offender”). "[Shepard's ] rule is not meant to circumvent the categorical approach by allowing courts to determine whether the actual conduct of the individual defendant constituted a pur*907poseful, violent and aggressive act.” Johnson, 587 F.3d at 208 (quoting United States v. Smith, 544 F.3d 781, 786 (7th Cir.2008)).
. We believe it appropriate to address certain issues Ford has raised so that they need not distract the parties at re-sentencing. First, Ford’s argument that escape cannot be a violent felony because it is not a crime against property is without merit. Johnson, 587 F.3d at 211 n. 9 (“Noting in Begay unequivocally establishes that the residual clause is restricted to crimes against property, and no case law interpreting that provision post-Begay suggests as much."). Second, Ford states that he "continues to object under the Fifth and Sixth Amendments to any statutory sentencing enhancements based on prior convictions that were not charged in the indictment, or admitted, or proven to the jury beyond a reasonable doubt.” (Appellant's Op. Br. at 14.) We have repeatedly rejected this argument. See, e.g., United States v. Coleman, 451 F.3d 154, 159 (3d Cir.2006) (citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). Finally, Ford argues that 18 U.S.C. § 922(g) is unconstitutional, but acknowledges that this issue is controlled by our decision in United States v. Singletary, 268 F.3d 196 (3d Cir.2001), and raises it only for purposes of further appellate review.
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OPINION
BARRY, Circuit Judge.
Appellant Gary Haile argues that the District Court erred by improperly delegating authority to the probation officer to decide whether or not Haile should receive a mental health evaluation and treatment as a condition of supervised release. Because the Court was clear that it would make the ultimate decision as to whether a mental health evaluation and treatment would be necessary, we will affirm.
BACKGROUND
Haile pled guilty to a one-count information charging him with Hobbs Act robbery, 18 U.S.C. §§ 1951-52. At his sentencing hearing on January 14, 2009, the District Court imposed a sentence of 168 months’ imprisonment, as well as a three-year term of supervised release. (App. at 39-40.) This appeal challenges the following statement of the Court made while imposing conditions of supervised release:
At the direction of your probation officer, you shall undergo a mental health evaluation and follow the recommendations of that evaluation; including participation in anger management or cognitive therapy. Now, there’s a new case that says that probation officers are not to be charged in essence with that responsibility. It’s a non-precedential case. I’m not sure what that means. I want the record to reflect that the judge will personally supervise the need for that mental health evaluation and any cognitive therapy imposed.”
(Id. at 41.) Haile did not object at sentencing to this statement or to any of the conditions of supervised release. The amended judgment1 issued on February 11, 2009 included a requirement that “Defendant shall undergo a mental health evaluation and follow the recommendations of the evaluation, including participation in anger management or cognitive behavioral therapy.” (Id. at 53.)
Haile appealed. He argues that “the District Court improperly delegated judicial authority to the probation officer.” (Appellant’s Br. at 3.) He “seeks a remand with directions to vacate the mental health condition.” (Id.)
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. The parties agree that our review is for plain error. United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir. 2007); United States v. Warren, 186 F.3d 358, 362 (3d Cir.1999).
DISCUSSION
Not surprisingly, the parties offer different interpretations of the challenged statement of the District Court. On the one hand, Haile argues that the Court delegated the decision about whether he should *909receive a mental health evaluation and treatment; on the other hand, the government insists that the Court was clear in its instruction that Haile “was required to undergo a mental health evaluation and treatment.” (Appellee’s Br. at 10.)
In United, States v. Pruden, we labored to strike the appropriate balance between two competing imperatives: namely, the “most important limitation ... that a probation officer may not decide the nature or extent of the punishment imposed upon a probationer” and the reality that “courts cannot be expected to map out every detail of a defendant’s supervised release.” 398 F.3d 241, 250 (3d Cir.2005). To achieve this balance, we adopted the following standard, which we recently reaffirmed in United States v. Heckman, 592 F.3d 400, 409-10 (3d Cir.2010):
If [the defendant] is required to participate in a mental health intervention only if directed to do so by his probation officer, then this special condition constitutes an impermissible delegation of judicial authority to the probation officer. On the other hand, if the District Court was intending nothing more than to delegate to the probation officer the details with respect to the selection and schedule of the program, such delegation was proper.
Pruden, 398 F.3d at 250 (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir.2001)).
It would be wrong to characterize the District Court’s statement as requiring Haile to participate in a mental health evaluation and subsequent treatment only if the Probation Office determined it was necessary. In stating that it would “supervise the need for it,” the Court made clear that it retained control over the decision. App. at 41; see Heckman, 592 F.3d at 410-11. Moreover, the language of the judgment order gives no discretion to the Probation Office, as it unequivocally states that “the defendant shall undergo a mental health evaluation and follow the recommendations of the evaluation.”2 (App. at 53.)
Thus, because the Court’s oral and written instructions demonstrate that it retained authority over the need for an evaluation and treatment, it did not commit error, much less plain error, in imposing the special condition of supervised release at issue in this appeal. See Heckman, 592 F.3d at 410-11 (finding permissible delegation where “[pjarticipation in the mental health treatment program itself is mandatory, and only the details are to be set by the Probation Office”).
CONCLUSION
The judgment of sentence will be affirmed.
. The judgment had been amended to correct a clerical error. (App. at 50.)
. Our decision in Heckman is instructive. There, the district court stated: "The defendant shall participate in a mental health program for evaluation and/or treatment as directed by the United States Probation Office. The defendant shall remain in treatment until satisfactorily discharged and with the approval of the United States Probation Office." 592 F.3d at 409. We found that this was not an improper delegation because the second sentence — instructing that Heckman “shall remain in treatment ...” — cleared up any ambiguity caused by the sentence that preceded it and "naturally read as requiring mandatory treatment and thus limiting the Probation Office’s discretion.” Id. at 410.
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OPINION
AMBRO, Circuit Judge.
Helena Barinova brought an action against ING Financial Services (“ING”) and ReliaStar Life Insurance (“ReliaStar”) under the Employee Retirement Income Security Act (“ERISA”).1 See 29 U.S.C. § 1132(a)(1)(B). She alleged that ReliaS-tar improperly denied her claim for long-term disability benefits. The District Court granted the defendants’ motion for summary judgement. We affirm.
I.
As part of its employee welfare plan, Croda, Inc. (“Croda”) secured a group long-term disability insurance policy (the “Policy”) from ReliaStar. As the insurance carrier, ReliaStar both funds the Policy and adjudicates related claims. Importantly, in this role it has “final discretionary authority to determine all questions of eligibility and status and to interpret and construe the terms of this policy[ ] of insurance.” App. 585.
Under the Policy, employees who become disabled are eligible for monthly payments, subject to certain requirements. Claimants must “be insured on the date [they] become disabled” — and, to continue to qualify as “insured” before then, they must remain “actively at work.” App. 578. As defined by the Policy, a claimant is “actively at work” when she is “physically present at ... her customary place of employment with the intent and ability of working the scheduled hours and doing the normal duties of ... her job on that day.” App. 582. Policy coverage ends when the employee is “no longer actively at work for the Policyholder.” App. 577. The only relevant exception to this “actively at work” requirement is for employees on leave under the Family and Medical Leave Act (“FMLA”).2
Finally, eligibility under the Policy is limited to disabled employees who are receiving “regular and appropriate care.” App. 578. For care to qualify as “regular and appropriate,” the employee must “personally visit a doctor as often as is medically required,” as well as “receiv[e] care which conforms with generally accepted medical standards ... and is consistent *912with the stated severity of [the employee’s] medical condition.” App. 583.
II.
Barinova was initially hired by Croda as a research scientist in March 1992. By 2004, she worked as a research and development manager. On May 4, 2004, Croda placed Barinova on administrative leave for “alleged insubordination and disregard of company policy.” App. 106. She remained on leave until she was terminated.
On May 17, 2004, Barinova visited a psychiatrist. During this visit, the psychiatrist completed an FMLA application for Barinova,3 asserting that she had a “major depressive disorder” that required weekly treatment. App. 666. Croda accepted Barinova’s application, and her FMLA leave began thereafter. On August 18, 2004, Barinova brought an action against Croda, alleging that she was placed on administrative leave in retaliation for raising asbestos-related health and safety concerns.
Barinova’s twelve weeks of FMLA leave expired on September 1, 2004. During her leave, Barinova’s treatment was limited to a few follow-up conversations with her psychiatrist (mostly by phone), as well as prescriptions for related medication.4 On October 20, 2004, Barinova began more extensive treatment with a different psychiatrist.
