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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 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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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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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Management Group, Inc. appeals the district court’s order granting judgment in favor of Continental Casualty Company and The Continental Insurance Company. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Koger Mgmt. Group, Inc. v. Cont’l Cas. Co., No. 1:08-cv-00301-LMB-JFA (E.D.Va. Mar. 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigel Clarke appeals the district court’s order denying his motion for discovery and to proceed in forma pauperis. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Clarke, No. 4:02-cr-00060-H-5 (E.D.N.C. Oct. 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ike Rayeford Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying his “Motion to Re-enter Previous Order of 24 June 2005.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Williams, Nos. 1:98-cr-00101-NCT-3; 1:02-cv-00359 (M.D.N.C. Jan. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd M. Jack appeals the district court’s order dismissing this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jack v. Dawson, No. 5:09-cv-00032-gec, 2009 WL 1451644 (W.D.Va. May 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
The judgment of the district court is affirmed. Appellant fails to show any *141ground of subject matter jurisdiction in federal court for her many complaints. Appellant Lemons has no standing to complain of the revocation of a supplier number of Experts Are Us. Nor has she shown that Experts Are Us would have a legal right of appeal and access to federal court.
AFFIRMED.
Pursuant to 5tii Cir. R. 47.5, the court has determined that this opinion should not be *141published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
Kenneth Johnson received a two-level sentence reduction under Amendments 706 and 711 to the Sentencing Guidelines, which the Sentencing Commission has declared to be retroactive. Johnson would like a reduction greater than the two levels permitted under the amended guidelines, but his position is foreclosed by United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), where we held that district courts lack the authority to impose sentences below the minimum amended guidelines range when ruling on sentencing reductions under 18 U.S.C. § 3582(c)(2).
The Supreme Court recently granted certiorari in United States v. Dillon, 572 F.3d 146 (3d Cir.2009), cert. granted, — U.S. —, 130 S.Ct. 797, — L.Ed.2d —(2009), which will address the issue Johnson raises. We therefore hold Johnson’s appeal until the decision in Dillon.
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ORDER
Bobby Lee Harrison, a pre-trial detainee at the Cook County Department of Corrections, alleges that county officials violated his constitutional rights to access the courts, free speech, and association by intentionally mishandling his mail. The district court dismissed his original complaint and an amended complaint for failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. Harrison appeals, and we affirm the district court’s judgment.
Harrison’s complaint alleged that the defendants opened his “legal mail” outside of his presence; refused to transmit mail that he attempted to file with the district court; and did not allow him to seal outgoing mail. The district court dismissed the complaint, ruling that (1) Harrison had not stated a claim for interference with his right of access to the courts because he had not identified any adverse effect on any litigation; (2) defendants had allegedly opened legal mail outside of Harrison’s presence only once, which did not violate his constitutional rights; and (3) the prohibition against sealing mail could not support a claim because security concerns permitted searches of outgoing mail. The court also dismissed Harrison’s amended *252complaint, which it concluded contained “essentially the same allegations as his original complaint.” Although the amended complaint identified more “legal mail” that defendants had opened outside of Harrison’s presence, the court ruled that there were still too few instances to state a constitutional claim.
In his appellate filings, Harrison provides more specifics about his grievance that the defendants refused to deliver mail to the district court. He asserts that, beginning in September 2007, he attempted four times to file a civil-rights suit in the district court, and that each time his mail was returned undelivered. Harrison asserts that the defendants intentionally pi’evented those mailings from ever reaching the court. Although his fifth attempt at mailing succeeded, launching No. 08 C 2140 six months after his first attempt, he claims that the defendants’ interference caused the district court to dismiss it.
We have allowed a plaintiff to revive a dismissed claim by asserting on appeal additional facts consistent with the original complaint, see Flying J Inc. v. City of New Haven, 549 F.3d 538, 542 n. 1 (7th Cir.2008); Joyce v. Morgan Stanley & Co., Inc., 538 F.3d 797, 801-02 (7th Cir.2008), but we have not fully analyzed the continuing force of those cases in light of Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), which emphasized “the importance of prompt dismissal of unmeritorious cases even if they are not frivolous,” Milam v. Dominick’s Finer Foods, Inc., 588 F.3d 955, 959 (7th Cir.2009). Nonetheless, even if we allow Harrison to supplement his complaint with his new assertions on appeal, those new assertions must be sufficient to state a claim for a violation of his right of access to the courts. That right is violated only when an inmate is deprived of access to courts and suffers actual injury as a result. See Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009). Iqbal and Twombly further require that Harrison’s assertions about actual injury be plausible.
The district court’s ruling in No. 08 C 2140 shows that Harrison’s claim that the defendants interfered with that suit by blocking his mail is implausible. According to the court in the earlier case, Harrison himself was at fault for the suit’s demise. The court dismissed it because “[although granted three extensions of time in which to do so, [Harrison] has failed to submit an amended complaint as directed,” asking instead for more time to obtain pens and postage. Noting that Harrison’s desire for pens and postage had not disabled him from filing multiple motions and initiating two new lawsuits, the court found Harrison, not the prison, at fault for the delay and dismissed the suit as a result. Harrison’s assertions on this appeal are therefore not plausible, even if considered, because he is collaterally es-topped from attacking the finding that he was at fault for the earlier suit’s dismissal. See Fed. Election Comm’n v. Al Salvi for Senate Comm., 205 F.3d 1015, 1020 (7th Cir.2000).
Harrison also asserts on appeal that the defendants opened his legal mail outside of his presence 15 times between May 2007 and March 2009 and thereby violated his right to access the court system. To ensure adequate access to the courts, an inmate has the right to have “legal” mail — mail designated as correspondence with an attorney, see Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir.2005)—opened in his presence. Most of Harrison’s letters are correspondence with a court and therefore do not qualify. *253The opening of the remaining correspondence with attorneys is also insufficient to state a claim because he does not allege any detriment to any legal claim. See Lewis, 518 U.S. at 351, 116 S.Ct. 2174; Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.1996).
Nor can the opening of these 15 pieces of mail outside of Harrison’s presence support claims for violations of his rights of free speech and free association. Although an allegation that prison officials regularly open privileged mail from an attorney may state such a claim, see Antonelli, 81 F.3d at 1431-32, only one item of mail from the law offices of Lawrence V. Jackowiak was actually marked as mail from an attorney. Its opening, by itself, does not show a continuing practice of opening privileged mail and therefore cannot support a free-speech or free-association claim. See Rowe v. Shake, 196 F.3d 778, 782 (7th Cir.1999); Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.1987). Nothing on the mail from the law firms of Schiff Hardin, LLP, and Loevy & Loevy stated that they were from Harrison’s attorney or that they were privileged, and therefore opening them outside of Harrison’s presence did not violate his rights. See Kaufman, 419 F.3d at 685-86. And no free-speech or free-association claims arose from the opening of the other 12 pieces of mail because they did not bear an attorney’s name and a warning that they were legal mail. See id. Harrison’s First Amendment rights did not preclude the defendants from examining them. Id. at 685.
The judgment of the district court is AFFIRMED. Harrison is assessed a “strike” for taking this appeal, see 28 U.S.C. § 1915(g); Campbell v. Clarke, 481 F.3d 967, 969 (7th Cir.2007), and as the district court warned, he has now “struck out.” As an inmate he may not file suit in federal court without prepayment of fees unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
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ORDER
Dontavis Williams was arrested after he arranged to buy ten kilograms of cocaine from a confidential source working with the government. He pleaded guilty to conspiring to possess drugs with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to the statutory minimum, 120 months in prison. In the plea agreement Williams waived all his appellate rights but filed a notice of appeal anyway. His appellate counsel requests permission to withdraw because he concludes that any challenge to the validity of the waiver would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Despite three extensions of time to respond to counsel’s submission, see Cir. R. 51(b), Williams has failed to file a response, and so we confine our review to the issues identified in counsel’s facially adequate brief. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Because the appeal waiver stands or falls with the plea, Nunez v. United States, 546 F.3d 450, 454 (7th Cir.2008), counsel first examines whether Williams has a basis to challenge the voluntariness of the plea. But counsel does not say whether Williams wants to withdraw his plea, see United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002), nor can we tell from Williams’s other filings whether he wishes to have his plea set aside.
Even if Williams wished to withdraw his plea, however, we agree with counsel that any challenge to the voluntariness of the plea would be frivolous. Because Williams did not move to withdraw his plea in the district court, we would review it for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 633 (7th Cir.2006). A district court ensures the voluntariness of a guilty plea by substantially complying with the admonishments listed in Rule 11 of the Federal Rules of Criminal Procedure. Schuh, 289 F.3d at 975. Although the plea colloquy was otherwise extensive, the court omitted reference to the right to have counsel appointed if necessary. Fed. R.Crim.P. 11(b)(1)(D). But Williams was aware that he had the right to an appointed lawyer because the court appointed a lawyer for him after he lost retained counsel. Additionally, the court did not inform *260Williams that it could order restitution or was obligated to impose a special assessment. Fed.R.CrimP. ll(b)(l)(K), (L). But the failure to mention the possibility of restitution was inconsequential because the court did not order restitution, and Williams knew about the special assessment from the plea agreement.
Counsel next proceeds to consider whether Williams would have any nonfriv-olous basis to challenge his sentence. But the appeal waiver precludes Williams from challenging “any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the máximums provided by law, and including any order of restitution or forfeiture.” Therefore, we need not examine the sentence any further. See United States v. Linder, 530 F.3d 556, 561 (7th Cir.2008).
The waiver does not apply to a claim of ineffective assistance of counsel regarding the waiver or its negotiation. But counsel correctly concludes that any such claim would rely on evidence outside the record, and so Williams would be better served by saving any ineffective-assistance claim for a collateral attack under 28 U.S.C. § 2255. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Accordingly we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
Lionel Trepanier was arrested after police officers in Blue Island, Illinois, encountered him on a city sidewalk pulling his two-year-old daughter in a wagon. The officers reported that the girl was naked and protected against the 53-degree October evening only by urine-soaked blankets. Trepanier was charged with contributing to the neglect of a child but eventually acquitted. He sued the arresting officers, the city, and others for alleged violations of his constitutional rights.1 In granting summary judgment for the defendants, the district court reasoned that Trepanier’s federal claims were precluded by a ruling in his criminal case that the officers had probable cause to stop and arrest him. Trepanier filed a postjudgment motion challenging the district court’s decision, and after that motion was denied, he filed a notice of appeal. In this court he argues that the grant of summary judgment was erroneous, but the defendants contend that the appeal is limited to the denial of Tre-panier’s postjudgment motion. We agree with the defendants, and because the district court did not abuse its discretion in denying that motion, we affirm the judgment.
The district court entered final judgment under Federal Rule of Civil Procedure 58 on September 29, 2008, 2008 WL 4442623. On October 17 the court received from Trepanier a pro se submission entitled “Motion for Reconsideration and for Leave To File a Brief and Memorandum in Support Within 21 Days.” That motion purports to rest on Federal Rule of Civil Procedure 59. The defendants had not filed a response when the court denied the motion without comment on October 27. Trepanier filed on November 26 a notice of appeal referencing the October 27 decision and the earlier grant of summary judgment.
The defendants argue that Trepanier’s postjudgment motion was filed too late to toll the time for appealing the underlying grant of summary judgment. A motion under Rule 59(e) to reconsider a judgment, if timely, causes the clock for appealing the underlying decision to reset if the post-judgment motion is denied. Fed. R.App. P. 4(a)(4)(A)(v); Borrero v. City of Chi., 456 F.3d 698, 699 (7th Cir.2006). Although Trepanier repeatedly states that he “filed” the motion on October 14, 2008, the tenth business day after entry of judgment, that was when he mailed his motion to the clerk of the district court. The “mailbox rule” that deems a Rule 59(e) motion filed upon its deposit in the mail applies only to *262prisoners reliant on the institution to mail court papers. See Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Edwards v. United States, 266 F.3d 756, 758 (7th Cir.2001). For all other litigants a paper is filed on the date it is delivered to the clerk of the court. Fed. R.CivP. 5(d)(2)(A); Raymond v. Ameritech Corp., 442 F.3d 600, 604-05 (7th Cir.2006); Johnson v. McBride, 381 F.3d 587, 589 (7th Cir.2004). Trepanier filed his motion thirteen days after the district court entered judgment (not including weekends and federal holidays), which made his motion untimely under the tenday limit then applicable. See Fed.R.CivP. 6(a)(2), 59(e) (2006 & Supp. 12007) (revised Dec. 1, 2009). (On December 1, 2009, the time allotted for filing a Rule 59(e) motion was increased from ten business days to 28 calendar days. Fed.R.Civ.P. 59(e), 6(a)(1).) Accordingly, the defendants argue, the time for Trepanier to appeal the grant of summary judgment was not tolled by the postjudgment motion and expired on October 30, 2008. See Fed. RApp. P. 4(a)(1)(A). Trepanier did not file his notice of appeal until November 26, and thus the defendants contend that this appeal is untimely as to the underlying judgment and valid only as to the denial of the postjudgment motion. And that ruling, the defendants insist, was not an abuse of discretion.
In reply Trepanier argues that the time limit in Rule 59(e) is a claims-processing rule, not a jurisdictional one. Thus, he continues, the defendants waived any objection to the untimeliness of his post-judgment motion by failing to object in the district court. He relies on a Sixth Circuit opinion, National Ecological Foundation v. Alexander, 496 F.3d 466, 473-76 (6th Cir.2007), which holds that the time limit in Rule 59(e) is indeed a claims-processing rule, and if the party opposing the motion waives an untimeliness objection, the motion is considered “timely” for purposes of tolling the time to appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(v). See also First Avenue West Building, LLC v. James (In re OneCast Media, Inc.), 439 F.3d 558, 562-63 (9th Cir.2006).
The Supreme Court recently iterated that many rules once thought to be jurisdictional are actually claims-processing rules that do not affect a federal court’s power to hear a case. Bowles v. Russell, 551 U.S. 205, 208-213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). And a claims-processing rule, unlike a jurisdictional provision, may be waived by a litigant who does not assert its protection. See Bowles, 551 U.S. at 213, 127 S.Ct. 2360; Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick v. Ryan, 540 U.S. 443, 447, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). But we need not decide whether Rule 59(e) is a jurisdictional rule or a claims-processing rule because, either way, the defendants did not waive the protection of the rule.