Finally, by December 31, 2004, Barinova was terminated.5 On January 20, 2005, Barinova filed a claim for long-term disability benefits under the Policy. ReliaS-tar denied her claim. Under the relevant Policy language, ReliaStar concluded that Barinova was: 1) “actively at work,” but not receiving “regular and appropriate care” during her FMLA leave (prior to September 1, 2004); 2) neither “actively at work” nor receiving “regular and appropriate care” between September 1, 2004 and October 20, 2004; and 3) receiving “regular and appropriate care,” but not “actively at work,” after October 20, 2004. As a result, ReliaStar concluded that Barinova never became eligible for long-term disability benefits under the Policy.
III.
In May 2005, Barinova appealed ReliaS-tar’s initial determination to its Appeals Committee. She submitted a letter from her psychiatrist stating that she was disabled by the time he evaluated her in October 2004, and she was likely disabled prior to then. ReliaStar used an outside, board-certified psychiatrist to review Bari-nova’s file. This psychiatrist concluded that Barinova had not received “regular and appropriate care” for her depression before September 1, 2004.
In the end, the Committee “reviewed [Barinova’s] adverse claim decision, in its entirety, giving no deference to the previous decision,” and denied her appeal. App. 138. In March 2006, Barinova asked the Appeals Committee to reconsider its decision, but it declined. Barinova then brought the current ERISA action against ING and ReliaStar in federal court.
Before the District Court, Barinova argued: 1) that she was “actively at work” until she was terminated in December 2004; 2) that it was undisputed that she was receiving “regular and appropriate care” by October 20, 2004; and 3) that *913there was an issue of triable fact as to whether she was receiving “regular and appropriate care” before then. In granting the defendants’ motion for summary judgment, the District Court upheld Reli-aStar’s determination as reasonable and “entitled to deference.” App. 12. In particular, the Court “accept[ed] ReliaStar’s determinations that Barinova was no longer ‘actively at work’ as of September 1, 2004, and was not under the regular and appropriate care of a physician prior to October 20, 2004.” Id. Though it now appears that the District Court did not apply the correct standard of review, we nonetheless affirm its judgment.
The Court did not have the benefit of the Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2346, 171 L.Ed.2d 299 (2008), which clarified the standard of review that should be applied in similar contexts. As we explained in Doroshow, however, “[bjecause the District Court applied [a] review standard [that] was more favorable to [the appellant] than the new standard, we find no prejudice in our considering [the appellant’s appeal] using the Glenn standard without remanding.” Doroshow v. Hartford Life & Accident Ins. Co., 574 F.3d 230, 234 n. 1 (3d Cir.2009).
IV.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1) and (f). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We “exercise plenary review over the District Court’s decision to grant summary judgment.” Doroshow, 574 F.3d at 233. “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.’ ” Id. (quoting Fed.R.Civ.P. 56(c)).
V.
“[ERISA] permits a person denied benefits under an employee benefit plan to challenge that denial in federal court.” Glenn, 128 S.Ct. at 2346. “Principles of trust law require courts to review [such a denial] ‘under a de novo standard’ unless the plan provides to the contrary.” Id. at 2348 (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). “Where the plan ... grant[s] ‘the administrator or fiduciary discretionary aiithority to determine eligibility for benefits, trust principles make a deferential standard of review appropriate.’ ” Id. (quoting Firestone, 489 U.S. at 111, 109 S.Ct. 948) (internal citations omitted) (emphases in original). ReliaStar was granted such “discretionary authority” in this case.
Nevertheless, “[o]ften the [adjudicatory] entity ... both determines whether an employee is eligible for benefits and pays benefits out of its own pocket.” Id. at 2346. “[T]his dual role creates a conflict of interest.” Id. However, we “continue to apply a deferential abuse-of-discretion standard of review in cases where a conflict of interest is present.” Schwing v. Lilly Health Plan, 562 F.3d 522, 525 (3d Cir.2009). In these situations, we “take the conflict into account not in formulating the standard of review, but in determining whether the administrator or fiduciary abused its discretion.” Id.; see also Doroshow, 574 F.3d at 234 (rejecting our prior “sliding scale” approach and applying Glenn by noting that “a reviewing court should consider the conflict of interest— but only as one consideration among many”).
In this case, ReliaStar was the insurance carrier. In that capacity, it “both deter*914mine[d] whether an employee [wa]s eligible for benefits and pa[id] benefits out of its own pocket.” Glenn, 128 S.Ct. at 2346. Therefore, ReliaStar had an incentive to deny benefits in certain cases to save itself money. We keep this conflict of interest in mind, as we evaluate ReliaStar’s eligibility determination for abuse of discretion.6 Nevertheless, each of Barinova’s arguments fail.
First, Barinova argues that she remained “actively at work” until she was terminated in December 2004 — in other words, while she was on administrative leave. She reasons that, even while on leave, she received both salary and related benefits. Furthermore, she had not yet been formally terminated by Croda. Given this status, she concludes that she should have qualified as “actively at work” under the Policy during this period, and therefore been eligible for long-term disability benefits.
Barinova’s interpretation of the “actively at work” requirement is plausible; however, given the text of the Plan, it was not an abuse of discretion for ReliaStar to reject it. In its determination, ReliaStar interpreted “actively at work” to mean actually present at work or on FMLA leave— therefore, excluding employees on administrative leave (such as Barinova). To repeat, the Policy defines “actively at work” as “physically present at ... [one’s] customary place of employment with the intent and ability of working the scheduled hours and doing the normal duties of ... [one’s] job on that day.” App. 582. The only relevant exception to this requirement is for employees on FMLA leave. We conclude that ReliaStar’s interpretation of the “actively at work” requirement is consistent with the Policy’s terms, and therefore not an abuse of discretion.7 Given ReliaStar’s interpretation, Barinova could not qualify as “actively at work” once her FMLA leave ended — from September 1, 2004, onward — -since she remained on ad*915ministrative leave until she was terminated. While Barinova satisfied the other eligibility requirements by October 20, 2004, she was no longer “actively at work” by then (and, therefore, not entitled to benefits under the Policy).
Second, Barinova argues that, even if she were not “actively at work” after September 1, 2004, there is a triable issue of fact whether she began receiving “regular and appropriate care” before September 1, 2004. Therefore, summary judgment was inappropriate. We also disagree.
When making its eligibility determination, ReliaStar undertook an independent review of Barinova’s medical records, with the aid of an outside, board-certified psychiatrist. This psychiatrist explained that “regular and appropriate care” for someone with Barinova’s condition “would include intensive psychotherapy ... on, at least, a weekly basis by a doctoral level therapist,” and (in a severe case) “a consideration of participation in a partial hospitalization program, intensive outpatient treatment, [and] cognitive/behavioral treatment, as well as medication.” App. 521.
In the end, ReliaStar concluded that Barinova had offered little evidence that she received such care between May 17, 2004 and October 20, 2004. As the District Court further noted, Barinova conceded that “after her initial consultation with [her doctor in May 2004], she only received ‘occasional counseling on a few occasions, kept in contact via phone[,] and [was] prescribed anti-anxiety and anti-depressive medications’ [during this period].” App. 17.
In this context, we hold that ReliaStar did not abuse its discretion in concluding that Barinova failed to receive “regular and appropriate care” prior to October 20, 2004. Although she offered some evidence of the severity of her condition during this period, she presented little evidence to support her argument that the care she received at that time was “regular and appropriate.”
íJj :{s ijj ‡ }jc ‡
For the foregoing reasons, we affirm the judgment of the District Court.
. ING offers employee benefits products and services to companies through ReliaStar, its affiliate.
. The Policy provides for the following:
Certain employers are subject to the FMLA. If you have a leave from active work certified by your employer, then for purposes of eligibility and termination of coverage you will be considered to be actively at work. Your coverage will remain in force so long as you continue to meet the requirements as set forth in the FMLA.
App. 577.
. FMLA provides medical leave for up to twelve weeks for qualifying diseases.
. The psychiatrist was unable to locate Bari-nova's treatment records during this period.
.There is confusion in the record over Bari-nova’s precise termination date.
. Barinova urges us also to consider her ongoing disagreements with Croda (including related litigation) while reviewing ReliaStar’s denial of her disability claim. We agree to keep these disputes in mind; however, her complaints with Croda are not directly connected to ReliaStar. Rather, they are implicated only insofar as they relate to any information about Barinova provided by Croda to aid ReliaStar in its eligibility determination. Furthermore, we remain mindful that Barino-va provided her version of events to ReliaStar (and to the District Court). See, e.g., App. 129-31 (recounting Barinova's version of events to ReliaStar); see also App. 177-81 (providing Dr. Grigory Rasin’s account of Barinova’s history with Croda). Both ReliaS-tar and the District Court thus were able to take both versions of events into account when reaching their conclusions.
. Barinova's other "actively at work” arguments are similarly unavailing. First, she argues that the "actively at work” requirement does not apply to her because an internal company document stated that she was eligible for benefits until November 12, 2004. She is mistaken. Instead, we agree with the District Court, which concluded that "it is not clear that the [relevant! document says anything at all about her eligibility.” App. 16. Furthermore, such pre-printed, standard documents do not bind ReliaStar when it exercises its discretionary authority to interpret the Policy and make eligibility determinations— especially in cases (such as this one) where the document at issue is ambiguous (at best).
Second, Barinova argues that she was eligible for benefits under the "Continuity of Coverage” provision of the Policy. See App. 166— 67. Again we disagree. This provision waived the "actively at work” requirement for employees not "actively at work” on the Policy's "effective date.” App. 166. However, it does not apply to Barinova’s situation, as she was “actively at work” on that date. Instead, it applies to transitional situations, where the company is changing from one plan to another. It is included to protect employees who were not "actively at work” (for whatever reason) on the "effective date” of the new policy.
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OPINION
PER CURIAM.
In November 2009, Petitioner William Keisling filed a pro se civil action in the Middle District of Pennsylvania. On January 11, 2010, William Keisling petitioned this Court for “Extraordinary Relief/Change of Venue” ordering the transfer of his civil action to a District Court located outside of Pennsylvania. For the reasons that follow, we will deny the petition.
Mandamus is a drastic remedy available only in the most extraordinary circumstances.1 See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). To obtain a writ of mandamus, a petitioner must satisfy three conditions. First, he must “have no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). Second, he must show that his right to the writ is “clear and indisputable.” Id. Third, the reviewing court must conclude that the writ is “appropriate under the circumstances.” Id.
Keisling’s mandamus petition is a request to change venue. The express terms in 28 U.S.C. § 1404(a) provide that a federal district court may transfer civil actions from one federal district court to another. While the Supreme Court has found that a federal court of appeals may effect a transfer by direct order where “unusual circumstances” require “extraordinary action,” see Koehring Co. v. Hyde Constr. Co., 382 U.S. 362, 364-65, 86 S.Ct. 522, 15 L.Ed.2d 416 (1966), no such unusual circumstances appear based on Keisling’s petition. To the extent that Keisling may seek to disqualify the District Judges sitting in the Middle District of Pennsylvania based on alleged bias and prejudice, his petition does not establish that a reasonable person, with knowledge of all the facts, would conclude that the District Judges’ impartiality might reasonably be questioned. See 28 U.S.C. § 455(a); In re Kensington Int’l Ltd., 353 F.3d 211, 220 (3d Cir.2003).
*917Accordingly, we determine that Keisling has not met his burden of showing that he has no other adequate means to obtain the relief he seeks or that his right to issuance of the writ is “clear and indisputable.” As a result, we shall deny his mandamus petition.
. While Keisling labeled his filing as a "Petition for Extraordinary Relief/ Change of Venue,” we may treat the filing as a mandamus petition. See 28 U.S.C. § 1651; Nascone v. Spudnuts, Inc., 735 F.2d 763, 773 (3d Cir. 1984).
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OPINION
PER CURIAM.
Selwyn Bowen, proceeding pro se, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Bowen, a native and citizen of Guyana, entered the United States in 1987 as part of Guyana’s national soccer team. In 2001, he was placed in removal proceedings, for he had either entered the United States without inspection or stayed beyond the time allowed under his visa.1 When Bowen failed to attend his hearing in 2002, the Immigration Judge (“IJ”) ordered his removal in absentia. Despite that order, Bowen remained in the United States.
In 2008, Bowen, then represented by counsel, moved to reopen his removal proceeding, arguing, inter alia, that he had not received the Notice to Appear (“NTA”) before the 2002 hearing. The IJ denied the motion and noted that, although Bowen now sought relief under the Convention Against Torture (“CAT”), he had failed to file an application. On appeal, the BIA remanded to the IJ to determine whether Bowen could be charged with having received the NTA. The BIA also denied Bowen’s CAT application, which he had apparently submitted with his appeal.
On remand, the IJ did not conduct fact finding as to whether Bowen had received the NTA. Instead, the IJ appeared to treat the removal proceeding as reopened and held a hearing on Bowen’s new requests for relief: withholding of removal and a new claim under the CAT. At the hearing, Bowen presented several reasons for fearing a return to Guyana: (1) Bowen’s former soccer coach, who allegedly made sexual advances toward Bowen in approximately 1987, apparently still resided in Guyana; (2) the Indo-Gu-yanese led government would persecute Bowen because he was Afro-Guyanese; (3) the Guyanese government would torture him because he would be returning to the country as a deportee; and (4) Guyana lacked the medical resources to treat his health problems. The IJ, rejecting each of these reasons, denied *930Bowen’s requests for withholding of removal and relief under the CAT.
On appeal, Bowen, still represented by counsel, challenged the IJ’s denial of withholding of removal but not the denial of CAT relief. The BIA agreed with the IJ’s conclusion that Bowen had failed to demonstrate his eligibility for withholding of removal. In doing so, the BIA concluded that he had “not demonstrated that his [former] soccer coach targeted him or would seek to target him again on account of his membership in a particular social group, or that the Guyanese authorities would be unable or unwilling to protect him from harm.” (Decision of BIA at 2.) Moreover, the BIA held that Bowen’s documentary evidence did not establish a pattern or practice of persecution against deportees or individuals of Afro-Guyanese ethnicity. Finally, the BIA stated that Bowen had not explained how his medical condition entitled him to withholding of removal. Bowen now seeks review of this most recent BIA decision.2
II.
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.2003). To meet this standard, the alien must show either (1) past persecution, which creates a rebut-table presumption of future persecution; or (2) that it is more likely than not that he will suffer future persecution if removed to the country in question. See 8 C.F.R. § 208.16(b).
The BIA did not err in rejecting Bowen’s first theory of relief, for he did not show that his former coach’s alleged actions were motivated by Bowen’s race, religion, nationality, membership in a particular social group, or political opinion. Bowen’s second and third theories of relief also lack merit, as we will not disturb the BIA’s finding that the documentary evidence failed to demonstrate that Guyana has a pattern or practice of persecuting deportees or those of Afro-Guyanese ethnicity. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (stating that the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it”). Bowen’s fourth theory of relief fails as well, for he did not show how his inability to obtain medical treatment in Guyana entitles him to withholding of removal. To the extent Bowen now seeks to raise a new, unexhausted theory of relief, we lack jurisdiction to review that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
In light of the above, we will deny Bowen’s petition for review. His motion for a stay of removal is denied as moot. His motion for an extension of time to file additional documents is denied as well. See 8 U.S.C. § 1252(b)(4)(A) (providing that this Court “shall decide the petition only on the administrative record on which the order of removal is based”).
. It is unclear whether Bowen actually had a visa; regardless, he does not dispute the charge of removability.
. We have jurisdiction over Bowen’s petition pursuant to 8 U.S.C. § 1252(a)(1).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
The Northern York County Regional Police Department (“NYCRPD”) and several of its officers appeal from an order of *932the United States District Court for the Middle District of Pennsylvania denying them motion for qualified immunity and summary judgment on Troy and Tammy Hopkinses’ claim of unlawful seizure when Mr. Hopkins was mistaken for a bank robbery suspect. For the following reasons, we will affirm.
I. Background
A. Factual Background
Throughout late 2004 and early 2005, several Sovereign Bank branches in York County, Pennsylvania were robbed by the same armed man. The NYCRPD participated in a task force developed to apprehend the robber. Officers in the task force were given a description of the suspect, identifying him as a large, black male with a muscular build, in his late 20s or early 30s, between 5'10" and 6' tall, weighing between 185 and 200 pounds. The suspect’s method of operation was to approach his targeted bank on foot around closing time, carrying a black or clear plastic bag and a gun. He always wore a ski mask and gloves to cover his features.1 Police also suspected that, because the robber escaped so quickly, a second person was perhaps involved as a driver, and they identified a silver or gray Dodge Stratus, Aspen, or Neon as potential get-away cars. The suspect was reportedly becoming more aggressive with each robbery, and had even taken a hostage at one point.
The NYCRPD set up surveillance at a likely target bank in York, whereby several officers were posted to observe the bank at closing time in nearby unmarked vehicles. The surveillance operation was overseen by Detective David Steffen.
On February 9, 2005, Detective John Vaughn, II was surveilling the front entrance of the bank. Around closing time, Vaughn saw a silver Ford Expedition pull up to the bank’s drive-through service window as the teller was locking the front door of the bank to close for the day. The vehicle then pulled up to the front of the bank, parking perpendicular to the marked spaces and parallel to the bank’s front door. Next, Vaughn saw Mr. Hopkins, the driver, for two or three seconds as he got out of the car and approached the door of the bank. Mr. Hopkins, who has since passed away, was an African-American who stood approximately 6'1" in height and weighed between 370 and 380 pounds. He was wearing baggy clothing and was carrying a white object that appeared to Vaughn to be a bag. He was not wearing a hat, mask, or other head covering of any description. Vaughn watched as Mr. Hopkins approached the front of the bank, pulled on the locked door, and then returned to his vehicle.