Taking his lead from National Ecological Foundation, Trepanier contends that the defendants waived the protection of the time limit for Rule 59(e) motions by not filing a response to his postjudgment motion. We disagree. In National Ecological Foundation the defendants had agreed not to contest the movants’ request for more time to file a Rule 59(e) motion and then, consistent with that agreement, opposed the motion on the merits, not as untimely. 496 F.3d at 473, 476; see also Eberhart, 546 U.S. at 13-14, 126 S.Ct. 403 (“Rather than arguing, however, that the untimeliness of the supplemental memorandum [to the defendant’s posttrial motion in a criminal case] barred the District Court from considering the issues it raised, the Government opposed it on the merits.”). Here, it is not clear that the defendants were even required to file a response because Trepanier did not follow the local rules of the district court and *263include with the motion a notice of presentment specifying when the motion will be presented. N.D. Ill. Loc. R. 5.3(b), 78.2. And under those same rules the absence of a response is not deemed to waive any objection to a postjudgment motion. N.D. Ill. Loc. R. 78.3; Garcia v. HSBC Bank USA N.A., No. 09-CV-1369, 2009 WL 4730961, at *2 n. 1 (N.D.Ill.2009); see also Bolt v. Loy, 227 F.3d 854, 856 (7th Cir.2000) (explaining that, if “the party opposing the motion thinks the motion’s lack of merit so patent that no response is required,” the district court “either orders the party to respond or decides the motion without the benefit of a response”). The defendants asserted the untimeliness defense before ever addressing the merits of Trepanier’s postjudgment motion either in this court or in the district court and therefore have not waived the defense, whether or not the time limit is a claims-processing rule. See United States v. Singletary, 471 F.3d 193, 196 (D.C.Cir.2006) (holding that government preserved untimeliness argument under Federal Rule of Appellate Procedure 4(b) by asserting contention before addressing merits of defendant’s appeal). Cf. Nat’l Ecological Found., 496 F.3d at 481 (Sutton, J., concurring) (asserting that panel should decline to decide whether Rule 59(e) is a claims-processing rule and instead “adhere to the straightforward practice we have long employed” and construe untimely Rule 59(e) motion as timely Rule 60(b) motion).
Accordingly, we conclude that Trepanier’s postjudgment motion, filed more than ten business days after entry of the underlying judgment, did not toll the time to appeal that decision. The notice of appeal covers only whether the district court properly denied Trepanier’s postjudgment motion. In the motion Trepanier set forth numerous purported errors in the court’s reasons for granting the defendants’ motion for summary judgment.
Because the defendants did not waive the time limit in Rule 59(e), the post-judgment motion must be construed as one under Rule 60(b). See Talano v. Nw. Med. Faculty Found., 273 F.3d 757, 762 (7th Cir.2001). We review the denial of a Rule 60(b) motion only for an abuse of discretion. Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir.2006). A litigant may not use Rule 60(b) to challenge errors that could have been brought in an appeal from the underlying judgment. Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 743 (7th Cir.2009); Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir.), cert. denied, — U.S. —, 129 S.Ct. 609, 172 L.Ed.2d 457 (2008). Trepanier challenged only the district court’s reasoning in the underlying judgment, errors that could have been raised in a timely appeal, and therefore the court properly denied the motion.
Accordingly, we AFFIRM the district court’s denial of Trepanier’s postjudgment motion.
. Trepanier’s daughter was a plaintiff in the district court, where she and her father were represented by an attorney. Trepanier is proceeding pro se on appeal, and because a non-lawyer parent may not represent a child, Navin v. Park Ridge Sch. Dist., 270 F.3d 1147, 1149 (7th Cir.2001), we dismissed the daughter's appeal after Trepanier failed to hire a lawyer to represent her. Accordingly, we discuss only Trepanier’s claims in this order.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Management Group, Inc. appeals the district court’s order granting judgment in favor of Continental Casualty Company and The Continental Insurance Company. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Koger Mgmt. Group, Inc. v. Cont’l Cas. Co., No. 1:08-cv-00301-LMB-JFA (E.D.Va. Mar. 5, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nigel Clarke appeals the district court’s order denying his motion for discovery and to proceed in forma pauperis. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Clarke, No. 4:02-cr-00060-H-5 (E.D.N.C. Oct. 15, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ike Rayeford Williams appeals the district court’s order accepting the recommendation of the magistrate judge and denying his “Motion to Re-enter Previous Order of 24 June 2005.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Williams, Nos. 1:98-cr-00101-NCT-3; 1:02-cv-00359 (M.D.N.C. Jan. 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Todd M. Jack appeals the district court’s order dismissing this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jack v. Dawson, No. 5:09-cv-00032-gec, 2009 WL 1451644 (W.D.Va. May 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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PER CURIAM: *
IT IS ORDERED that appellant’s unopposed motion to vacate the judgment of the district court is GRANTED.
IT IS FURTHER ORDERED that appellant’s unopposed motion to remand the case to the district court for reconsideration of the sentence, in light of USA v. Jeffries, is GRANTED.
IT IS FURTHER ORDERED that appellant’s unopposed motion to expedite the ruling on motion to vacate, etc., is MOOT.
IT IS FURTHER ORDERED that appellant’s unopposed motion to issue the mandate forthwith is GRANTED.
Pursuant to 5tii Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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PER CURIAM: *
The judgment of the district court is affirmed. Appellant fails to show any *141ground of subject matter jurisdiction in federal court for her many complaints. Appellant Lemons has no standing to complain of the revocation of a supplier number of Experts Are Us. Nor has she shown that Experts Are Us would have a legal right of appeal and access to federal court.
AFFIRMED.
Pursuant to 5tii Cir. R. 47.5, the court has determined that this opinion should not be *141published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
Margaret Seamon first applied for disability insurance benefits in June 2002, asserting that she had been unable to work since the beginning of that year because of numerous physical and mental health problems, in particular chronic pain from back and neck injuries, depression, and anxiety disorders. The administrative law judge (“ALJ”) initially denied her claim, but she appealed to the district court and won a remand for further proceedings. The second time around the ALJ returned a partially favorable decision, awarding benefits as of October 6, 2006 (the date on which her advanced age qualified her as disabled), and denying benefits for any earlier time. Upon Seamon’s second appeal, the district court affirmed. She has now turned to this court for further review. Because the ALJ’s decision is supported by substantial evidence, we affirm.
I
In December 2001, while working as an office clerk, Seamon (then 49 years old) suffered a slip-and-fall accident on the job that resulted in injuries to her neck, arm, and shoulder. The accident also exacerbated other underlying knee, back, and chronic pain issues that had plagued her for years. Hoping to obtain an accurate diagnosis and an effective treatment plan for her pain, Seamon made countless trips to various doctors.
As of the time of the accident, Seamon already had a long history of depression, post-traumatic stress disorder (“PTSD”), and anxiety disorders. After the accident, she lost her job in January 2002 because of excessive absenteeism. Stress over the job loss, plus the pain from her accident, then precipitated a marked deterioration in her mental health. Prior to the accident, her mental health problems had been managed adequately with medication and counseling, but by May 2002, her feelings of intense anger and hopelessness prompted her to seek more extensive treatment from psychiatrist Dr. John Bartholow and regular counseling services from psychologist Scott Phillips.
Seamon’s depression worsened in the fall of 2002. She continued to see Dr. Bartholow and Phillips, to whom she described increased feelings of despair, self-imposed social isolation, anger, and problems with memory and concentration. Dr. Bartholow made several adjustments to her medication. She reported some benefits from this, but she also experienced more frequent thoughts of suicide and appeared more tearful, overwhelmed, and frustrated at appointments. Dr. Bartho-low added a diagnosis of possible bipolar disorder after Seamon prompted Phillips to complete a screening diagnostic for that condition. Phillips commented that Seam-on took a dramatic approach to the test and endorsed every symptom of mania or hypomania.
Around the same time, Seamon was also evaluated by a number of state agency doctors, including Dr. Richard Führer. Dr. Führer found that while Seamon was generally very pleasant, her mood fluctuated greatly, and she expressed intense anger when discussing prior instances of *246mistreatment. He administered the Minnesota Multiphasic Personality Inventory (“MMPI-II”) and the Millón Clinical Multiaxial Inventory-Ill, but he concluded that any results were of questionable validity because Seamon exaggerated in her responses and claimed to have a “tremendous number of symptoms” that were inconsistent across the two tests. Yet he also reported that Seamon scored a 50 on the Global Assessment of Functioning (“GAF”) test, indicating a serious level of depression.
Meanwhile, Seamon was becoming frustrated with her doctors and their apparent lack of support for her disability application. In November 2002 she abruptly ended treatment with Dr. Bartholow and Phillips after leaving an angry voice message for Phillips accusing him of betrayal. Seamon explained that she had stopped taking her medications and refused to return for therapy because she could not trust anyone. The last proved to be an overstatement: five days later, she reiniti-ated treatment with a former psychiatrist.
From December 2002 through February 2003, Seamon experienced severe mental health problems. She was admitted to the emergency room twice for suicidal thoughts and an attempted overdose of sleeping pills, and the hospital doctors reported that her mental health had become more fragile. Her condition improved, however, and she was discharged from the hospital several days later. After her second hospitalization Seamon stopped taking her medications regularly and decided to have her psychiatric problems treated exclusively by her primary care physician.
During her first hearing before the ALJ in October 2003, Seamon said that her mental condition was improving; for that reason, she initially requested benefits only through June of that year. She explained that it was her inability to find a job and the changes in her medication that caused the temporary decline in her mental health. After performing the requisite five-step analysis, see 20 C.F.R. § 404.1520, the ALJ concluded that: (1) Seamon had not engaged in gainful work since January 2002; (2) she had a number of severe physical and mental health problems; (3) none of these issues either individually or in combination met the listing requirements in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) Seamon had the residual functional capacity (“RFC”) to perform unskilled work subject to a number of postural and environmental limitations in addition to restrictions of “brief and superficial contact with the public” and “no high production goals”; and (5) Seamon was not disabled because a person of her age, education, work experience, and RFC could perform a significant number of jobs.
On appeal, the district court remanded the case, because the ALJ had not obtained a proper waiver of counsel and had given too much weight to Seamon’s un-counseled statements about improvements in her condition. The court also thought that the ALJ had not defined her RFC properly, because he had restricted only her contact with the public, and he should have included a similar restriction on contact with coworkers and supervisors.
During the hearing on remand, the ALJ told the vocational expert (“VE”) that the key question was whether jobs existed for someone who was limited to “brief and superficial contact with others in the work place.” The VE concluded that there were such jobs, including those of a shoe brasher or a cafeteria attendant. On cross-examination Seamon’s attorney asked the VE whether a person who could not keep pace or “do 80 percent or 75 percent of what is normally expected” would be able to perform either job. The VE replied in the negative. Seamon pressed him to ex*247plain what percentage of work an employee must be able to do and the VE responded ‘TOO percent.” Seamon also asked whether an employee could still do the identified jobs if she was involved in altercations at work, and the VE admitted that such behavior would also eliminate those jobs.
In December 2006, after the second hearing but before the ALJ’s decision, Seamon solicited a supplemental psychiatric evaluation from Dr. Paul Caillier. Dr. Caillier conducted one clinical examination and quickly reviewed a small sample of Seamon’s medical records through late 2002. He concluded that Seamon’s MMPI-II results indicated she suffered from a somatoform disorder, and that the medical records showed that Seamon’s mental health had gradually deteriorated to a point where she was “now totally unemployable.”
Dr. Caillier’s report was submitted to the ALJ, who again went through the five-step process. This time the ALJ found Seamon disabled as of October 6, 2006. In so finding, however, he did not rely on Dr. Caillier’s report. Instead, he concluded that Seamon’s age had become the definitive factor. The Medical-Vocational Guidelines list new disability criteria for people over 55, and, knowing that Seam-on’s disability coverage would expire in December of 2006, the ALJ exercised his discretion under 20 C.F.R. § 404.1563(b) to deem Seamon of “advanced age” six months before her 55th birthday (April 6, 2007). Although the ALJ recognized that Seamon’s condition was more severe in late 2002 and early 2003, when she attempted suicide, that period did not meet the 12-month durational requirement described in 42 U.S.C. § 423(d)(1)(A), nor was it representative of the typical severity of her mental illness. The ALJ also noted that Dr. Caillier’s findings in December 2006 were consistent with his decision to grant disability benefits beginning in October of that year.
In reaching this result the ALJ discredited much of Seamon’s testimony, finding numerous inconsistencies between her assertions about the severity of her mental health problems and the objective medical evidence. Seamon’s failure to take her prescribed medications and her decision to discontinue specialized psychiatric treatment after her hospitalizations, in his view, indicated that her mental health problems were not disabling. The ALJ also noted that Seamon’s doctors reported that she had exaggerated her symptoms, and that her participation in two social outings undermined her claims of total social isolation.
II
Seamon offers a number of reasons why we should find that the ALJ erred, but our review is deferential, and this is a case with an extensive factual record. We ask only whether substantial evidence supported the ALJ’s conclusion. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir.2008).
Seamon begins with the argument that the ALJ erred when, allegedly relying only on his own lay opinion, he formulated her RFC and included only two mental-health limitations, in the areas of social functioning and concentration, persistence, and pace. Evidence in the record, Seamon urges, shows that her RFC should also have reflected her anger, anxiety, moodiness, and social difficulties.
An ALJ may not “play doctor” by substituting his opinion for that of a physician. Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.2003). The ALJ, however, is not only allowed to, but indeed must, weigh the evidence and make appropriate inferences from the record. See Young v. *248Barnhart, 362 F.3d 995, 1001 (7th Cir.2004). We conclude that the ALJ’s determination of Seamon’s RFC is supported by substantial evidence in the record. The opinion reflects a thorough review of Seamon’s medical records and a reasonable weighing of the evidence both for and against greater RFC limitations. For example, in determining that a moderate limitation on social functioning was appropriate, the ALJ noted that although Seamon’s doctors observed moodiness, poor interpersonal skills, and frequent anger, they also reported that she was typically bright, cooperative, and pleasant. Similarly, the ALJ compared Seamon’s testimony about her memory problems and inability to concentrate on a television program for more than a few minutes with reports from Drs. Führer and Caillier concluding that she demonstrated acceptable levels of concentration. With that evidence in mind, he found that a moderate limitation in concentration, persistence, and pace was appropriate.