As it turns out, Mr. Hopkins went to the bank that day simply to deposit his paycheck. His wife, Tammy, was in the front passenger seat of the Ford Expedition that he was driving and their two children were in the backseat. Mr. Hopkins had gone first to the drive-through window and, when no one answered his call for service, he drove around front, parked his car, leaving it running, and walked up to the door of the bank with his paycheck in hand. He tried to enter the bank by pulling once on the front door. After he realized that the door was locked, he returned to the car and told his wife that the bank had just closed. Later, during his deposition, Mr. Hopkins confirmed that on the evening in question he wore gray *933sweat pants, a T-shirt, and a blue winter jacket, and that he was not wearing a hat or gloves.
After observing Mr. Hopkins, Vaughn contacted Detective Migatulski, who was also participating in the surveillance of the bank that evening, informing him that a large black male with something in his hand had attempted to enter the bank. Migatulski relayed the information to Stef-fen. Several police officers, including Vaughn and Migatulski, followed the Hop-kinses’ vehicle as it left the bank. Meanwhile, the officers ran a record check of the Hopkinses’ vehicle and the dispatcher reported that there was no record available.2
Steffen authorized a stop of the vehicle, based on the suspicion that Mr. Hopkins was the elusive bank robber. Several officers, again including Vaughn, and at least five police vehicles were involved in the stop, which was effected with a strong showing of force.3 The officers drew their weapons, pointing them at the vehicle, and, through a loudspeaker, ordered Mr. Hopkins to roll down his window, turn off the ignition, drop his keys on the ground, and open the door to his vehicle from the outside. Mr. Hopkins complied. He was then ordered to exit the vehicle and get down on his knees, which he did, and was handcuffed. He was fully cooperative, and, understandably, asked why he was being handcuffed. He identified himself as a pastor at the Heart of God Christian Worship Center.
Mrs. Hopkins then got out of car to ask what was going on, and she was ordered to get down on her knees, which she did. She was then handcuffed. Around this time, one of the officers told Mr. Hopkins that he resembled a bank robbery suspect. Mr. Hopkins again informed the officers that he was a local pastor and that he was not a bank robber. At some point after they had both been handcuffed, the Hop-kinses stated that them children were still in the car. A police officer eventually checked and confirmed that there were indeed children in the car.
The Hopkinses remained handcuffed while the officers conferred with each other. Approximately twenty-five minutes elapsed between the initial stop and when the Hopkinses heard a police officer say that the handcuffs would be removed. Five minutes later, police uncuffed the Hopkinses but detained them an additional ten to fifteen minutes before allowing them to go. Before the Hopkinses left, Steffen showed them a photograph of a potential suspect in the robberies, a bald, black man with an earring and goatee.4 Hopkins, who was bald and had a goatee but no earring, told the police that he did not look *934like the man in the photograph. Steffen responded that, at night, Mr. Hopkins did look like the man in the photograph. The entire stop, from start to finish, took about forty to fifty minutes.
B. Procedural History
Based on the events of February 9, 2005, Mr. and Mrs. Hopkins brought this lawsuit pursuant to 42 U.S.C. § 1983, alleging that they were seized in violation of their Fourth Amendment rights. After the close of discovery, all of the defendants moved for summary judgment and argued, among other things, that they are entitled to qualified immunity.5
Reviewing that motion, the District Court first concluded that the stop of Mr. Hopkins constituted an investigatory detention that did not rise to the level of an arrest. Hopkins, 2008 WL 2048699, at *7. Next, the Court concluded that, viewing the facts in the light most favorable to the Hopkinses, “Defendants lacked reasonable suspicion to believe that Troy Hopkins was the bank robber they sought, and thus the initial stop was unlawful.” Id. at 9. Furthermore, the Court concluded that, “[ejven if Defendants had been justified in initially detaining Plaintiffs, their prolonged detention was also unlawful” because, under the circumstances, the defendants failed to “act diligently to confirm or dispel their suspicions” that Mr. Hopkins was the bank robber. Id. at *9. The District Court determined that “a reasonable officer in Defendants’ position would have understood that there was no reasonable suspicion to believe Mr. Hopkins was the bank robber.” Id. Accordingly, the Court found that summary judgment on qualified immunity grounds was not warranted.6 Id. Appellants moved for reconsideration, which was denied. This timely appeal followed.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction in this case under 28 U.S.C. §§ 1331 and 1343. Pursuant to the collateral order doctrine, we have jurisdiction to review a denial of a claim of qualified immunity to the extent that it turns on an issue of law. Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir.2002). However, “[w]e have no jurisdiction ... to review a District Court’s determination that there is sufficient record evidence to support a set of facts under which there would be no immunity.” See Schieber v. City of Phila., 320 F.3d 409, 415 (3d Cir.2003). In other words, “we may ‘review whether the set of facts identified by the district court is sufficient to establish a violation of a clearly established constitutional right,’ but we may not ‘consider whether the district court correctly identified the set of facts that the summary judgment record is sufficient to prove.’ ” Forbes v. Twp. of Lower Merion, 313 F.3d 144, 147 (3d Cir.2002) (quoting Ziccardi, 288 F.3d at 61).
The Hopkinses argue that we lack jurisdiction because the District Court noted the existence of factual issues — for example, whether Mr. Hopkins committed any traffic violations before he was stopped. See Hopkins, 2008 WL 2048699, at *3, n. 4. Although the District Court acknowledged the existence of disputed facts, it resolved *935those facts in favor of the Hopkinses for summary judgment purposes, resulting in a set of facts to which the Court applied the law of qualified immunity. Accordingly, we have jurisdiction to determine whether the District Court correctly applied the law to the set of facts it identified as supported by the summary judgment record.
“On review of a denial of summary judgment, we apply a plenary standard of review.” Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir.2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. (citing Fed.R.Civ.P. 56(c)). “In reviewing a denial of summary judgment, this court must view the facts in the light most favorable to the nonmoving party....” Barton v. Curtis, 497 F.3d 331, 334 (3d Cir.2007).
III. Discussion
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (internal quotations omitted). Two inquiries govern whether an official is entitled to qualified immunity: (1) whether the facts alleged establish a violation of a constitutional right, and (2) whether the constitutional right at issue was clearly established.7 Id. at 815-16.
Appellants address only one issue on appeal: whether the District Court erred in finding that the prolonged detention of the Hopkinses was unreasonable and thus violated their constitutional rights. Of course, since the initial stop must have been lawful for the resulting detention to be lawful, we will address the entirety of the officers’ actions in determining whether the Hopkinses constitutional rights were violated.8 The Hopkinses’ answering brief does not directly respond to the Appellants’ brief but instead argues that the Hopkinses were, in fact, arrested and that, even if the initial stop was merely investigatory, it ripened into an arrest. The Hopkinses further argue that the officers’ actions were unlawful because the police action was never supported by probable cause.
The Fourth Amendment protects individuals from “unreasonable searches and seizures.” U.S. Const, amend. IV. An officer must have probable cause to lawfully arrest an individual. Michigan v. Sum*936mers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). However, probable cause is not required for investigatory detentions that fall short of an arrest. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such investigatory stops need only be supported by an officer’s reasonable suspicion that criminal activity is afoot. Id. at 21, 88 S.Ct. 1868 (“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (footnote omitted)).
“[W]hen police officers make an investigative stop, they may take such steps as are ‘reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.’ ” United States v. Edwards, 53 F.3d 616, 619 (3d Cir.1995) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). Whether an officer’s detention of an individual during an investigatory stop comports with the Fourth Amendment depends on whether, under the circumstances, the length and intrusiveness of the stop was reasonable in light of the officer’s suspicion. See Hensley, 469 U.S. at 234, 105 S.Ct. at 683; see also Terry, 392 U.S. at 19-20, 88 S.Ct. 1868 (“[I]n determining whether [a] seizure ... [is] ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”). “ ‘[I]n assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.’ ” United States v. Frost, 999 F.2d 737, 742 (3d Cir.1993) (quoting United States v. Place, 462 U.S. 696, 709-10, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)).
The District Court correctly determined that, viewing the facts in the light most favorable to the Hopkinses, the officers acted unreasonably in stopping the Hop-kinses’ vehicle based on Detective Vaughn’s observations of Mr. Hopkins at the bank. Mr. Hopkins, though an African-American man of approximately the height ascribed to the robber, was otherwise dramatically different from the described suspect. He weighed between 370 and 380 pounds, which is roughly twice the 185 to 200 pounds the robber was said to weigh, and, even in baggy clothes, a man as large as Mr. Hopkins would not easily be mistaken as having a muscular build.9 Furthermore, Mr. Hopkins’s actions at the bank on the evening of February 9, 2005 did not remotely match the bank robber’s modus operandi. The robber always covered his face and hands and approached the bank on foot, carrying a bag and gun. Mr. Hopkins, by contrast, had nothing covering his face or hands, and he drove up to the bank. He attempted to use the drive-through teller window before driving around to the front of the bank, which *937would seem unusual for any bank robber and was surely so for the robber being sought. Finally, Mr. Hopkins was carrying a single piece of paper, his paycheck, not a gun or a bag. These differences, which are several and significant, suggest that the police acted unreasonably in determining that Mr. Hopkins should be subject to an investigatory stop.10
As for the detention of the Hopkinses, Appellants assert that “the length of time of the detention (40 minutes) was directly attributable to the period of time during which the police officers were exercising appropriate diligence to properly identify the Plaintiffs.” (Appellants’ Amended Op. Br. at 15.) However, as the Hopkinses point out, Appellants do not identify any steps that the officers took during that time to ascertain the Hopkinses’ identities.11 Mr. Hopkins was cooperative throughout the stop and identified himself to the officers several times, but there is no indication that the officers did anything to confirm his identity. And while the robber was suspected of having an accomplice, no one suspected that he brought his family along. The presence of the Hopkinses’ children in the car should have immediately indicated to the police that Mr. and Mrs. Hopkins were not the bank robber and accomplice whom they were seeking.12
Accordingly, we agree with the District Court that, viewing the facts in favor of the Hopkinses,13 the forty minute detention was unreasonable under the circumstances and thus violated the Fourth Amendment. Because we conclude that the District Court correctly determined that the officers’ actions were unreasonable under the lesser standard required to justify an investigatory stop, we need not address whether the District Court correctly decided that the stop never rose to the level of an arrest.14
IV. Conclusion
For the foregoing reasons, we affirm the District Court’s denial of Appellants’ motion for summary judgment as to qualified *938immunity and remand for further proceedings consistent with this opinion.
. Although the suspect was always fully covered, witnesses said they were able to determine his race by observing patches of skin through the eyeholes of his ski mask or between his glove and jacket.
. The vehicle was registered to the Heart of God Christian Worship Center where both Mr. and Mrs. Hopkins were pastors at the time. It is not clear if or when the officers learned that fact.
. The parties dispute whether Mr. Hopkins committed any moving violations before he was pulled over. Defendants assert that Mr. Hopkins was driving aggressively and that he made improper lane changes, and that those actions contributed to their suspicions of criminal activity. The Hopkinses assert that no such moving violations were committed. Since this fact is in dispute, the District Court rightly resolved it in favor of the Hopkinses for purposes of the summary judgment analysis. Hopkins v. Vaughn, Civ. A. No. 06-323, 2008 WL 2048699, at *3 n. 4 (M.D.Pa. May 12, 2008).
.It is not clear where police obtained the photograph or why they were using it, since the suspect was always masked when he committed the bank robberies. Steffen testified that the photograph was one, among others, that he carried in his portfolio because the photographs "appeared to have value at the time." (App. at 510-11.)
. Defendants also moved for summary judgment as to the Hopkinses' request for punitive damages. The District Court granted that aspect of the motion as to the NYCRPD, and that decision is not before us on appeal. Hopkins, 2008 WL 2048699, at *10.
. After the Court ruled on the summary judgment motion, Mr. Hopkins died and Mrs. Hopkins, already a plaintiff in her own right, was substituted for Mr. Hopkins as the ad-ministratrix of his estate.
. At the time the District Court ruled on the summary judgment motion, the Supreme Court’s opinion in Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), required courts to answer the first inquiry in the qualified immunity analysis before turning to the second. After the District Court ruled on the motion, the Supreme Court issued Pearson, in which it held that ’’[¡judges of the district courts and courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the case at hand.” Pearson, 129 S.Ct. at 818.
. Appellants seem to have misunderstood tire District Court's conclusion concerning the initial stop. They state that "as the District Court acknowledged, the investigatory stop was appropriate, and [sic] as was the display of firearms.” (Appellants' Amended Op. Br. at 15.) However, the District Court made no such acknowledgment. Instead, the Court concluded that, despite the use of firearms and handcuffs, the initial seizure of the Hop-kinses was an investigatory stop rather than an arrest, but that the officers lacked the requisite reasonable suspicion to make that investigatory stop, rendering the stop unlawful. Hopkins, 2008 WL 2048699, at * *7-9.
. Despite the more detailed description of the suspect, Detective Vaughn only recalled the suspect being described as a large, black male. First, in light of evidence that a more detailed description of the suspect was given, we must resolve this discrepancy in favor of the Hopkinses, as the District Court appears to have done. See Hopkins, 2008 WL 2048699, at *1 (noting that the specific description "was distributed to all participants in the task force"). Furthermore, to the extent the officers were operating on the less detailed description of the suspect as a "large black male,” such a description is far too general on its own to justify the detention of Mr. Hopkins, especially since he did not act at all in accordance with the suspect's modus operandi. See United. States v. Brown, 448 F.3d 239, 247-48 (3d Cir.2006) (concluding that description that was "general” and “wildly wide of target” did not support reasonable suspicion).
. We note also, incidentally, that the Hop-kinses’ SUV would not likely be mistaken for a Dodge Stratus, Aspen, or Neon, which represented the type of get-away car the robber was suspected to have employed.
. Appellants state that ”[d]uring the brief time that [the Hopkinses] were handcuffed, the officers promptly dispelled their suspicions and released them.” (Appellants' Amended Op. Br. at 11.) However, they provide no explanation of, nor any record support for, the specific actions taken by police to dispel those suspicions. Appellants also state that the police were waiting for positive identification of the Hopkinses which "did not come until a person familiar with the Plaintiffs was able to positively identify them.” (Id. at 14-15.) Again, Appellants do not provide any record support for this statement. Although the record indicates that a minister who knew the Hopkinses arrived at the scene, Mr. Hopkins testified that the minister arrived because his children called him from the car, not because the police called him.
. Indeed, according to Detective Steffen, the officers realized that Mr. Hopkins was not the bank robber at the time they saw the children in the car.
. We would not have our description of the unfortunate events of that evening be understood as reflecting any judgment regarding the ultimate merits of the dispute. We are required at this stage of the proceedings to view the case from a vantage point that gives the Hopkinses every reasonable inference from the facts, which we have done, though we recognize that decisions made at the scene, in potentially dangerous circumstances, are often less clear-cut than they may appear after tire fact.
. Additionally, since Appellants did not challenge the District Court's conclusion that the officers acted unreasonably in light of clearly established law, we need not address that conclusion on appeal.
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OPINION
PER CURIAM.
Zhong Ming Zhuo is a native and citizen of China. He entered the United States in the late 1990s without proper documentation. He filed an asylum claim and was eventually placed in removal proceedings. His initial asylum application stated that local birth-control officials harassed him and his wife when she was pregnant with their third child, and eventually persuaded her (by means of threats of excessive fines) to have an abortion against her will and to have an IUD inserted without her permission. A.R. 56, 348. In a later affidavit and in testimony before an Immigration Judge (IJ), in contrast, Zhuo claimed that birth control officials suddenly abducted his wife, took her for a forced abortion, and sterilized her, and that she was then hospitalized for ten days. A.R. 56, 339. The IJ found Zhuo lacked credibility. The Board of Immigration Appeals (BIA) affirmed without opinion on October 22, 2002.
On July 13, 2007, Zhuo filed a motion to reopen, essentially asserting the same claims. He attached an affidavit and medical reports regarding his wife, stating that she continues to suffer problems from her forced abortion and sterilization. In his motion, he stated that the motion was not subject to the time restrictions for filing a motion to reopen “due to a fundamental change in the definition of a ‘refugee’ brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.” A.R. 10. Zhuo also alleged generally that his former counsel was ineffective. A.R. 9.
The BIA found the motion untimely and found that it did not fall into any exceptions to the time restrictions. A.R. 2. The BIA also noted that Zhuo had not met the requirements, set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for establishing a claim of ineffectiveness of his prior counsel. A.R. 3-4.
Zhuo filed a timely petition for review and a motion for stay of removal, but filed them in the United States Court of Appeals for the Second Circuit, which was not the correct court, as the IJ completed proceedings in Newark, New Jersey. See 8 U.S.C. § 1252(b)(2) (“The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.”). The Second Circuit transferred the petition to this Court.
This Court reviews the denial of a motion to reopen for an abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). Under this standard, the BIA’s decision will be reversed only if it is “arbitrary, irrational, or contrary to law.” Id. In general, a motion to reopen must be filed within 90 days of the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The time and number requirements are waived for motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.” 8 C.F.R. § 1003.2(c)(3)(h).