In focusing on selections from her medical records that reflect the most serious or extreme descriptions of her mental health problems, Seamon herself ignores significant evidence contradicting her position. In particular, we are not persuaded by Seamon’s arguments that Dr. Caillier’s psychiatric evaluation supports more extensive RFC limitations. Dr. Caillier was a non-treating physician, and his supplemental report, based on a limited examination and review of Seamon’s medical history, deserves little weight.
Second, Seamon criticizes the hypotheti-cals the ALJ posed to the VE. The ALJ, she charges, did not properly account for the medical evidence documenting her most severe mental health symptoms. Mirroring her point about the RFC determination, she argues that the hypotheticals should have included additional restrictions targeted at her difficulty handling anger and stress.
Ordinarily, an ALJ’s hypothetical questions to a vocational expert “must include all limitations supported by medical evidence in the record.” Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002). The reference to “all” limitations, however, does not encompass those that find no support in the record; the ALJ’s hypothetical should incorporate only those limitations that he accepts as credible. Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir.2007).
Here, the hypotheticals reflected the two limitations the ALJ included in Seam-on’s RFC; nothing more was required. The ALJ accounted for Seamon’s moderate limitation in social functioning by restricting her to “brief and superficial contact with others,” and the ALJ captured her moderate limitation in concentration, persistence, and pace when he included a restriction of “no high production goals.” Compare Britton v. Astrue, 521 F.3d 799, 802 (7th Cir.2008) (restricting contact with public and interaction with coworkers); Arnold v. Barnhart, 473 F.3d 816, 820 (7th Cir.2007) (using low production standards for moderate limitation in concentration, persistence, and pace); Schmidt, 496 F.3d at 844-45 (using low production goals to account for problems with stress). We recognize that Seamon suffered in the past from serious problems, but we are satisfied that the ALJ adequately considered her overall mental health from 2002 through 2006 and included in his hypotheticals the limitations that were supported by the record.
Next, Seamon argues that the ALJ committed reversible error at step five when he supposedly ignored testimony from the VE stating that Seamon’s moderate limitations rendered her incapable of performing the two jobs he identified. Although it is true that an ALJ cannot ignore an entire *249line of evidence, see Diaz v. Chater, 55 F.3d 300, 307 (7th Cir.1995), Seamon’s argument reads too much into the VE’s statement. She is referring to the exchange mentioned above, in which the VE was asked “what percentage do you have to do of what’s expected of you, is there a range?” The VE responded, “Well, I would think it would be 100 percent.” Seamon interprets this exchange as a statement by the VE that a person in the jobs that the VE identified must stay on task 100% of the time—no coffee breaks, no lunch break, nothing. But no employer has such extreme expectations. Read sensibly, the VE appears to have been saying only that a person must “meet expectations” of the employer—that is, perform all aspects of the job competently, show up for work regularly, and so forth.
Seamon also argues that the ALJ should have found her disabled at step five based on the VE’s testimony that an employee would be unable to do the two identified jobs if she were involved in altercations at work. But there is no evidence that Seamon’s mental health problems would lead to altercations at work and, thus, the premise for counsel’s questions was unsupported by the record.
Seamon’s fourth argument rests on the uncontested point that the ALJ failed to perform his affirmative duty to ask about any conflicts between the VE’s testimony and the descriptions of the identified jobs in the Directory of Occupational Titles (“DOT”). SSR 00-4p; see also Overman, 546 F.3d at 462-63. Seamon argues that the positions of shoe brusher and cafeteria attendant correspond to DOT job classifications that involve either “serving” and “taking instructions and helping.” This demonstrates, in her opinion, that both positions require more than “brief and superficial contact with others” and thus that they should have been excluded given her RFC. Furthermore, she argues that these positions necessarily require frequent overhead reaching, which the ALJ also precluded in the RFC.
We do not read the DOT descriptions as expansively as Seamon does. Neither position requires more than brief contact with others, and, even though the brusher position may require significant lateral reaching, there is no evidence that either position would require frequent overhead reaching. Because there is no actual conflict between the VE’s testimony and the DOT, the ALJ’s oversight is harmless error. See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir.2009).
Finally, Seamon argues that the ALJ improperly discredited her testimony. She challenges three of the reasons the ALJ cited for his adverse credibility finding. First, Seamon claims that the ALJ should have considered whether her mistrust of psychiatrists prevented her from seeking consistent treatment and from taking her medication regularly. Next, she suggests that the ALJ failed to decide whether the evidence of symptom exaggeration could be explained by Dr. Caillier’s diagnosis of a somatoform disorder. Finally, she argues that the ALJ erred by finding that her participation in two social outings was inconsistent with the social isolation she experienced as a result of her depression and anxiety disorders.
In assessing a claimant’s credibility, the ALJ must consider several factors, including the claimant’s daily activities, the degree of her pain or intensity of her symptoms, aggravating factors, medications, and treatment. 20 C.F.R. § 404.1529(c); S.S.R. 96-7p. The ALJ is required to support his finding with specific reasons, see Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.2009), and we defer to that determination unless it is found “patently *250wrong,” see Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir.2006). An ALJ may not ignore a claimant’s subjective reports of pain or mental impairments simply because they are not fully supported by objective medical evidence, but discrepancies between objective evidence and self-reports may suggest symptom exaggeration. See Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir.2005).
Seamon’s point about the ALJ’s error with respect to her social outings is well taken. Nevertheless, taken alone, this is not enough to support reversal. It is true that an ALJ must consider whether any noted symptom exaggeration could reasonably be attributed to a claimant’s diagnosed somatoform disorder. See Carradine v. Barnhart, 360 F.3d 751, 754-55 (7th Cir.2004). But in this case the ALJ properly gave Dr. Caillier’s somatoform diagnosis limited weight because he was a non-treating physician and his diagnosis, which was not made until December 2006, was of little relevance to the observations of symptom exaggeration made years earlier by the treating physicians. In addition, although Seamon suggests that her mistrust of doctors may have prevented her from seeking treatment, the evidence that she restarted treatment with a new psychiatrist days after leaving Dr. Bartho-low and Phillips contradicts her claim. Overall the ALJ’s credibility determination reflects a careful consideration of Seam-on’s medical records and thus deserves deference.
We Affirm the judgment of the district court.
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ORDER
Kenneth Johnson received a two-level sentence reduction under Amendments 706 and 711 to the Sentencing Guidelines, which the Sentencing Commission has declared to be retroactive. Johnson would like a reduction greater than the two levels permitted under the amended guidelines, but his position is foreclosed by United States v. Cunningham, 554 F.3d 703 (7th Cir.2009), where we held that district courts lack the authority to impose sentences below the minimum amended guidelines range when ruling on sentencing reductions under 18 U.S.C. § 3582(c)(2).
The Supreme Court recently granted certiorari in United States v. Dillon, 572 F.3d 146 (3d Cir.2009), cert. granted, — U.S. —, 130 S.Ct. 797, — L.Ed.2d —(2009), which will address the issue Johnson raises. We therefore hold Johnson’s appeal until the decision in Dillon.
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ORDER
Dontavis Williams was arrested after he arranged to buy ten kilograms of cocaine from a confidential source working with the government. He pleaded guilty to conspiring to possess drugs with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to the statutory minimum, 120 months in prison. In the plea agreement Williams waived all his appellate rights but filed a notice of appeal anyway. His appellate counsel requests permission to withdraw because he concludes that any challenge to the validity of the waiver would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Despite three extensions of time to respond to counsel’s submission, see Cir. R. 51(b), Williams has failed to file a response, and so we confine our review to the issues identified in counsel’s facially adequate brief. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Because the appeal waiver stands or falls with the plea, Nunez v. United States, 546 F.3d 450, 454 (7th Cir.2008), counsel first examines whether Williams has a basis to challenge the voluntariness of the plea. But counsel does not say whether Williams wants to withdraw his plea, see United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002), nor can we tell from Williams’s other filings whether he wishes to have his plea set aside.
Even if Williams wished to withdraw his plea, however, we agree with counsel that any challenge to the voluntariness of the plea would be frivolous. Because Williams did not move to withdraw his plea in the district court, we would review it for plain error. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 633 (7th Cir.2006). A district court ensures the voluntariness of a guilty plea by substantially complying with the admonishments listed in Rule 11 of the Federal Rules of Criminal Procedure. Schuh, 289 F.3d at 975. Although the plea colloquy was otherwise extensive, the court omitted reference to the right to have counsel appointed if necessary. Fed. R.Crim.P. 11(b)(1)(D). But Williams was aware that he had the right to an appointed lawyer because the court appointed a lawyer for him after he lost retained counsel. Additionally, the court did not inform *260Williams that it could order restitution or was obligated to impose a special assessment. Fed.R.CrimP. ll(b)(l)(K), (L). But the failure to mention the possibility of restitution was inconsequential because the court did not order restitution, and Williams knew about the special assessment from the plea agreement.
Counsel next proceeds to consider whether Williams would have any nonfriv-olous basis to challenge his sentence. But the appeal waiver precludes Williams from challenging “any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the máximums provided by law, and including any order of restitution or forfeiture.” Therefore, we need not examine the sentence any further. See United States v. Linder, 530 F.3d 556, 561 (7th Cir.2008).
The waiver does not apply to a claim of ineffective assistance of counsel regarding the waiver or its negotiation. But counsel correctly concludes that any such claim would rely on evidence outside the record, and so Williams would be better served by saving any ineffective-assistance claim for a collateral attack under 28 U.S.C. § 2255. Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
Accordingly we GRANT counsel’s motion to withdraw and DISMISS the appeal.
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ORDER
The parties having so agreed, it is
*46ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b).
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ORDER
Gary Williams, a federal pretrial detainee, filed an amended petition for a writ of habeas corpus, 28 U.S.C. § 2241, claiming that his continued confinement violates his statutory right to a speedy trial. Williams filed his petition in the Northern District of Illinois while confined temporarily in Chicago, but the underlying prosecution is in the Eastern District of Virginia. He seeks dismissal of the indictment. The district court denied the petition without prejudice to Williams seeking relief in the district where the prosecution is pending.
Even though Williams mentions the Sixth Amendment in his appellate brief, his petition was premised entirely on the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74. By failing to develop a constitutional argument, Williams waived any Sixth Amendment claim. See United States v. Loera, 565 F.3d 406, 412 (7th Cir.), cert. denied, — U.S. —, 130 S.Ct. 654, —L.Ed.2d — (2009). As for the statutory claim, the Speedy Trial Act allows dismissal of an indictment if the time constraints of the Act are not followed, 18 U.S.C. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462 (7th Cir.2009), but a district court in Chicago has no authority to dismiss an indictment pending in another district, see United States v. Green, 499 F.2d 538, 539 (D.C.Cir.1974). In any event, a federal pretrial detainee cannot use § 2241 to preempt the judge presiding over the criminal case. See Jones v. Perkins, 245 U.S. 390, 391-92, 38 S.Ct. 166, 62 L.Ed. 358 (1918) (“It is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of a trial.”); Fassler v. United States, 858 F.2d 1016, 1018-19 (5th Cir.1988) (per curiam) (stating that federal defendants cannot use § 2241 to challenge pretrial detention orders that can be chal*269lenged under 18 U.S.C. § 3145); United States v. Pipito, 861 F.2d 1006, 1009 (7th Cir.1987) (same). Accordingly, the dismissal of Williams’s petition is AFFIRMED.
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ORDER
Katherine Overstreet claims that she was disabled by ulcerative colitis; back, neck, knee, and elbow pain; kidney problems; high blood pressure; depression; and memory problems. The Social Security Administration and an administrative law judge (“ALJ”) denied her claims, and the district court affirmed the ALJ’s decision. Mrs. Overstreet appeals, asserting *273that the ALJ committed several errors. We affirm the district court’s judgment.
Mrs. Overstreet, who was born in 1958, applied in May 2003 for supplemental security income and disability insurance benefits, alleging that she had been disabled since March 2000. (She had previously filed disability applications in 1997 and 2000; those applications were denied in 1999 and 2002, respectively.) After the Social Security Administration denied her 2003 applications, she received a hearing before an ALJ in December 2005, at which she amended the claimed onset date of her disability to July 2003.
Mrs. Overstreet testified at the hearing that she stopped working as a data-entry clerk in July 2003 and began working again in May 2004 in customer care at the Moline/Quad Cities airport. She worked 24 hours a week driving a golf cart to transport passengers who needed rides within the airport. She sometimes had to push passengers in wheelchairs, a job that was hard on her back, arms, and legs. Her work sometimes also required her to stand or sit at a podium for a six-hour shift checking passengers’ boarding passes and identification.
Mrs. Overstreet testified that she could walk for less than half a block, stand for less than two minutes, and sit for less than two minutes before feeling pain. She said she had difficulty bending, kneeling, and climbing stairs, but no problems using her hands. Mrs. Overstreet testified that she could lift “Less than two pounds, three pounds, four pounds.” She also said that she often experienced headaches and had trouble remembering things because of her pain and high blood pressure. She added that she sometimes had trouble keeping her mind on things- — “You just get depressed, and you just kind of drift off at times” — but said she had no problems understanding things.
The ALJ posed a hypothetical question to George Paproeki, a vocational expert who testified at the hearing. The question envisioned a 47-year-old woman with Mrs. Overstreet’s past work experience and impairments: ulcerative colitis, degenerative disc disease at the cervical spine, degenerative changes to the lumbar spine, a history of fibromyalgia, hypertension, chronic headaches, and a history of depression. The woman could not lift more than 10 pounds or stand or walk more than two hours in an eight-hour day; would need “to alternate sitting or standing” at one-hour intervals; and could only occasionally bend, squat, or crawl. The woman would also need to avoid climbing and rapid changes of position, and would require access to a restroom. She would be able to do work of the same degree of skill, complexity, and detail that Mrs. Overstreet had done in the past. The vocational expert testified that such a woman could perform Mrs. Overstreet’s past jobs of data-entry clerk and administrative assistant, both of which were sedentary.