With his motion to reopen, Zhuo presented documents showing that his wife underwent medical treatment in 2007 allegedly due to complications from past birth control measures. He argues that this constitutes “changed circumstance [sic] arising in China that is material to his claim to asylum.” Petitioner’s Brief at 13. However, changes in personal circumstances do not constitute changed country conditions, and thus do not excuse a mo*940tion’s untimeliness, although such changes may sometimes be relevant to a claim that an alien would be persecuted under changing Chinese family planning laws. Zheng v. Attorney General, 549 F.3d 260, 267 (3d Cir.2008). Zhuo has not made any attempt to argue that country conditions have changed.
The deadline for filing a motion to reopen may also be tolled by counsel’s ineffectiveness, see Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir.2005); but Zhuo did not raise the issue of ineffective assistance of counsel in his brief in this Court. It is therefore waived. Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).1
We further note that even if Zhuo’s motion to reopen had been filed within 90 days, or had met an exception to the timeliness requirements, he would not be eligible for asylum on the basis of any persecution his wife allegedly suffered under China’s population policies. Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc). Zhuo would only be able to claim relief on the basis of his own persecution. Id.
Because Zhuo’s motion to reopen was untimely and did not meet an exception to the 90-day filing requirements, the Board properly denied the motion. We thus will deny the petition for review.
. In any event, we agree with the BIA that Zhuo did not make any attempt to meet the Lozada requirements. We also note that Zhuo has not pursued his meritless claim that changes in the definition "refugee'' rendered his motion timely. The 1996 changes he cited took place several years before he initially applied for asylum.
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OPINION OF THE COURT
PER CURIAM.
Gladys Glenda Bellot-Paul petitions for review of the final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny her petition.
I.
Bellot-Paul petitions for review pro se, but she was represented by counsel before the Immigration Judge (“IJ”) and the BIA. Belloi>-Paul is a citizen of Dominica. She initially entered the United States in 1998, and an IJ ordered her removal but granted her leave to voluntarily depart, which she did. In 2002, she entered the United States again without being admitted or paroled, and the Government instituted removal proceedings on that basis. Bellot-Paul concedes removability and has not sought any relief on the basis of conditions in Dominica. Instead, the only relief she sought was cancellation of removal under what the IJ called the “battered spouse” provision, the provision of the Violence Against Women Act codified at 8 U.S.C. § 1229b(b)(2). That provision allows the Attorney General to cancel an alien’s removal if, inter alia, he or she, or his or her child, has been “battered or subjected to extreme cruelty” by a spouse or parent who is a United States citizen or a lawful permanent resident. See id.1
At a hearing on February 25, 2008, counsel informed the IJ that Bellot-Paul intended to seek cancellation of removal. The IJ advised Bellot-Paul that she was required to fill out a Form EOIR-42B application for cancellation of removal and send it to a Department of Homeland Security (“DHS”) service center in Texas, along with the fees for filing and fingerprinting. The IJ then set a deadline of July 3, 2008, for Bellot-Paul to be finger*942printed and to file with the Immigration Court the properly filed form along with the receipt indicating that the DHS had accepted it for filing. The IJ expressly and repeatedly warned Bellot-Paul that she would deem the application abandoned and order Bellot-Paul’s removal from the United States if she did not receive the properly filed form together with the DHS fee receipt by July 3. (A.66-69.) The IJ also scheduled a hearing on the merits of the application for August 14, 2008.
On July 24, 2008, twenty-one days after the filing deadline, Bellot-Paul filed a motion for a continuance with the IJ. The sole basis for the motion was that Bellot-Paul had not yet received a filing receipt from the DHS or a fingerprinting appointment. Attached to the motion was evidence that Bellot-Paul had mailed her cancellation application with the required fees to the DHS on July 2 (the day before it was due to be filed along with the DHS fee receipt with the Immigration Court) and that the DHS received it on July 7. Also attached was the application for cancellation of removal, which did not bear a fee stamp from the DHS. The IJ denied the motion for a continuance, noting in the order that testimony would be received on August 14. The motion did not explain why Bellot-Paul waited until the day before her application was due to be filed with the Immigration Court to send it to the DHS.
The IJ held a hearing on Bellot-Paul’s application on August 14 as scheduled. The IJ asked Bellot-Paul’s counsel why he had waited so long to send the application to the DHS, but counsel never offered any explanation. (A.73-75.) The IJ then denied the application on the grounds that Bellot-Paul had abandoned it by failing to comply with the July 3 deadline, and also ordered her removal to Dominica. The BIA dismissed Bellot-Paul’s appeal on the same basis, emphasizing the various filing requirements and the IJ’s discretion to set deadlines. Bellot-Paul petitions for review.2
II.
The only ruling that Bellot-Paul challenged before the BIA and challenges on review is the decision to deem her application for cancellation of removal abandoned because she did not file it by the deadline set by the IJ. Under 8 C.F.R. § 1003.31(c), “[t]he Immigration Judge may set and extend time limits for the filing of applications and related documents .... If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed *943waived.” We review application of this provision for abuse of discretion. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008). Accordingly, we may not disturb it unless it is “arbitrary, irrational or contrary to law.” Khan v. Att’y Gen., 448 F.3d 226, 233 (3d Cir.2006) (denial of a continuance reviewed for abuse of discretion). In making that determination, we review only the BIA’s decision because it issued its own instead of adopting that of the IJ. See Rranci v. Att’y Gen., 540 F.3d 165, 171 (3d Cir.2008). We perceive no abuse of discretion here.
Bellot-Paul does not argue on review, and did not argue before the BIA, that the IJ misconstrued or misapplied any of the regulations governing filing. Instead, as the BIA properly explained, Bellot-Paul was required to submit the filing fee to the DHS, see 8 C.F.R. § 1003.24(a), and then to file her application with the Immigration Court together with either a fee receipt from the DHS or an application for a waiver of fees, see, e.g., 8 C.F.R. § 1003.24(c)(1) (“When an application for relief is filed during the course of proceedings, the fee for that application must be payed in advance to the [DHS].... The fee receipt must accompany the application when it is filed with the immigration court.”).
Nor does Bellot-Paul raise any colorable argument that the IJ or BIA acted arbitrarily or capriciously. She argues that the IJ erred in rejecting her application because she mailed it to the DHS before the deadline that the IJ set for filing it with the Immigration Court and that the amount of time the DHS takes to issue the necessary fee receipt is beyond her control. The IJ, however, specifically advised her on February 25, 2008, that she would have to file her application with the Immigration Court, together with a fee receipt from the DHS, by July 3. The IJ further specifically advised her that her application would be denied if she failed to do so. Yet Bellot-Paul waited for over four and one-half months until the day before her application was due to be filed with the Immigration Court before even sending it to the DHS. She provided no explanation for that delay before the Agency and provides none on review. Thus, we cannot say that the BIA abused its discretion in affirming the IJ’s enforcement of the time limitation. See Arellano-Hernandez v. Holder, 564 F.3d 906, 911 (8th Cir.2009) (“[T]he IJ has the authority to deem applications waived when submitted after the set deadlines. Therefore, the BIA did not abuse its discretion in affirming the IJ’s determination that [petitioner’s] cancellation application was untimely and waived.”); cf. Khan, 448 F.3d at 234-35 (rejecting similar challenge to denial of a continuance).3
Accordingly, we will deny the petition for review.
. Neither the IJ nor the BIA reached the merits of Bellot-Paul's application, but we note that its basis is not entirely clear. The application itself does not state its basis. According to a Virgin Island Department of Health report and other reports that Bellot-Paul attached to a different filing, however, she is estranged from her husband, who apparently is a naturalized United States citizen and has custody of the couple’s nine-year-old son. (A.100-105.) The reports further state that her husband has refused to allow her to visit her son, which has exacerbated what the reports refer to as her mood disorder, depression and chronic anxiety and stress. One of the reports recommends that, in the interest of Bellot-Paul’s mental health, the IJ "assist her in obtaining a more permanent (stable) immigration status so that she can mount a more defensible case for custody of her son.” (A. 100.) We express no opinion on whether these circumstances, if established, would satisfy the requirements of 8 U.S.C. § 1229b(b)(2). We further note that, if the IJ had reached the merits of Bellot-Paul’s application and denied it, we likely would lack jurisdiction to review that discretionary decision. See 8 U.S.C. § 1252(a)(2)(B)(ii); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003).
. There is some question whether venue is proper in this case. Petitions for review of immigration cases are properly filed in ‘The court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” 8 U.S.C. § 1252(b)(2). In this case, the IJ conducted proceedings from her office in San Juan, Puerto Rico, which lies within the First Circuit. Bellot-Paul, however, appeared by video teleconference from St. Thomas, United States Virgin Islands, which is where her proceeding was docketed and which lies within this Circuit. It is thus not immediately clear where her proceeding should be deemed "completed” for purposes of § 1252(b)(2). Cf. Georcely v. Ashcroft, 375 F.3d 45, 48 (1st Cir.2004) (noting that proceeding conducted in St. Thomas but likely docketed in Puerto Rico might be deemed "completed” in Puerto Rico because IJ's order was docketed there, but not deciding the issue); Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir.2004) (holding that physical location of the IJ controls where cases are conducted by video teleconference, though in case where the proceeding was docketed in the IJ’s physical location). We need not decide the issue, however, because the Government has conceded proper venue in this case and we see no reason to raise the issue sua sponte. See Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 5 (3d Cir.2005) (noting that venue is not jurisdictional and declining to transfer case where the parties' presentations in this Court were complete).
. Bellot-Paul asserts, without further explanation and without citation, that the IJ erred in "taking action on my cancellation application" because, proper filing not having been effected, it lacked jurisdiction to do so. Bel-lot-Paul's single-sentence assertion is insufficient to raise this issue on review. See United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir.2008). In any event, the IJ did not take substantive action on the application and plainly had the authority to deem it waived. See 8 C.F.R. § 1003.31(c); Arellano-Hernandez, 564 F.3d at 911. Bellot-Paul also asserts that the circumstances described above denied her due process but, again, has provided no authority or specific argument in that regard. Nevertheless, Bellot-Paul has not shown that the IJ or BIA prevented her from presenting her case or that she suffered prejudice as a result. See Khan, 448 F.3d at 235-36.
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OPINION OF THE COURT
AMBROSE, District Judge.
Appellant Gregory Jackson’s appointed counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The government has filed a brief in support of counsel’s motion. Jackson has not filed any pro se brief in opposition to counsel’s motion. Because we are satisfied that there exist no non-frivolous issues for direct appeal, and Jackson’s counsel has complied with all duties under applicable law, we will grant counsel’s motion and dismiss the appeal.
I.
Because we write solely for the parties, we will limit our discussion to facts relevant to framing the inquiry on appeal.
*945On May 12, 2005, the District Court sentenced Jackson to forty-eight months of imprisonment and three years of supervised release. The sentence followed Jackson’s plea of guilty to an indictment charging him with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was released to supervised release on November 14, 2007. While on supervised release, Jackson failed to appear for scheduled appointments with his probation officer, failed to attend mental health counseling, and submitted urine samples that tested positive for cocaine. Additionally, on May 13, 2008, Jackson was arrested for second degree assault, after punching his wife and causing her physical injury. He pleaded guilty to that charge in Delaware state court, and was sentenced by the state court to eight years of imprisonment, suspended after serving three years, as well as restitution. On January 9, 2009, the District Court issued an amended petition on probation and supervised release.
Subsequently, on April 4, 2009, the District Court held a revocation and sentencing hearing. During the hearing, Jackson admitted to violating his supervised release. The District Court determined that the advisory sentencing guideline range was thirty-three to forty-one months, and that there was a statutory maximum of twenty-four months. The District Court then revoked Jackson’s supervised release, and imposed a sentence of twenty-four months imprisonment, to run consecutive to the state sentence. Jackson then filed this timely appeal.
il.
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Under Anders, we engage in a two-part inquiry. First, we ask whether counsel adequately fulfilled the requirements of Third Circuit Local Appellate Rule 109.2(a);1 second, we consider whether an independent review of the record presents any non-frivolous issues for appeal. United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009). In this context, moving counsel must demonstrate that the record has been “thoroughly scoured ... in search of appealable issues,” and must “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). In engaging in this inquiry, we review the Anders brief itself, as well as the record on appeal. If the Anders brief appears facially adequate, however, we need not conduct a “complete scouring of the record,” but instead may be “guided in reviewing the record by the Anders brief itself,” as well defendant’s pro se brief. United States v. Youla, 241 F.3d 296, 301 (3d Cir.2001).
After reviewing the present record and counsel’s submissions, we conclude that counsel has complied with the requirements of both Anders and LAR 109.2. Counsel has provided copies of the Anders brief to both Jackson and the government. It is clear, as well, that counsel has thoroughly examined the record in order to identify any appealable issues, and explained why the sole potential grounds for *946appeal would be frivolous. We are satisfied that counsel’s Anders brief is adequate on its face. Accordingly, and because Jackson did not file any pro se brief, we will confine our review of the record to those portions identified in the Anders brief.
Upon independent review of the record, we reach the same conclusion as that reached by counsel and the government. Counsel notes that Jackson may argue that his sentence is unreasonable, but that the argument is frivolous because the Court explained the reasons for its sentence and properly exercised its discretion. In reviewing a sentence, we must ensure that the district court committed no procedural error, and then consider the reasonableness of the sentence under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007).
During sentencing, the District Court discussed an uncharged gun offense, but expressly and repeatedly stated that the offense was not part of its rationale for sentencing. Instead, the Court stated that its sentence was based “most especially [on] the factors outlined in Title 18, 3553(a),” and correctly calculated the applicable advisory guideline range. Moreover, the Court adequately explained the basis for the sentence, which involved, inter alia, Jackson’s history, characteristics, and the nature of the offense. The Court’s decision was based on legally appropriate factors, reflects no procedural error, and was not an abuse of discretion.
III.
In conclusion, we are satisfied that there are no non-frivolous issues available to be presented on appeal. We will AFFIRM the judgment of the District Court, and will GRANT counsel’s motion to withdraw. Pursuant to Third Circuit Local Appellate Rule 901.2(b), we further find that “the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the United States Supreme Court.”
. Local Appellate Rule 109.2(a) provides, in pertinent part, as follows:
Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States ... If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel.
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OPINION
PER CURIAM.
Petitioner, Jorge Abraham Rodriguez-Lopez, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny his petition.
I.
Rodriguez-Lopez, a native and citizen of Guatemala, entered the United States without inspection or parole in November 1990. In January 1993, he filed an application for asylum and related relief in which he claimed that his life would be in danger if forced to return to Guatemala. In an affidavit submitted in support of his application, Rodriguez-Lopez explained that, before he left the country, he had been a student in Quetzaltenango, where he had associated with an anti-government student organization. According to his affidavit, several members of the organization were either assassinated or forced to join the guerrilla army. Fearing for his own life, Rodriguez-Lopez fled to the United States.
In September 1998, Rodriguezr-Lopez appeared for a hearing before Immigration Judge (“IJ”) Frederic Leeds. After conceding that he was removable as charged, Rodriguez-Lopez voluntarily withdrew his application, apparently because he believed that the political climate in Guatemala had improved. As a result, he was given permission to depart voluntarily before January 23,1999.
Rodriguez-Lopez did not depart within that period. Rather, approximately six years later, he filed a motion to reopen his removal proceedings in order to file a new application for asylum.1 The IJ granted *952Rodriguez-Lopez’s request and reopened the proceedings.
In Rodriguez-Lopez’s second application for asylum, withholding of removal, and relief under the Convention Against Torture (the “CAT”), he again stated that he had participated in a political student group in Quetzaltenango, but this time added that, as a result of his participation, his family members had been threatened, he had been attacked and stabbed with a knife, and a close friend of his in the group had been assassinated. (AR 000503.) According to Rodriguez-Lopez, “some armed group or groups” were still searching for him because of his association with that friend. (AR 000503.)
The parties appeared for a hearing on Rodriguez-Lopez’s second application on December 27, 2006. On direct examination, Rodriguez-Lopez’s attorney first asked him about the student group he had joined in Quetzaltenango.2 He stated that the organization performed protests and visited businesses to collect donations for their cause. If a business refused to contribute, Rodriguez-Lopez and other members of the organization would deface the business’s property. According to Rodriguez-Lopez, several members of the organization disappeared and were later found dead.
Next, Rodriguez-Lopez told the court that, sometime in 1988, his brother began to receive phone calls warning him that Rodriguez-Lopez was in danger. Then, in September 1989, three men attacked him and stabbed him in the back, nearly killing him. Rodriguez-Lopez stated that his brother continued to receive threatening phone calls for several years after the attack even though he had left the country.
On cross-examination, the government inquired into several inconsistencies in the record. First, the government asked Rodriguez-Lopez why neither one of his applications mentioned that he had collected money for the student organization or that he had defaced property when people refused to contribute.3 The government also asked him why his second application failed to note that his assault was triggered by these activities. In response, Rodriguez-Lopez explained that “the lawyer never asked [him] about it, the questions that were asked was whether or not [he] had problems in [his] country because of political reasons.” (AR 000183.)