The ALJ denied Mrs. Overstreet’s claim under the required five-step analysis. See 20 C.F.R. §§ 404.1520, 416.920. He found, based on her earnings, that Mrs. Over-street performed substantial gainful activity from January 2005 to December 2005 and thus was not disabled during that period (step one). He then analyzed her claim of disability between July 2003 and December 2004 and found that Mrs. Over-street had a combination of severe impairments (step two); that she did not have an impairment or combination of impairments that met the criteria of any listed impairments (step three); and that she retained the residual functional capacity to perform past relevant work as a data-entry clerk or administrative assistant (step four) and other work in the national economy (step five). The Appeals Council denied Mrs. *274Overstreet’s request for review of the ALJ’s decision, making the ALJ’s decision the Commissioner’s final decision. The district court affirmed with a detailed and thoughtful opinion that has made our task considerably easier.
The standard for disability claims under the Social Security Act is stringent. The Act does not contemplate degrees of disability or allow for an award based on partial disability. Stephens v. Heckler, 766 F.2d 284, 285 (7th Cir.1985). Even claimants with substantial impairments are not necessarily entitled to benefits, which are paid for by taxes, including taxes paid by those who work despite serious physical or mental impairments and for whom working is difficult and painful. We uphold an ALJ’s decision if substantial evidence— evidence a reasonable mind might accept as adequate — supports it. See 42 U.S.C. § 405(g); Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.2009). The ALJ must provide a “logical bridge” between the evidence and his or her conclusions. Id; Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.2000). We view the record as a whole but do not re-weigh the evidence or substitute our judgment for the ALJ’s. Terry, 580 F.3d at 475.
I. Opinions of State-Agency Psychologists
Mrs. Overstreet first argues that the ALJ erred in determining that she was not disabled by ignoring the conclusions of two state-agency psychologists in 2000 that her depression moderately restricted her daily living, caused her moderate difficulty in maintaining social functions, and caused either moderate (according to one psychologist) or marked (according to the other) deficiencies in concentration, persistence, or pace.
Recall, however, that Mrs. Overstreet had amended the onset date of her disability from 2000 to 2003. The ALJ limited evidence created before the claimed onset date “to the purpose of providing a foundation for consideration of the claimant’s current disability status.” (Emphasis added.) (The psychologists’ conclusions from 2000 were considered as part of her previous disability claim, which was denied in 2002.) The ALJ in this case found that Mrs. Overstreet’s impairments included a history of depression rather than depression itself. Nothing in the record indicates that she received mental health treatment during the claimed disability period or that the limitations from 2000 persisted after the 2003 onset date.
Substantial evidence supported the ALJ’s conclusion that Mrs. Overstreet’s depression did not limit her ability to work. He noted that in 2003 Mrs. Over-street told her primary care provider, Dr. K.N. Kacha, that she was depressed. An exam at that time indicated that Mrs. Overstreet’s mood and affect were abnormal, but her judgment, insight, orientation to time, place, and person, and her recent and remote memory were all normal. Mrs. Overstreet herself testified that she had trouble remembering day-to-day things because of her pain and high blood pressure and that she had trouble keeping her mind on things because she got depressed. But she said she had no trouble understanding things and that when she felt stress at work, she would “suck it in” and continue her job “because I love people, and I’m not going to make them wait because I don’t feel good.”
II. Conflict Between Vocational Expert’s Testimony and the Dictionary of Occupational Titles
Mrs. Overstreet next argues that the ALJ violated Social Security Ruling 00-4p when he failed to ask the vocational expert whether his testimony conflicted *275with the Dictionary of Occupational Titles (“DOT”). The vocational expert concluded that the worker in the ALJ’s hypothetical question could do sedentary work. Mrs. Overstreet contends that the expert’s testimony assumed from the ALJ’s question a need for the worker to alternate sitting and standing every hour and thus conflicted with the DOT’S description of sedentary work as work that “involves sitting most of the time, but may involve walking or standing for brief periods of time.” Dictionary of Occupational Titles, Appendix C, 1991 WL 688702 (Westlaw).
An ALJ has an affirmative responsibility to ask a vocational expert about any possible conflict between evidence the vocational expert provides about a job’s requirements and information in the DOT. If the expert’s testimony “appeal’s to conflict with the DOT,” the ALJ “will obtain a reasonable explanation for the apparent conflict.” SSR 00-4p. But not asking a vocational expert about a conflict is a harmless error if there is no actual conflict. See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir.2009).
There was no conflict here. The record shows that the ALJ’s question did not require the worker to alternate every hour between sitting and standing; the context of the question establishes that the ALJ was referring to hourly breaks from sitting or standing. The ALJ, in fact, clarified for the vocational expert that the worker would be able to stand or walk for two hours and sit for six hours in an eight-hour day. R. 885. The vocational expert then testified that if the worker could “take a short break after an hour,” the worker could perform Mrs. Overstreet’s sedentary and past relevant work as a data-entry clerk or administrative assistant. Because that testimony is compatible with the DOT’S description of sedentary work, see Terry, 580 F.3d at 478, and because the DOT’S description did not conflict with the limitations imposed by the ALJ in his hypothetical question, see Ketelboeter v. Astrue, 550 F.3d 620, 625-26 (7th Cir.2008), the AL J’s failure to ask was a harmless error.
III. The ALJ’s Credibility Finding
Mrs. Overstreet also argues that the ALJ failed to comply with Social Security Ruling 96-7p by improperly discrediting her testimony without analyzing her pain in light of the medical evidence. In particular, she points to a review of her medical records by Dr. George Kudirka and Dr. Francis Vincent, state-agency doctors who opined that Mrs. Overstreet’s complaints — that she could not sit or stand for long periods, or walk more than half a block, because of pain in her neck, back and legs — were consistent with her colitis, degenerative disc disease, and fibromyalgia.
In evaluating the credibility of Mrs. Overstreet’s statements about her impairments and their effect on her ability to work, the ALJ had to consider all of the evidence in the record, including medical signs and laboratory findings, opinions provided by treating and examining physicians and psychologists, and statements or reports by Mrs. Overstreet and those who treated or examined her about her medical history, treatment, work history, daily activities, and ability to work. SSR 96-7p. A reviewing court may reverse an ALJ’s credibility determination only if it is so lacking in explanation or support that it is “patently wrong.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir.2009); Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.2008).
There is more than adequate support for the ALJ’s credibility determination in this case. Although he noted that Mrs. Over-street claimed that she felt pain after walking less than half a block, or standing *276or sitting for less than two minutes, the ALJ also observed — as he was permitted to do — that she was able to sit for the length of the hearing, which lasted about an hour. See SSR 96-7p (“In instances where the individual attends an administrative proceeding conducted by the adjudicator, the adjudicator may also consider his or her own recorded observations of the individual as part of the overall evaluation of the credibility of the. individual’s statements.”). The ALJ further noted that treatment records did not corroborate the pain and restrictions that Mrs. Over-street alleged. Despite her statement in October 2005 that she had seen countless doctors with no relief for her pain, the record did not contain records from numerous healthcare providers. According to the physician she saw in November 2002 for her headaches, she did not follow through on the physician’s recommendations of pain clinics and an epidural injection. Even more important, no physician had opined that she was totally disabled or recommended treatment suggesting it.
The ALJ’s assessment of Mrs. Over-street’s capacity and limitations tracks that of Dr. Kudirka and Dr. Vincent, which belies her argument that the ALJ ignored their opinions. The doctors affirmed an assessment of Mrs. Overstreet’s residual functional capacity in July 2003 concluding — in contrast to Mrs. Overstreet’s testimony that she could lift less than two or four pounds — that she could frequently lift less than 10 pounds and could occasionally lift 10 pounds. The ALJ made a similar assessment. The doctors agreed that with normal breaks, Mrs. Overstreet could stand or walk for at least two hours and sit for about six hours in an eight-hour workday. The ALJ made the same assessment. And the doctors agreed that the evidence supported a residual functional capacity that included sedentary work.
IV. The ALJ’s Residual Functional Capacity Assessment
Finally, Mrs. Overstreet argues that the ALJ’s assessment of her residual functional capacity was flawed because the ALJ: (1) “played doctor” and arbitrarily found that she needed to alternate sitting and standing every hour; (2) relied on her part-time work at the airport to find that she could work full-time; (3) did not include limitations from her headaches and limited range of motion in her neck in his assessment; and (4) did not properly consider her pain from the combined effect of all of her impairments.
The ALJ did not play doctor; his findings were consistent with testimony and medical evidence, as required. See Hopgood v. Astrue, 578 F.3d 696, 702 (7th Cir.2009). As explained, the ALJ’s finding that Mrs. Overstreet needed “to alternate sitting and standing at one hour intervals” referred to hourly breaks from sitting or standing — not to a need to alternate each hour between sitting and standing — and came after the ALJ observed her sitting for approximately an hour. Although medical reports noted that pain prevented Mrs. Overstreet from sitting or standing for long periods of time, no doctor suggested that she needed breaks more frequently than once an hour. And the ALJ found that she could stand or walk for only two hours in an eight-hour workday and needed to sit for at least six hours. Dr. Kudir-ka and Dr. Vincent drew the same conclusion.
The ALJ also properly considered Mrs. Overstreet’s part-time work in his assessment. Although a claimant with a job may still be found disabled, see Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir.2005), an ALJ’s assessment of residual functional capacity must be based on the relevant evidence in the record, which includes “re*277ports of daily activities” and “evidence from attempts to work,” see SSR 96-8p. It was reasonable for the ALJ to conclude that Mrs. Overstreet’s job at the airport-transporting passengers in a golf cart, and sometimes pushing them in wheelchairs, six hours a day, four days a week- — suggested that her impairments did not limit her as much as she claimed, and that she could perform sedentary work as a data-entry clerk or administrative assistant. The vocational expert said that Mrs. Over-street’s airport job required “medium” exertion. A person who can do such work is ordinarily also considered physically able to do sedentary work. See 20 C.F.R. § 404.1567(c).
Mrs. Overstreet’s argument that the ALJ’s assessment of residual functional capacity failed to include her limitations due to headaches and the limited range of motion in her neck is also not persuasive. It was Mrs. Overstreet’s burden to bring to the ALJ’s attention everything that showed she was disabled. 20 C.F.R. § 404.1512; see Luna v. Shalala, 22 F.3d 687, 693 (7th Cir.1994). She has not pointed to anything in the record suggesting that her headaches or her range of motion in her neck limited her at work.
Finally, Mrs. Overstreet’s contention that the ALJ did not properly consider her complaints of pain caused by the aggregate effects of all her impairments fails because the ALJ ensured that the vocational expert took all of her impairments into account when answering the hypothetical question. The ALJ was required to consider the combined effects of Mrs. Overstreet’s impairments because he found them to be severe in combination. See 20 C.F.R. § 404.1523; Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir.2003). Although he did not specifically address the combined effect in his ruling, he complied with § 404.1523 by including all of her impairments in his hypothetical question to the vocational expert. See Sims v. Barnhart, 309 F.3d 424, 432 (7th Cir.2002).
Accordingly, we AFFIRM the district court’s judgment affirming the Commissioner’s denial of benefits.
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ORDER
Kinyata Taliaferro-Reid allowed her boyfriend, a street-level drug dealer, to store crack cocaine in her home. When he was arrested for drug trafficking, he directed authorities to Taliaferro-Reid’s house, where he said they would find crack stashed in a bedroom cabinet. No drugs were found inside, but officers uncovered among the weeds in Taliaferro-Reid’s backyard several baggies containing a total of 122.7 grams of crack and 56.6 grams of marijuana. Taliaferro-Reid later admitted that she hid the drugs there when she learned of her boyfriend’s arrest.
Taliaferro-Reid pleaded guilty to possessing five grams or more of crack cocaine, and the district court sentenced her to 60 months’ imprisonment, the mandatory minimum. See 21 U.S.C. § 844. Tal-iaferro-Reid appeals, but her appointed counsel seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she concludes that the appeal is frivolous. Taliaferro-Reid did not respond to our invitation to comment on counsel’s motion. See CIR. R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Taliaferro-Reid told counsel that she does not want her guilty plea vacated, so counsel properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential argument: whether Taliaferro-Reid could challenge the reasonableness of her sentence. At sentencing the district court properly calculated a guidelines imprisonment range of 97 to 121 months, but, after noting that a within-guidelines sentence “would be far in excess of the statutory purposes of sentencing,” the court sentenced Taliaferro-Reid to the five-year mandatory minimum. See 21 U.S.C. § 844. Although there are two exceptions that permit a district court to impose a sentence below the statutory minimum, neither exception applied to Taliaferro-Reid — the government had not moved for a sentence reduction on account of substantial assistance, see 18 U.S.C. § 3553(e), and Taliaferro-Reid’s three criminal history points made her ineligible for safety-valve relief, see id. § 3553(f). Because the district court was constrained from sentencing Taliaferro-Reid to anything less than 60 months imprisonment, we agree with counsel that any challenge to the sentence would be frivolous. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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ORDER
Pursuant to the stipulation of the parties, this appeal is voluntarily dismissed. Fed. R. App. P. 42(b). The parties shall bear their own costs and attorneys’ fees on appeal.
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PER CURIAM:
Volusia County appeals from a denial of its Renewed Motion for Judgment as a Matter of Law in favor of Kurt Vroman after a jury verdict finding against Volusia County. After reviewing the record and the briefs of the parties, and hearing oral argument, we find no error that warrants reversal in this case.
AFFIRMED.
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*621ON PETITION FOR WRIT OF MANDAMUS
DYK, Circuit Judge.
ORDER
Pfizer Inc. et al. (Pfizer) petition for a writ of mandamus directing the' United States District Court for the District of Delaware to (1) vacate its order transferring this case to the United States District Court for the Northern District of Illinois and (2) deny Apotex Inc. and Apotex Corp.’s (Apotex) motion to transfer. Apo-tex opposes. Apotex submits a citation of supplemental authority. Pfizer responds.
Pfizer brought suit in the Delaware District Court against Apotex based on Apo-tex’s filing of an Abbreviated New Drug Application seeking approval from the Food and Drug Administration to manufacture, use, or sell atorvastatin calcium tablets, a generic version of Pfizer’s Lipitor tablets. On the same day, Pfizer also filed an identical suit against Apotex in the Illinois District Court. Apotex moved to dismiss the Delaware action due to, inter alia, lack of personal jurisdiction. Alternatively, Apotex moved to transfer the case pursuant to 28 U.S.C. § 1404(a) to the Illinois District Court. The Delaware District Court granted the motion to transfer. The Delaware District Court ruled that although the plaintiffs choice of forum is generally entitled to paramount consideration, in this case the plaintiff chose both fora. Furthermore, the Delaware District Court ruled that the “first-filed” rule did not apply in this case because “it would be inappropriate to allow a plaintiff to file identical actions in different courts and then pick the court in which it wishes to proceed.” Pfizer Inc. v. Apotex Inc., Order Granting Mot. to Transfer at *5-6, No. 08-CV-00948, 2009 WL 2843288 (D.Del. Aug. 13, 2009) (citation omitted). The Delaware District Court ruled that judicial economy and the interest of justice favored transfer because transferring the case “would obviate a substantial question regarding personal jurisdiction.” Id. at *1. The Delaware District Court stated that “substantial, unresolved questions remain with regard to whether this District has personal jurisdiction over Defendant Apo-tex Inc.....We would not exercise jurisdiction over Defendant Apotex Inc. without jurisdictional discovery.” Id. at *8. For these reasons, the Delaware District Court transferred the case to the Illinois District Court.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Because this petition does not involve substantive issues of patent law, this court applies the law of the regional circuit in which the district court sits, in this case the Third Circuit. Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 836 (Fed.Cir.2003).
Pfizer seeks a writ of mandamus directing the Delaware District Court to vacate its transfer order and deny the motion to transfer. Pfizer raises three arguments in support of its petition. First, Pfizer argues that the Delaware District Court clearly erred by affording no weight to the plaintiffs “true” choice of forum. Apotex responds that in this case, Pfizer willingly chose to proceed in both fora and thus the Delaware District Court did not disregard Pfizer’s choice of forum. Although Pfizer *622contends that it did not willingly choose to file suit in the Illinois District Court, the court determines that Pfizer has not shown that the Delaware District Court clearly abused its discretion in ruling that Pfizer chose to file in both fora.
Second, Pfizer argues that the Delaware District Court erred by disregarding the first-filed rule. Apotex counters that other courts in the Third Circuit have refused to apply the first-filed rule in circumstances similar to this case, where identical suits are filed in different districts on the same day. See Adams Respirator Therapeutics, Inc. v. Pharm. Holdings Corp., No. 2:06-CV-04418, Order Denying PL’s Mot. to Stay, at *2 (E.D.Pa. Nov. 2, 2006) (ruling that “first-filed” rule did not apply in action where plaintiff filed nearly identical complaint in another court two days earlier). Pfizer cites no case in which a court has applied the first-filed rule in these circumstances, instead generally arguing that the Third Circuit follows the first-filed rule. The court determines that Pfizer has not shown that the Delaware District Court clearly abused its discretion in ruling that the first-filed rule was inapplicable under the circumstances of this case.
Third, Pfizer argues that the Delaware District Court erred in ruling that obviating an unresolved jurisdictional dispute is a sufficient basis for transferring a case. Apotex responds that other courts, including a district court in the Third Circuit, have held that judicial economy is served if transfer would obviate a question of personal jurisdiction. See Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 77 F.Supp.2d 505, 512 (D.Del.1999) (noting that transfer would obviate substantial dispute concerning whether transferor district court could exercise personal jurisdiction over defendant and ruling that judicial economy and interests of justice would be served by transferring case). In this case, the Delaware District Court ruled that “substantial, unresolved questions remain with regard to whether this District has personal jurisdiction over Defendant Apo-tex Inc.” and stated that it would not exercise jurisdiction over Apotex Inc. without jurisdictional discovery. Under these circumstances, we cannot say that the Delaware District Court clearly abused its discretion in ruling that judicial economy and the interest of justice weighed strongly in favor of transfer.
Pfizer has not shown a clear and indisputable right to issuance of a writ of mandamus. Thus, the petition is denied.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
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DYK, Circuit Judge.
ORDER
Rymed Technologies, Inc. petitions for permission to appeal an order certified by the United States District Court for the District of Delaware as one involving a controlling issue of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. ICU Medical, Inc. opposes.
In its claim construction order, the District of Delaware rejected Rymed’s argument that the court was precluded from construing three claim terms: “preslit,” “compressed state” and “decompressed state,” differently than as construed by the United States District Court for the District for the Central District of California in ICU Med., Inc. v. Alaris Med. Sys., Inc., 2007 U.S. Dist. LEXIS 96077, 2006 WL 6133688 (CD.Cal. Jul. 17, 2006). In Alans, the Central District of California construed those three terms along with other terms, including “spike,” and based on the construction of “spike” granted Alaris’ motion for summary judgment of noninfringement. The Alans district court also granted Alaris’ motion for summary judgment of invalidity, determining that claims that did not contain the “spike” element failed to meet the written description requirement. On appeal, we affirmed the judgment of the Alaris district court but expressly only addressed the construction of “spike.” ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368 (Fed.Cir.2009).
In the present case, the District of Delaware certified its claim construction order for permissive appeal pursuant to 28 U.S.C. § 1292(b). Pursuant to that section, Rymed seeks review of the order containing the issue whether collateral es-toppel or stare decisis apply to prior district courts’ claim constructions that were not expressly reviewed on appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(c)(1). We determine that granting the petition in these circumstances is not warranted.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is denied.
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ON MOTION
ORDER
Upon consideration of Michael F. Young’s motion to voluntarily withdraw his appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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ON MOTION
ORDER
Upon consideration of Inventorprise, Inc.’s motion to voluntarily dismiss its appeal, from the United States District Court for the Northern District of New York, case no. 09-CV-0380,
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 CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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ORDER
Gary Williams, a federal pretrial detainee, filed an amended petition for a writ of habeas corpus, 28 U.S.C. § 2241, claiming that his continued confinement violates his statutory right to a speedy trial. Williams filed his petition in the Northern District of Illinois while confined temporarily in Chicago, but the underlying prosecution is in the Eastern District of Virginia. He seeks dismissal of the indictment. The district court denied the petition without prejudice to Williams seeking relief in the district where the prosecution is pending.
Even though Williams mentions the Sixth Amendment in his appellate brief, his petition was premised entirely on the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-74. By failing to develop a constitutional argument, Williams waived any Sixth Amendment claim. See United States v. Loera, 565 F.3d 406, 412 (7th Cir.), cert. denied, — U.S. —, 130 S.Ct. 654, —L.Ed.2d — (2009). As for the statutory claim, the Speedy Trial Act allows dismissal of an indictment if the time constraints of the Act are not followed, 18 U.S.C. § 3162(a)(2); United States v. Gearhart, 576 F.3d 459, 462 (7th Cir.2009), but a district court in Chicago has no authority to dismiss an indictment pending in another district, see United States v. Green, 499 F.2d 538, 539 (D.C.Cir.1974). In any event, a federal pretrial detainee cannot use § 2241 to preempt the judge presiding over the criminal case. See Jones v. Perkins, 245 U.S. 390, 391-92, 38 S.Ct. 166, 62 L.Ed. 358 (1918) (“It is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of a trial.”); Fassler v. United States, 858 F.2d 1016, 1018-19 (5th Cir.1988) (per curiam) (stating that federal defendants cannot use § 2241 to challenge pretrial detention orders that can be chal*269lenged under 18 U.S.C. § 3145); United States v. Pipito, 861 F.2d 1006, 1009 (7th Cir.1987) (same). Accordingly, the dismissal of Williams’s petition is AFFIRMED.
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ORDER
Kinyata Taliaferro-Reid allowed her boyfriend, a street-level drug dealer, to store crack cocaine in her home. When he was arrested for drug trafficking, he directed authorities to Taliaferro-Reid’s house, where he said they would find crack stashed in a bedroom cabinet. No drugs were found inside, but officers uncovered among the weeds in Taliaferro-Reid’s backyard several baggies containing a total of 122.7 grams of crack and 56.6 grams of marijuana. Taliaferro-Reid later admitted that she hid the drugs there when she learned of her boyfriend’s arrest.
Taliaferro-Reid pleaded guilty to possessing five grams or more of crack cocaine, and the district court sentenced her to 60 months’ imprisonment, the mandatory minimum. See 21 U.S.C. § 844. Tal-iaferro-Reid appeals, but her appointed counsel seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she concludes that the appeal is frivolous. Taliaferro-Reid did not respond to our invitation to comment on counsel’s motion. See CIR. R. 51(b). We review only the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Taliaferro-Reid told counsel that she does not want her guilty plea vacated, so counsel properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential argument: whether Taliaferro-Reid could challenge the reasonableness of her sentence. At sentencing the district court properly calculated a guidelines imprisonment range of 97 to 121 months, but, after noting that a within-guidelines sentence “would be far in excess of the statutory purposes of sentencing,” the court sentenced Taliaferro-Reid to the five-year mandatory minimum. See 21 U.S.C. § 844. Although there are two exceptions that permit a district court to impose a sentence below the statutory minimum, neither exception applied to Taliaferro-Reid — the government had not moved for a sentence reduction on account of substantial assistance, see 18 U.S.C. § 3553(e), and Taliaferro-Reid’s three criminal history points made her ineligible for safety-valve relief, see id. § 3553(f). Because the district court was constrained from sentencing Taliaferro-Reid to anything less than 60 months imprisonment, we agree with counsel that any challenge to the sentence would be frivolous. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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PER CURIAM.
Theresa Flieger appeals the district court’s1 judgment, entered upon a jury verdict finding her guilty of possession of pseudoephedrine, knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). She was sentenced at the bottom of the calculated advisory Guidelines range to 151 months in prison and two years of supervised release. On appeal, Flieger’s counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), challenging the sufficiency of the evidence to support the jury’s verdict and the district court’s application of an obstruction-of-justice sentencing enhancement under U.S.S.G. § 3C1.1. For the reasons that follow, we affirm.
Upon careful review, see United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir.2009) (denial of motion for judgment of acquittal is reviewed de novo, and evidence is viewed in light most favorable to verdict, giving verdict benefit of all reasonable inferences; reviewing court does not weigh evidence or assess witness credibility, and reverses only if no reasonable jury could have found defendant guilty beyond reasonable doubt), we find that the government’s evidence was sufficient. In particular, the evidence at trial included the testimony of witnesses who observed Flieger give boxes of pseudoephedrine pills to a methamphetamine manufacturer *292in exchange for methamphetamine, and use methamphetamine. See United States v. Hudspeth, 525 F.3d 667, 677 (8th Cir.2008) (to convict under § 841(c), government must prove defendant possessed or distributed pseudoephedrine “knowing, or having reasonable cause to believe, that ... [it] will be used to manufacture a controlled substance”); see also United States v. Khattab, 536 F.3d 765, 769-70 (7th Cir.2008) (affirming § 841(c)(2) conviction where evidence supported conclusion that defendant knew pseudoephedrine he attempted to purchase would be used to manufacture methamphetamine).
In addition, we conclude that the district court did not clearly err in finding that Flieger had given intentionally false testimony at trial in an effort to mislead the jury. While Flieger testified that she had merely consumed the pseudoephedrine pills she purchased over the years in question and had not used methamphetamine during this time, others testified as to their observations to the contrary. Thus, we hold that the district court did not err in applying the obstruction-of-justice enhancement. See United States v. Boesen, 541 F.3d 838, 851-52 (8th Cir.2008) (reviewing district court’s factual findings for clear error and its application of advisory Guidelines de novo; affirming imposition of § 3C1.1 enhancement where district court found by preponderance of evidence that defendant willfully gave false testimony concerning material matter, rather than as result of confusion, mistake, or faulty memory); United States v. Titlbach, 300 F.3d 919, 924 (8th Cir.2002) (affirming imposition of § 3C1.1 enhancement where defendant’s testimony that he had not participated in methamphetamine manufacturing conflicted with other -witnesses’ testimony); United States v. Simms, 285 F.3d 1098, 1101-02 (8th Cir.2002) (although § 3C1.1 is not intended to punish defendant for testifying, defendant who commits perjury is subject to enhancement).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we affirm the judgment of the district court, and grant counsel’s motion to withdraw.
. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
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ORDER
Pursuant to the stipulation of the parties, this appeal is voluntarily dismissed. Fed. R. App. P. 42(b). The parties shall bear their own costs and attorneys’ fees on appeal.
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ORDER AND JUDGMENT*
BOBBY R. BALDOCK, Circuit Judge.
Robert Steven Hatch, a prisoner at the Utah State Prison in Draper, Utah, attempted to contest a determination of deficiency in his 2002 income taxes by filing a petition with the United States Tax Court. The Tax Court granted the Commissioner’s motion to dismiss for lack of jurisdiction on the ground that Hatch did not file his petition within ninety days after the notice of deficiency was mailed. Appearing pro se, Hatch appeals. Our jurisdiction arises under 26 U.S.C. § 7482(a)(1), and we affirm.
I. Background
On January 7, 2008, the Commissioner, by certified mail, sent Hatch a notice of deficiency for the 2002 tax year. Under 26 U.S.C. § 6213(a), Hatch had ninety days from the mailing date of the deficiency notice, or in this case until April 7, 2008, in which to file a petition with the Tax Court seeking a redetermination of the deficiency. The Tax Court received Hatch’s petition on April 17, 2008, in an envelope postmarked April 11, 2008, both dates be*402ing after the expiration of the ninety-day filing period. The petition was filed by the Tax Court as of the date of its receipt.
The Commissioner moved to dismiss, arguing that the petition was untimely, thus depriving the Tax Court of jurisdiction. Citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (setting forth the “prison mailbox rule”), Hatch objected to the motion to dismiss arguing that he had delivered the petition to prison officials on.Sunday, April 6, 2008, for mailing, and that it was thus timely. In response, the Commissioner noted various obvious falsehoods in Hatch’s pleadings and observed that the evidence put forth by Hatch consisted solely of self-serving statements. Because Hatch’s credibility had been put in issue, the Commissioner further informed the Tax Court of Hatch’s criminal record.