Next, the government asked Rodriguez-Lopez why neither one of his applications mentioned that his brother had received threatening phone calls during the time that he was still in Guatemala. Rodriguez-Lopez responded that, “at the moment that [he] was filling out the statement, the declaration, not everything came up in [his] mind.” (AR 000185.) The government also asked him why he testified on direct examination that his wife and children had never been threatened, while in his second application, he had stated that his “relatives in Guatemala are still receiving threats to kill [him] and [his] children and [his] wife.” (AR 000186.) Rodriguez-Lopez explained that the law*953yer who assisted him with his second application must have misunderstood him.
After Rodriguez-Lopez testified, he presented Professor Frank Lewis Rusciano as an expert on his behalf. Professor Rusci-ano first told the court about his meeting with Rodriguez-Lopez. According to the professor, Rodriguez-Lopez had conveyed to him that he had been involved in union strikes supported by students at the University of San Carlos; that he had placed posters on businesses that did not support the union; and that he was eventually attacked as a result of these activities. Professor Rusciano also testified about current conditions in Guatemala, opining that the political climate had not improved significantly since Rodriguez-Lopez’s departure.
After the hearing, the IJ found that Rodriguez-Lopez was not credible because he had provided conflicting statements and material omissions regarding his political activity in Guatemala. Therefore, the IJ found that Rodriguez-Lopez had failed to demonstrate eligibility for asylum on the basis of past persecution under INA § 101(a)(42)(A). See 8 U.S.C. § 1101(a)(42). The IJ further found that he had not established a well-founded fear of future persecution. See id. In addition, the IJ held that, because Rodriguez-Lopez had failed to satisfy the asylum standard, he could not satisfy the more difficult standard for withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir.2003). Finally, the IJ concluded that Rodriguez-Lopez had failed to present any evidence demonstrating that it was more likely than not that he would be tortured if forced to return to Guatemala. See 8 C.F.R. § 1208.16(e)(2). Therefore, the IJ denied his application for relief under the CAT as well.
Meanwhile, Rodriguez-Lopez had filed an application for cancellation of removal. Because it had not been properly submitted to the court, the IJ scheduled a separate hearing on the application. The IJ ultimately determined, however, that Rodriguez-Lopez was ineligible for this type of relief because he had not been present in the United States for the requisite ten years before he was served with a notice to appear.4 See 8 U.S.C. § 1229b(b)(l), (d)(1). Accordingly, the IJ entered a final order of removal.
Upon review, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. Rodriguez-Lopez now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Benshaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
On appeal, Rodriguez-Lopez first argues that the IJ who adjudicated his second asylum application, IJ Frederic *954Leeds, erred by “totally disregarding] the implicit findings of his predecessor.” (Br.13.) Although his argument is somewhat difficult to follow, Rodriguez-Lopez appears to suggest that IJ Leeds, in ruling on the merits of his asylum application, was bound by IJ Strasser’s earlier determination that Rodriguez-Lopez had established prima facie eligibility for asylum sufficient to warrant reopening. According to Rodriguez-Lopez, “Judge Leeds should have approved the application for asylum in this case if the facts adduced by the petitioner were consistent with those considered by Judge Strasser when he reopened this matter ... [because t]he prima facie case and the willingness to exercise judicial discretion were already established.” (Br.15.)
Rodriguez-Lopez misunderstands the nature of Judge Strasser’s decision to reopen his case. Simply stated, the decision to grant a motion to reopen is not a decision on the asylum application itself; to the contrary, the question presented in a motion to reopen is simply whether the evidence “reveals a reasonable likelihood that the statutory requirements for relief have been satisfied.” Sevoian v. Ashcroft, 290 F.3d 166, 173 (3d Cir.2002) (quoting In re S-V-, 22 I. & N. Dec. 1306 (BIA May 9, 2000)) (emphasis added). Indeed, the very purpose of a motion to reopen is to obtain a hearing on the merits of the application for asylum. In this case, Rodriguez-Lopez succeeded in establishing prima facie eligibility for asylum, but, after a hearing on his claims, was found to be not credible, and was denied relief. We see no error in this chain of events, and reject the notion that IJ Leeds was somehow bound by findings that IJ Strasser made in connection with the motion to reopen.
Rodriguez-Lopez next argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree, as the record reveals several inconsistencies in Rodriguez-Lopez’s story that he could not convincingly explain. Most significantly, although Rodriguez-Lopez testified at the hearing that he was attacked in Quetzaltenango because of his participation in the anti-government student organization, he did not mention this incident at all in his first application for asylum. Given that, as the IJ noted, this attack “really became the heart of’ his newly formulated asylum claim, we cannot disagree with the IJ that this inconsistency greatly undermined Rodriguez-Lopez’s credibility. See 8 U.S.C. § 1252(b)(4)(B). Therefore, we will defer to the agency’s findings. See Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir.2005).
Rodriguez-Lopez also alleges that the IJ committed several procedural errors during the December 27, 2006 hearing. First, he claims that Judge Strasser’s ruling on the motion to reopen is not part of the record. Contrary to his contention, however, that the administrative record includes the motion to reopen (AR 000521), the government’s opposition thereto (AR 000820), Rodriguez-Lopez’s response (AR 000764), and IJ Strasser’s order granting the motion (AR 000701). In any event, given that, as discussed above, IJ Leeds was not bound by IJ Strasser’s interpretation of the evidence presented in the motion to reopen, we fail to see how Rodriguez-Lopez could have been prejudiced by IJ Leeds’s alleged failure to review the reopening record.
Rodriguez-Lopez’s next argument appears to be that IJ Leeds improperly conducted the hearing under the “novel constitutional principle” that the government has a right to due process. (Br.23) This argument is based on the fact that “on at least two occasions Judge Leeds stated that the government had a right to due process!” (Br.23) (citing AR 000126, *955000176). Our review of the transcript, however, reveals that, in making the complained-of remarks, IJ Leeds was simply explaining that Rodriguez-Lopez’s failure to comply with the court’s rules could prejudice the government. (AR 000126, 000176.) Therefore, Rodriguez-Lopez was in no way prejudiced by these remarks, and his suggestion that IJ Leeds attributed rights to the government that it did not have is specious.
Rodriguez-Lopez also challenges the IJ’s decision to forego closing arguments at the end of the December 27, 2006 hearing. Here too, however, we fail to see how Rodriguez-Lopez could have been prejudiced by this decision. As his attorney conceded at the time, he had presented all of the evidence he wanted, had asked all of the questions he wanted, and had been able to present his expert witness. (AR 000262-63.) In any event, the IJ ultimately allowed counsel to make a summation in support of his applications, albeit at the second hearing. (AR 00076.) Therefore, this argument likewise fails.
Finally, Rodriguez-Lopez challenges the BIA’s order insofar as it affirms the IJ’s decision denying his application for cancellation of removal. Upon review, we agree with the BIA and IJ that Rodriguez-Lopez was not eligible for cancellation of removal because he had not been continuously present in the country for the requisite ten years. See 8 U.S.C. § 1229b(b)(l)(A). As the IJ explained, under the “stop-time” provision, 8 U.S.C. § 1229b(d)(l)(A), Rodriguez-Lopez’s period of continuous physical presence ended in 1997, when he was served with a notice to appear. (AR 000865.) Although he argues on appeal, as he did before the IJ, that he never conceded service of the notice to appear, we have held that a strong presumption of effective service of a notice of hearing arises when, as in this case, the notice is sent by certified mail. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 278 (3d Cir.2007). Because Rodriguez-Lopez failed to present evidence of non-delivery sufficient to overcome that presumption, we see no error in the agency’s determination that he did not meet the continuous presence requirement in 8 U.S.C. § 1229b(b)(l)(A).5
We have considered Rodriguez-Lopez’s remaining arguments and conclude that they are without merit. Therefore, we will deny the petition for review.
. Rodriguez-Lopez initially moved to reopen the proceedings so that he could apply for labor certification and adjustment of status. When the government opposed the motion on *952the ground that it was untimely, however, Rodriguez-Lopez stated that he also intended to seek asylum based on changed conditions in Guatemala. See 8 C.F.R. § 1003.2(c)(2), (3)(ii).
. On cross-examination, Rodriguez-Lopez clarified that he was not an official member of the organization because he was not enrolled at the university in which it was based. (AR 000173-178.)
. In an affidavit in support of his second application, Rodriguez-Lopez claimed that his "personal troubles began” after he had been seen posting signs on a wall during a "strike.” (AR 000509.)
. At the hearing on the application for cancellation of removal, the IJ also permitted counsel for Rodriguez-Lopez to make a closing argument, and submit an additional declaration, in support of his asylum case.
. Rodriguez-Lopez also argues that "the weight of authority supports granting asylum in this case," and cites to a number of cases in which Guatemalan citizens have been granted asylum. (Br.26.) Suffice it to say that, unlike Rodriguez-Lopez, none of these petitioners were found to be not credible.
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01-04-2023
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11-05-2022
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