The Tax Court refused to resolve the dispute between the parties as to when the petition was mailed, relying instead on this court’s precedent holding that the ninety-day filing requirement is jurisdictional. See Foster v. Comm’r, 445 F.2d 799, 800 (10th Cir.1971) (decided prior to Houston v. Lack and citing, with approval, cases holding that the seeming inequities caused by defects in a prison mailing system will not serve to excuse a late filing). The Tax Court concluded that “as a matter of law ... the petition was untimely filed” and dismissed the case for lack of jurisdiction. Hatch v. CIR, Order of Dismissal for Lack of Jurisdiction at 4. This appeal followed.
On appeal, Hatch argues that his petition should have been considered timely through the application of the prison mailbox rule, under which the timeliness would be determined by the date upon which he gave his petition to prison authorities for mailing, or, according to him, on April 6, 2008. He further argues that the Commissioner ran afoul of Fed.R.Evid. 404 by including evidence of Hatch’s convictions in his pleadings, and that this evidence prejudiced the Tax Court.
II. Discussion
We review factual findings made by the Tax Court for clear error; legal conclusions are subject to de novo review. Estate of Holl v. Comm’r, 967 F.2d 1437, 1438 (10th Cir.1992). Whether the Tax Court correctly dismissed a petition for lack of jurisdiction is a mixed question of law and fact. Anderson v. Comm’r, 62 F.3d 1266, 1270 (10th Cir.1995).
As mentioned, in order for the Tax Court to have jurisdiction over a petition to redetermine a tax deficiency, the taxpayer must file a petition with the Tax Court within ninety days of the mailing of the notice of deficiency. 26 U.S.C. § 6213(a). If the petition is not timely filed, the matter must be dismissed for lack of jurisdiction. Armstrong v. Comm’r, 15 F.3d 970, 973 n. 2 (10th Cir.1994). In 1916, the Supreme Court noted that the word “file” had never been defined by Congress, but that its etymology led to the conclusion that a filing “is not complete until the document is delivered and received.” United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 60 L.Ed. 897 (1916). This principle is known as the “physical delivery rule.” Under that rule, it is clear that Hatch’s petition was not timely filed because it was not received by the IRS until April 17, 2008, well after the ninety-day filing period had expired.
Hatch urges us to apply the prison mailbox rule as announced in Houston where the Supreme Court ruled that a prison inmate’s notice of appeal in a habeas corpus case was deemed filed at the time he delivered it to prison authorities for forwarding to the court. 487 U.S. at 270, 276, 108 S.Ct. 2379. However, whether the prison mailbox rule is viable in light of the *403Tax Code’s own mailbox rule, 26 U.S.C. § 7502, is an issue this court has yet to decide. See Crook v. Comm’r, 173 Fed.Appx. 653, 657 (10th Cir.2006) (noting that this court has yet to decide whether § 7502 provides the exclusive method by which a timely mailing can be proven); see also Price v. Philpot, 420 F.3d 1158, 1164 n. 5 (10th Cir.2005) (noting, in dicta, that “where the ‘service’ or ‘filing’ language in an applicable statute or rule establishes a specific regime to the contrary, Houston may not apply”). Hatch does not argue on appeal that he complied with the mailing requirements of § 7502 so we will not consider that possibility.
Instead, for purposes of this appeal, we will assume, without deciding, that the prisoner mailbox rule can apply in these circumstances. That assumption, however, does not save Hatch’s petition. As the plaintiff, Hatch bears the burden of proving facts supporting jurisdiction. See FDIC v. Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992). That proof needs to be something more than self-serving declarations. Sorrentino v. IRS, 383 F.3d 1187, 1191 (10th Cir.2004); see also Crook, 173 Fed.Appx. at 657 (applying Sorrentino in prison-mailbox case). The Supreme Court, itself, in Houston contemplated that disputes over the date a prisoner handed his mail to prison authorities would be resolved by reference to prison mail logs, described as “a straightforward inquiry.” Houston, 487 U.S. at 276, 108 S.Ct. 2379. Hatch does not present any prison data showing that he delivered his mail to prison authorities before the expiration of the ninety day deadline. The evidence he does offer from the prison is inconclusive. The handwritten date of April 6, 2008, appended to Hatch’s prison-money-transfer-request form, is obviously in Hatch’s handwriting and proves nothing about when the petition was given to prison authorities for mailing. Nor does the attestation of mailing attached to Hatch’s in forma pauperis application and dated April 6, 2008, establish facts sufficient to bring the petition within the safe harbor of the prison mailbox rule.
Hatch’s contention that the Tax Court was biased against him because the Commissioner wrongly informed the Court of his criminal history is without merit. Hatch bases his argument on Fed.R.Evid. 404(b). The Tax Court’s decision, however, was based on the fact that Hatch failed to sustain his burden to establish subject matter jurisdiction by advancing evidence showing that his petition was timely. The decision was not driven by resolution of disputed factual allegations that could have been influenced by evidence regarding Hatch’s character or credibility.
III. Conclusion
Finally, Hatch has filed a motion to proceed on appeal without prepayment of costs or fees. Hatch, however, has failed to comply with 28 U.S.C. § 1915(a)(2) which requires that, in addition to the affidavit of indigence, a prisoner seeking in forma pauperis status must also submit a certified copy of his prison trust fund account statement for the six-month period immediately preceding the filing of his notice of appeal. See Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149, 1153 (10th Cir.2009). Accordingly, it is ORDERED that, within twenty days of the filing date of this order, Hatch must either submit to this court “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the ... notice of appeal,” 28 U.S.C. § 1915(a)(2), or pay his appellate filing fee in full and withdraw his in forma pauperis motion.
*404The February 24, 2009, decision of the United States Tax Court is AFFIRMED.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.
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PER CURIAM:
Volusia County appeals from a denial of its Renewed Motion for Judgment as a Matter of Law in favor of Kurt Vroman after a jury verdict finding against Volusia County. After reviewing the record and the briefs of the parties, and hearing oral argument, we find no error that warrants reversal in this case.
AFFIRMED.
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*621ON PETITION FOR WRIT OF MANDAMUS
DYK, Circuit Judge.
ORDER
Pfizer Inc. et al. (Pfizer) petition for a writ of mandamus directing the' United States District Court for the District of Delaware to (1) vacate its order transferring this case to the United States District Court for the Northern District of Illinois and (2) deny Apotex Inc. and Apotex Corp.’s (Apotex) motion to transfer. Apo-tex opposes. Apotex submits a citation of supplemental authority. Pfizer responds.
Pfizer brought suit in the Delaware District Court against Apotex based on Apo-tex’s filing of an Abbreviated New Drug Application seeking approval from the Food and Drug Administration to manufacture, use, or sell atorvastatin calcium tablets, a generic version of Pfizer’s Lipitor tablets. On the same day, Pfizer also filed an identical suit against Apotex in the Illinois District Court. Apotex moved to dismiss the Delaware action due to, inter alia, lack of personal jurisdiction. Alternatively, Apotex moved to transfer the case pursuant to 28 U.S.C. § 1404(a) to the Illinois District Court. The Delaware District Court granted the motion to transfer. The Delaware District Court ruled that although the plaintiffs choice of forum is generally entitled to paramount consideration, in this case the plaintiff chose both fora. Furthermore, the Delaware District Court ruled that the “first-filed” rule did not apply in this case because “it would be inappropriate to allow a plaintiff to file identical actions in different courts and then pick the court in which it wishes to proceed.” Pfizer Inc. v. Apotex Inc., Order Granting Mot. to Transfer at *5-6, No. 08-CV-00948, 2009 WL 2843288 (D.Del. Aug. 13, 2009) (citation omitted). The Delaware District Court ruled that judicial economy and the interest of justice favored transfer because transferring the case “would obviate a substantial question regarding personal jurisdiction.” Id. at *1. The Delaware District Court stated that “substantial, unresolved questions remain with regard to whether this District has personal jurisdiction over Defendant Apo-tex Inc.....We would not exercise jurisdiction over Defendant Apotex Inc. without jurisdictional discovery.” Id. at *8. For these reasons, the Delaware District Court transferred the case to the Illinois District Court.
The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of obtaining the relief desired, Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable,” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Because this petition does not involve substantive issues of patent law, this court applies the law of the regional circuit in which the district court sits, in this case the Third Circuit. Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 836 (Fed.Cir.2003).
Pfizer seeks a writ of mandamus directing the Delaware District Court to vacate its transfer order and deny the motion to transfer. Pfizer raises three arguments in support of its petition. First, Pfizer argues that the Delaware District Court clearly erred by affording no weight to the plaintiffs “true” choice of forum. Apotex responds that in this case, Pfizer willingly chose to proceed in both fora and thus the Delaware District Court did not disregard Pfizer’s choice of forum. Although Pfizer *622contends that it did not willingly choose to file suit in the Illinois District Court, the court determines that Pfizer has not shown that the Delaware District Court clearly abused its discretion in ruling that Pfizer chose to file in both fora.
Second, Pfizer argues that the Delaware District Court erred by disregarding the first-filed rule. Apotex counters that other courts in the Third Circuit have refused to apply the first-filed rule in circumstances similar to this case, where identical suits are filed in different districts on the same day. See Adams Respirator Therapeutics, Inc. v. Pharm. Holdings Corp., No. 2:06-CV-04418, Order Denying PL’s Mot. to Stay, at *2 (E.D.Pa. Nov. 2, 2006) (ruling that “first-filed” rule did not apply in action where plaintiff filed nearly identical complaint in another court two days earlier). Pfizer cites no case in which a court has applied the first-filed rule in these circumstances, instead generally arguing that the Third Circuit follows the first-filed rule. The court determines that Pfizer has not shown that the Delaware District Court clearly abused its discretion in ruling that the first-filed rule was inapplicable under the circumstances of this case.
Third, Pfizer argues that the Delaware District Court erred in ruling that obviating an unresolved jurisdictional dispute is a sufficient basis for transferring a case. Apotex responds that other courts, including a district court in the Third Circuit, have held that judicial economy is served if transfer would obviate a question of personal jurisdiction. See Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 77 F.Supp.2d 505, 512 (D.Del.1999) (noting that transfer would obviate substantial dispute concerning whether transferor district court could exercise personal jurisdiction over defendant and ruling that judicial economy and interests of justice would be served by transferring case). In this case, the Delaware District Court ruled that “substantial, unresolved questions remain with regard to whether this District has personal jurisdiction over Defendant Apo-tex Inc.” and stated that it would not exercise jurisdiction over Apotex Inc. without jurisdictional discovery. Under these circumstances, we cannot say that the Delaware District Court clearly abused its discretion in ruling that judicial economy and the interest of justice weighed strongly in favor of transfer.
Pfizer has not shown a clear and indisputable right to issuance of a writ of mandamus. Thus, the petition is denied.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
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DYK, Circuit Judge.
ORDER
Rymed Technologies, Inc. petitions for permission to appeal an order certified by the United States District Court for the District of Delaware as one involving a controlling issue of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. ICU Medical, Inc. opposes.
In its claim construction order, the District of Delaware rejected Rymed’s argument that the court was precluded from construing three claim terms: “preslit,” “compressed state” and “decompressed state,” differently than as construed by the United States District Court for the District for the Central District of California in ICU Med., Inc. v. Alaris Med. Sys., Inc., 2007 U.S. Dist. LEXIS 96077, 2006 WL 6133688 (CD.Cal. Jul. 17, 2006). In Alans, the Central District of California construed those three terms along with other terms, including “spike,” and based on the construction of “spike” granted Alaris’ motion for summary judgment of noninfringement. The Alans district court also granted Alaris’ motion for summary judgment of invalidity, determining that claims that did not contain the “spike” element failed to meet the written description requirement. On appeal, we affirmed the judgment of the Alaris district court but expressly only addressed the construction of “spike.” ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368 (Fed.Cir.2009).
In the present case, the District of Delaware certified its claim construction order for permissive appeal pursuant to 28 U.S.C. § 1292(b). Pursuant to that section, Rymed seeks review of the order containing the issue whether collateral es-toppel or stare decisis apply to prior district courts’ claim constructions that were not expressly reviewed on appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(c)(1). We determine that granting the petition in these circumstances is not warranted.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is denied.
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ON MOTION
ORDER
Upon consideration of Michael F. Young’s motion to voluntarily withdraw 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 CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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JUDGMENT
PER CURIAM.
This petition for review of an order of the Surface Transportation Board was considered on the bi'iefs and the appendix filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the petition for review be denied.
Riffin challenges the Board’s denial of his motion to compel a railroad abandoning a certain stretch of track to issue a deed to him personally although the railroad had already issued the deed to WMS, LLC, a Maryland limited liability corporation he controlled. Any differences between the deed and what is called for by the purchase and sale agreement, which indicated the railroad was to be transferred to WMS, Inc., a West Virginia limited liability corporation, are irrelevant to our analysis because the STB has only a limited role in facilitating the transaction.
As the Board explained in the order under review, if an offeror and an offeree railroad have agreed upon the terms of a transaction in an abandonment proceeding, as they did here, then the Board’s role is only to determine the financial responsibility of the offeror. See 49 U.S.C. § 10904(d)(2)(A) (abandonment proceed*651ings postponed until “the carrier and a financially responsible person have reached agreement on a transaction for subsidy or sale of the line”); 49 C.F.R. § 1152.27(f)(2) (“[i]f the carrier and a person offering to purchase a line enter into a purchase agreement which will result in continued rail service, the Board will approve the transaction and dismiss the application for abandonment”); cf. 49 U.S.C. § 10904(f)(1)(B) (permitting the STB to set terms for the transaction if the parties cannot agree); 49 C.F.R. § 1152.27(h)(6) (same). That the Board did.
Therefore, the Board’s involvement in this transaction ended before the railroad issued the deed to WMS, LLC. regardless whether the railroad later fulfilled its contractual obligation to the offeror. Riffin cites no relevant authority for the proposition that the STB may compel an abandoning railroad to issue a new deed or otherwise resolve a contract dispute between the railroad and the acquiring offeror.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs filed by the parties, and on appellant’s transcript of prepared supplemental points for oral argument contained in his motion for reconsideration filed January 21, 2010. See D.C.CiR. Rule 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cm. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
To satisfy “the irreducible constitutional minimum of standing,” a plaintiff must show an injury in fact that is fairly traceable to the challenged conduct of the defendant and that is likely to be redressed by a decision in the plaintiffs favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury must be “(a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). The plaintiff fails to meet that burden here. He challenges the winner-take-all systems by which Arkansas, Georgia, Louisiana, Tennessee, and Texas award Electoral College votes, arguing that those states have unconstitutionally disenfranchised voters who support the losing candidates. The plaintiff contends that the states should be penalized under Section 2 of the Fourteenth Amendment, which provides, in relevant part, that where “the right to vote at any election for the choice of electors for President and Vice President of the United States ... is denied” to any male citizen over the age of 21, or “in any way abridged, except for participation in rebellion, or other crime,” the basis of the offending state’s representation “shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” U.S. Const, amend. XIV, § 2. The plaintiff is not injured by the operation of the five states’ winner-take-all systems because he does not vote in those states. Nor has he alleged that the failure to redistribute electoral votes pursuant to Section 2 has caused him any “concrete and particularized” injury.
The plaintiffs complaint indicated that he was filing his lawsuit as a class action. The district court correctly held that he could not proceed as a representative of a class because he did not file a class certification motion within 90 days of filing his complaint, as required by Local Civil Rule 23.1(b). D.D.C. Local Rule 23.1(b). The plaintiff has not appealed this aspect of the court’s judgment.
Accordingly, we affirm the decision of the district court dismissing the plaintiffs complaint for lack of standing.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.CiR. Rule 41(a)(1).
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JUDGMENT
PER CURIAM.
This petition for review of an order of the National Transportation Safety Board was considered on the briefs and the appendix filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the petition for review be denied.
Jon Heyl petitions for review of an NTSB order affirming the FAA’s revocation of his pilot certificate and airman medical certificate. Heyl appeared for a mandatory pre-employment drug test but he left the testing site before producing the required 45 mL specimen of urine. See 49 C.F.R. § 40.65(a). Heyl’s “[f]ail[ure] to remain at the testing site until the testing process is complete” constitutes a refusal to test. § 40.191(a)(2).
Heyl argues the FAA’s complaint against him was untimely, the test was conducted improperly, and some evidence should not have been considered. Although the NTSB’s rules generally require the dismissal of a complaint filed more than six months after the offense, the six month limit does not apply to a complaint that presents “an issue of lack of qualification.” § 821.33(b). Heyl does not contest the FAA’s assertion that this case involves such an issue. Heyl’s arguments about problems with the testing procedures are essentially irrelevant because substantial evidence supports the findings that he neither “provided a sufficient urine specimen” nor waited the required three hours in order to trigger the full procedures for shy bladder. § 40.193(b)(2). Finally, the administrative law judge properly determined that evidence relating to Northwest Airlines’s kiosk was relevant to establish Heyl’s premature departure from the testing site. See 5 U.S.C. § 556(d); 49 C.F.R. § 821.38.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The *654Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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SUMMARY ORDER
Anthony J. DiPlacido seeks review of the Commission’s 79-page decision affirming an administrative law judge’s (“ALJ”) determination that he manipulated settlement prices for electricity futures contracts. DiPlacido argues that (1) the decision violates due process, because he lacked notice of the theory of manipulation under which he was found liable; (2) the applied theory of manipulation was erroneous as a matter of law; (3) the weight of the evidence does not support a finding of liability; (4) the ALJ made improper evi-dentiary rulings and exhibited bias; and (5) the sanctions imposed were excessive. We assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Due Process
DiPlacido’s due process challenge is without merit. Due process requires that “a regulation carrying penal sanctions ... give fair warning of the conduct it prohibits or requires.” Rollins Envtl. Servs. (NJ) Inc. v. U.S. EPA, 937 F.2d 649, 653 n. 2 (D.C.Cir.1991) (internal quotation marks omitted). Although “[a]n agency is free ... to interpret its governing statute case by case through adjudicatory proceedings rather than by rulemaking,” if it “suddenly changes its view ... with respect to what transactions are bona fide trading transactions,” it may not then “charge a knowing violation of that revised standard and thereby cause undue prejudice to a litigant who may have relied on [its] prior policy or interpretation.” Stoller v. CFTC, 834 F.2d 262, 265-66 (2d Cir.1987) (internal quotation marks and citations omitted).
Citing the Commission’s observation that his case raised “issues of first impression,” In re DiPlacido, Comm. Fut. L. Rep. (CCH) ¶ 30,970, 2008 WL 4831204, at *660*1, 2008 CFTC LEXIS 101, at *1 (CFTC Nov. 5, 2008), DiPlacido complains that this is the first time the Commission has found manipulation “based solely on trade practices,” Appellant’s Br. 11. We disagree. As the Commission itself observed, the theory applied in this case was adopted in In re Henner; a case brought by its predecessor agency under a statute that is the substantive equivalent of the one at issue here, and concerning closely analogous facts. 30 Agrie. Dec. 1151 (1971) (finding manipulation where trader “intentionally paid more than he would have had to pay ... for the purpose of causing the closing quotation [to increase]”); see also In re Zenith-Godley, 6 Agric. Dec. 900 (1947) (holding that actions of trader constituted manipulation). The Commission also noted that, subsequent to Henner, it had pursued trade-based manipulation cases.
DiPlacido argues further that the Commission denied due process by abandoning an existing requirement for proof of defendant’s control over the relevant market. The Commission’s well-established precedents are plainly to the contrary, indicating that market control may be a feature of some forms of manipulation, e.g., a “corner” or “squeeze,” but is not a requirement of manipulation in all its forms. See, e.g., In re Hohenberg Bros. Co., [1975-1977 Transfer Binder] No. 75-4, Comm. Fut. L. Rep. (CCH) ¶ 20,271, 1977 WL 13562, at *7, 1977 CFTC LEXIS 123, at *24 (CFTC Feb. 18, 1977) (“A dominant or controlling position in the market is not a requisite element to either manipulation or attempted manipulation... ,”).1
Thus, this is not a case like Stoller v. CFTC, in which the agency suddenly changed its position and banned a “commonplace” practice. 834 F.2d at 265. Rather, the Commission’s reading of the broad language of 7 U.S.C. § 13(a) is consistent with prior readings and with its own practice. See, e.g., In re Indiana Farm Bureau Coop. Ass’n, Inc., [1982-1984 Transfer Binder] No. 75-14, Comm. Fut. L. Rep. (CCH) ¶ 21,796, 1982 WL 30249, at *3, 1982 CFTC LEXIS 25, at *8 (CFTC Dec. 17, 1982) (citing definition of manipulation as “any and every operation or transaction or practice, the purpose of which is not primarily to facilitate the movement of the commodity at prices freely responsive to the forces of supply and demand; but, on the contrary, is calculated to produce a price distortion”). Further, DiPlacido’s own actions, not least his instruction to Livingston to use the code words “don’t be shy,” rather than instructing him to “buy contracts worst or sell them worst,” Arb. Tr. 107, suggest actual notice that his conduct was wrongful.
Accordingly, we identify no denial of due process.
2. Applicable Legal Standard
DiPlacido claims that the Commission’s definition of manipulation is arbitrary and capricious. Our review of the Commission’s legal judgments is plenary, *661Piccolo v. CFTC, 388 F.3d 387, 389 (2d Cir.2004), but “where a question implicates Commission expertise, we defer to the Commission’s decision if it is reasonable,” id,.; see also Chevron, U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In the absence of a statutory definition of “manipulation,” the Commission has established a four-part test under which it will find manipulation where a preponderance of the evidence shows “(1) that the accused had the ability to influence market prices; (2) that [he] specifically intended to do so; (3) that artificial prices existed; and (4) that the accused caused the artificial prices.” In re Cox [1986-1987 Transfer Binder] No. 75-16, Comm. Fut. L. Rep. (CCH) ¶ 23,786, 1987 WL 106879, at *3, 1987 CFTC LEXIS 325, at *9 (CFTC July 15, 1987). It applied this test in DiPlaci-do’s case.
DiPlacido argues that because “[e]very-one in the market has the ability to affect the market price,” the Commission erred in not imposing a further market-control requirement. Appellant’s Br. 35. Even supposing that all large traders in illiquid markets possess the ability to influence those markets, the Commission’s inclusion of “the ability to influence the market price,” rather than market control, as an element of manipulation is hardly arbitrary or capricious, as three other elements, including specific intent, must also be satisfied to establish liability. Cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (collecting cases and recognizing that “constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea ”); United States v. Curcio, 712 F.2d 1532, 1543 (2d Cir.1983) (Friendly, J.) (same).
DiPlacido further challenges the Commission’s standard on the ground that the elements of the four-part test “collapsef ]” into one — uneconomic trading — so that a violation exists wherever bids and offers are violated, and even lawful hedging may constitute manipulation. Appellant’s Br. 39. We are not persuaded. The Commission stated that “violating bids and offers — in order to influence prices ” was “sufficient to show manipulative intent.” In re DiPlacido, 2008 WL 4831204, at *26 (emphasis added). Its finding of intent thus depended not merely on DiPlacido’s having violated bids and offers, but also on taped conversations signaling manipulative intent and the ALJ’s finding that DiPlaci-do’s denial of intent lacked credibility. Further, the Commission cited evidence (including expert testimony) that artificial prices were a “reasonably probable consequence” of DiPlacido’s large trades made during the Close in an illiquid market. Id. at *32. Thus the Commission carefully applied all four elements of the traditional test, and DiPlacido’s challenge to the reasonableness of the Commission’s “new theory,” Appellant’s Br. 39, misses its mark.
3. Weight of the Evidence
We reject DiPlacido’s claim that the evidence does not support a finding of liability for manipulation.2 The Commis*662sion’s findings of fact, “if supported by the weight of the evidence, shall ... be conclusive.” 7 U.S.C. § 9. Our review of such findings is “narrow.” Reddy v. CFTC, 191 F.3d 109, 117 (2d Cir.1999); see also Haltmier v. CFTC, 554 F.2d 556, 560 (2d Cir.1977) (describing court’s role as “something other than that of mechanically reweighing the evidence to ascertain in which direction it preponderates; it is rather to review the record with the purpose of determining whether the finder of the fact was justified, i.e. acted reasonably (internal quotation marks omitted)).
The Commission acted reasonably in concluding that DiPlacido had the ability to influence prices where, on the relevant dates, his trades over two minutes at the Close accounted for an average 14% of a full day’s volume. Likewise reasonable was the determination that DiPlacido’s trades established artificial prices, given that several witnesses testified that he violated bids and offers. See In re Eisler, No. 01-14, Comm. Fut. L. Rep. (CCH) ¶ 29,664, 2004 WL 77924, at *6, 2004 CFTC LEXIS 9, at *18 (CFTC Jan. 20, 2004) (discussing artificial prices). Finally, we detect no unreasonableness either in the Commission’s intent finding, based in part on the referenced taped telephone calls, or in its reliance on expert testimony that DiPlacido’s actions were a likely cause of artificial prices.
4. Fair Heating
DiPlacido has not shown that he did not receive “a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law.” Lloyd Carr & Co. v. CFTC, 567 F.2d 1193, 1196 (2d Cir.1977) (internal quotation marks omitted). The transcript shows that the ALJ’s handling of cross-examination, and his limitation of speculative and repetitive questioning, were within his “wide discretion.” Guttman v. CFTC, 197 F.3d 33, 38 (2d Cir.1999). As the Commission observed, the tape recordings were authenticated by four witnesses with knowledge of their creation and preservation, satisfying the reliability requirement of applicable agency rules. See 17 C.F.R. § 10.67(a). Further, the incidents on which DiPlacido bases his allegations of bias do not nearly establish “pervasive bias” sufficient to have warranted disqualification or other relief. Olson v. Ulmer, [1990-1992 Transfer Binder] No. 87-R-46, Comm. Fut. L. Rep. (CCH) ¶ 24,-987, 1991 WL 83515, at *3, 1991 CFTC LEXIS 50, at *7-8 (CFTC Jan. 23, 1991).
5. Sanctions
Finally, DiPlacido challenges the sanctions imposed on him. We review the imposition of sanctions for abuse of discretion. Reddy v. CFTC, 191 F.3d at 123. Abuse of discretion “[t]ypically ... will involve either a sanction palpably disproportionate to the violation or a failure to support the sanction chosen with a meaningful statement of ‘findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.’ ” Id. (quoting 5 U.S.C. § 557(c)(3)(A)).
On the whole, the Commission’s decision demonstrates thoughtful consideration of the relationship between DiPlacido’s conduct and the purposes of the statute, as well as the evidence that he knowingly participated in unlawful conduct, that he sought to conceal that conduct and obstruct investigators, and that the conduct *663recurred over a period of several months. It explains the basis for each of the sanctions imposed. None of its findings is disturbed by the delay in imposing a sanction, the fact that this was DiPlacido’s first offense, or the transition to computerized trading. Nor is there any merit in DiPla-cido’s arguments that the Commission exceeded its discretion by fining him for after-hours trading even though NYMEX had also imposed a fine on that basis, by adjusting the sanction amount for inflation, or by imposing lesser penalties on co-defendants who settled.
However, the Commission did err by fining DiPlacido both for the substantive offense of manipulation and for aiding and abetting, where the underlying conduct was the same. As noted already, aiding and abetting “does not constitute a discrete ... offense”; rather, it is a theory of liability. United States v. Smith, 198 F.3d 377, 383 (2d Cir.1999). Thus we remit the civil penalty by $320,000, the amount imposed on the basis of aiding and abetting liability. In all other respects, we affirm the Commission’s decision as to sanctions.
We have reviewed DiPlaeido’s remaining arguments and find them to be without merit. Accordingly, the petition for review is GRANTED, the Commission’s decision is MODIFIED to reduce the civil penalty by $320,000, and the decision of the Commission as modified is AFFIRMED.
. Vitanza v. Board of Trade of the City of New York, No. 00-CV-7393, 2002 WL 424699 (S.D.N.Y. Mar. 18, 2002), cited by DiPlacido for the proposition that a “settlement price” is not susceptible to manipulation as a matter of law, is distinguishable. The question in that case was whether defendants’ alleged manipulation of settlement prices fell within the meaning of 7 U.S.C. § 25(a)(1)(D), which creates a private right of action where defendants manipulate "the price of [futures] contracts, or the price of the commodity underlying such contracts.” Vitanza v. Bd. of Trade of City of N.Y., at *5. On the commodities exchange at issue in Vitanza, settlement prices were determined by use of an arithmetical formula, rather than (as here) by trading. See id. at *1. Thus the court found that plaintiffs had failed to stale a claim under Section 25(a)(1)(D) where they alleged manipulation of the settlement price. Id. at *5.
. DiPlacido offers no separate argument as to his liability for the offense of attempted manipulation, but instead relies on his argument with regard to manipulation. Thus, to the extent he has not abandoned the former claim, our conclusions apply to both. As for aiding and abetting liability, DiPlacido has not demonstrated that the Commission erred in determining that he waived direct appeal from the ALJ's finding on that issue. DiPlaci-do's cursory treatment of aiding and abetting liability in his main brief does not mention the Commission’s waiver finding, and while he insists in his reply that he has not waived any such claim, he is careful not to claim that he mentioned it in his briefing before the Commission. Nevertheless, we reach and reverse the Commission's decision on aiding and abetting liability. See Anderson v. Bra*662nen, 27 F.3d 29 (2d Cir.1994). DiPlacido should not have been charged as an accomplice and a principal for the same underlying conduct. See United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.1994) (observing that federal aiding and abetting statute "does not penalize conduct apart from the substantive crime with which it is coupled”).
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SUMMARY ORDER
Appellant, Lean Forward Media (“LFM”), appeals from the district court’s August 22, 2008 denial of its motion for summary judgment regarding the construction of the Option and License Agreement (the “Agreement”) entered into by the parties, and from the court’s May 20, 2009, 2009 WL 1457033, denial of its motion to withdraw or defer judgment based on its affirmative defense of unclean hands. LFM also challenges the district court’s jury instructions and verdict form.
This ease involves a dispute regarding an Agreement entered into between the parties pursuant to which LFM acquired certain rights from ChooseCo, a company formed by the creators of the “Choose Your Own Adventure” series of children’s books. ChooseCo subsequently terminated LFM’s alleged failure to perform according to the specifications of the Agreement. ChooseCo sought a declaratory judgment that it was entitled to terminate the Agreement, and the matter was tried before a jury. On April 2, 2009 a verdict was entered in favor of ChooseCo. The jury found that ChooseCo proved by a preponderance of the evidence that LFM failed to comply with the Agreement and that, therefore, ChooseCo properly terminated the Agreement. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Pursuant to a choice of law provision agreed upon by the parties, Vermont law governs the interpretation of the Agreement. The question of whether a contract is ambiguous is a question of law. See John A. Russell Corp. v. Bohlig, 170 Vt. 12, 739 A.2d 1212, 1216 (1999). The district court determined that the disputed contract provision was ambiguous. Once a court has made this legal determination, “the question of what the parties intended becomes a question of fact for the factfinder to resolve.” Department of Corrections v. Matrix Health Systems, P.C., 183 Vt. 348, 950 A.2d 1201, 1205 (2008). Under those circumstances, summary judgment is not appropriate. Id. at 1204. Contrary to LFM’s argument, the contractual provision at issue was not unambiguously favorable to LFM’s position, and summary judgment in LFM’s favor was therefore properly denied.
LFM argues that the doctrine of unclean hands applies to bar ChooseCo from obtaining relief. Under Vermont law, “[a]ny willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the *672maxim” of unclean hands. Starr Farm Beach Campowners Ass’n, Inc. v. Boylan, 174 Vt. 503, 811 A.2d 155, 160 (2002). In this case, like the district court, “[w]e see no evidence of any action taken by [Choo-seCo] which is outside the spirit of fairness, justness, and right dealing such that we need to effectuate a result different from that of the trial court in order to ensure that an injustice does not occur here.” Id. (internal quotation marks omitted).
LFM’s objection to the jury instructions and verdict form clearly did not comply with Federal Rule of Civil Procedure 51(c). The parties were given an opportunity to object to the jury instructions and verdict form, see Fed.R.Civ.P. 51(b)(2), but LFM did not raise any objection until during the jury’s deliberations. The “[fjailure to object to a jury instruction or the form of an interrogatory prior to the jury retiring results in a waiver of that objection.” Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir.2002) (internal quotations omitted). We decline to find that the instructions and verdict form given to the jury constituted fundamental error. See Fogarty v. Near N. Ins. Brokerage, Inc., 162 F.3d 74, 80 (2d Cir.1998).
ChooseCo’s motion to strike portions of the appendix submitted to this Court by LFM is GRANTED IN PART and DENIED IN PART. The following pages shall be stricken from the appendix filed by LFM: 397-412, 419, 423, and 426-35. See Fed. R.App. P. 30(a)(1).
The Court has reviewed Appellant’s remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Appellant Eitzen Bulk A/S appeals both a March 25, 2009 and April 29, 2009 order of the United States District Court for the Southern District of New York (Jones, J.). While this appeal was sub judice, we decided The Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions. Also while this appeal was sub judice, we decided Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d Cir.2009), and held that our decision in The Shipping Corp. applied retroactively. Accordingly, we VACATE the district court’s orders and REMAND the matter for consideration in light of these recent decisions.
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OPINION
SMITH, Circuit Judge.
Jeffrey D. Feldstein, M.D., brought this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., against appellees Organon and Schering Plough, claiming that Organon’s failure to disclose the harmful side effects of the pharmaceutical drug Raplon resulted in the submission of false claims to Medicare and Medicaid.1 The District Court dismissed Feldstein’s complaint for lack of jurisdiction, and, in the alternative, for failure to comply with the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. We will affirm.
I.
Because we write only for the parties, who are familiar with the record, we recount only those facts which are essential to our decision. Organon developed, manufactured, and sold Raplon, which was approved by the FDA on August 18, 1999. Raplon was a neuromuscular blocking agent used during surgery and other medical procedures. After Raplon entered the market, there were reports of episodes of an adverse side effect known as bronchos-pasm, and in some cases a severe form of bronchospasm known as “cement lung,” in patients who were treated with the drug. These conditions made breathing difficult and led to severe injuries in certain patients, and in some cases, death. These harmful side effects also spawned lawsuits against Organon, several of which alleged that Organon fraudulently concealed safety information about Raplon’s potential to cause bronchospasm and cement lung, both before and after the FDA approved *740the drug. Organon voluntarily withdrew Raplon from the market in March of 2001.
In May of 2000, Organon hired Feldstein to serve as its Associate Director of Medical Services for Antithrombotics. His duties included assisting with the launch of the anticoagulant drug Arixtra. A disagreement soon arose between Feldstein and his superiors. Feldstein complained that Organon personnel were concealing instances of bleeding associated with Arix-tra, and that his supervisor, Dr. Jonathan Deutsch, attempted to coerce Feldstein into disseminating false information about such bleeding. Organon fired Feldstein in May of 2001.
During his tenure at Organon, Feldstein did not work on Raplon, nor was he involved in obtaining FDA approval for the drug. He makes no claim that he was part of, or personally observed, any fraud related to Raplon. Before he left Organon, however, Feldstein voiced his concerns about Deutsch and Arixtra to Dr. Daniel Sack, Organon’s Associate Director of Anesthesiology. Sack informed Feldstein that Raplon, with which Deutsch was also involved, had caused multiple deaths since its approval. Sack then showed Feldstein an email concerning Raplon that he had discovered on his laptop computer. The email was written by Deutsch and sent to Dr. Deborah Shapse, Organon’s Vice President of Medical Services. It predated Raplon’s FDA approval. In the email, Deutsch described bronchospasm as “a potential problem that needed to be addressed prior to launch” and stated that “Michael may be correct in not wanting to draw attention to bronchospasm.” Feld-stein claims that “Michael” was Michael Novinsky, Organon’s Vice President of Marketing. He describes this email as a “smoking gun” because he claims that it proves that Organon knew of the respiratory dangers posed by Raplon before it was approved, but failed to disclose those dangers to the FDA and otherwise attempted to withhold safety information about Raplon from the medical community.
Later, Feldstein reviewed Organon’s submissions to the FDA concerning Ra-plon and concluded that Organon had inadequately disclosed Raplon’s risk of serious adverse events (SAEs). He also spoke with Robert Piona, Organon’s former Brand Manager for Anesthetics. Piona had been involved with Raplon marketing efforts, and he supplied Feldstein with more details about events referenced in the “smoking gun” email. Feldstein’s conversation with Piona reinforced his belief that the email from Sack to Shapse was evidence of fraud.
In April of 2002, Feldstein filed a qui tam complaint against Organon pursuant to the FCA. After the government declined to intervene in June of 2006, see 31 U.S.C. § 3730(b)(4)(B), Feldstein filed an amended, one-count complaint in the United States District Court for the District of New Jersey on April 14, 2008. The complaint alleged that Organon concealed the respiratory dangers of Raplon and contended that Raplon’s regulatory approval was “invalid” because it was obtained through fraud on the FDA. The consequence of this fraud, Feldstein alleged, was that hospitals, physicians and patients submitted “false claims” to Medicare and Medicaid, because those programs “would not have reimbursed ... for the use of Raplon had [they] known that the FDA approved Raplon without the benefit of adequate disclosures” regarding Raplon’s potential for harmful side effects.
The District Court dismissed Feldstein’s complaint for lack of jurisdiction because it concluded that Feldstein’s claim was foreclosed by the FCA’s public disclosure bar. See 31 U.S.C. § 3730(e)(4)(A). As an alternative holding, the District Court concluded that Feldstein’s “false claims” alie-*741gations were generalized and speculative, and thus dismissed the complaint for failure to comply with Rule 9(b).
Feldstein filed this timely appeal. Jurisdiction in this court arises under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s dismissal under Rule 12(b)(1). United States ex rel Paranich v. Sorgnard, 396 F.3d 326, 331 (3d Cir.2005).2
II.
The FCA’s public disclosure bar provides that “[n]o court shall have jurisdiction” over a qui tam action brought by a private plaintiff if that action is “based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing,” certain government reports, or “the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A). In other words, if Feld-stein’s complaint is “based upon” allegations that were previously disclosed in certain qualifying public sources, his claim is barred unless he is an original source of those allegations. The list of qualifying sources includes certain government reports and the news media. See id. It also includes allegations contained in civil complaints. United States ex rel. Stinson, Lyons, Gerlin & Bustamante P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1157 (3d Cir.1991).
A. Feldstein’s Claim Was “Based Upon” Publicly Disclosed Allegations
A “qui tam action is ‘based upon’ a qualifying disclosure if the disclosure sets out either the allegations advanced in the qui tam action or all of the essential elements of the qui tam action’s claims.” United States ex rel Mistick PBT v. Hous. Auth. of City of Pittsburgh, 186 F.3d 376, 388 (3d Cir.1999) (emphasis added). “To be ‘based upon’ the publicly revealed allegations or transactions,” the allegations in the relator’s complaint need not be “actually derived from” the publicly disclosed allegations. United States ex rel. Atkinson v. Pa. Shipbldg. Co., 473 F.3d 506, 519 (3d Cir.2007). Rather, they “need only be ‘supported by1 or ‘substantially similar to’ the disclosed allegations and transactions.” Id. Substantial similarity exists where there is “substantial identity” between the publicly disclosed allegations and the allegations in the relator’s complaint. United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 514 (6th Cir.2009).
We conclude that the allegations in Feldstein’s complaint are substantially similar to allegations that were publicly disclosed in earlier Raplon-related personal injury lawsuits against Organon. The central premise of Feldstein’s false claims theory is the allegation that Organon concealed the harmful side effects of Raplon, both before and after its FDA approval. For example, Feldstein alleged that Orga-non:
• “[Fjailed to disclose to the FDA instances and the severity of the SAEs associated with Raplon both before and after obtaining FDA approval”;
• “[Njever advised doctors or patients of the potential for SAEs in any labeling or package insert and never had a treatment protocol in place prior to or even after launch”;
• “[Njever informed the FDA, hospitals, physicians or patients that Raplon posed a serious threat to public health *742and safety” before it withdrew the drug from the market;
• “[K]nowingly misrepresented and/or concealed relevant information from the FDA in order to obtain, and subsequently retain, regulatory approval for Raplon”; and
• “[K]nowingly failed to warn hospitals, physicians and patients of the dangers posed by Raplon” from August 1999 through March 2001.
Substantially similar allegations of concealment of the harmful side effects of Raplon — specifically its potential to cause bronehospasm and cement lung' — were asserted in the complaint filed in Rogers v. Organon, Inc., No. 190698B, in Texas state court in February of 2002. The complaint in Rogers alleged that Raplon “causes and contributes to severe and disabling medical conditions including severe bronehospasm which can result in death or ‘cement lung’ ” and that “[p]rior to marketing Ra-plon, ... Organon knew or should have known that Raplon could cause death or cement lung as a result of severe bron-chospasm.” It further alleged that Orga-non failed “to ascertain and report the existence, nature, and extent of the risk of severe bronehospasm posed by Raplon”; failed to “give an adequate, meaningful warning regarding the significant risk of bronehospasm and/or cement lung related dysfunctions of Raplon”; and “[r]ecklessly, falsely, and/or deceptively represented or knowingly omitted, suppressed, or concealed facts of such materiality regarding the safety and efficacy of Raplon from prescribing physicians and the consuming public.” At a minimum, there is “substantial identity” between these allegations and the allegations of fraud in Feldstein’s complaint. Poteet, 552 F.3d at 514.3
Feldstein contends that his allegations are not “based upon” the allegations in Rogers because that complaint sounded in negligence, failure to warn, and breach of warranty, and made no reference to Medicare, Medicaid, or false claims. This distinction is unavailing. Feldstein’s identification of one specific legal consequence of the alleged fraud — the possible submission of false claims to Medicare and Medicaid— does not change the substantially similar nature of the underlying allegations of fraud and concealment in each action. See United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 688 (D.C.Cir.1997) (noting that a “relator’s ability to recognize the legal consequences of a publicly disclosed fraudulent transaction does not alter the fact that the material elements of the violation already have been publicly disclosed”); Kennard v. Comstock Res., Inc., 363 F.3d 1039 (10th Cir.2004) (same); A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1245 (9th Cir.2000) (noting that the “mere fact that [the relator’s] own expertise ... enabled it to formulate its novel legal theory of fraud is irrelevant to the question of whether the *743material transactions giving rise to the alleged fraud were already disclosed in the public domain in the first place”).
The allegations of fraud in Feldstein’s complaint are substantially similar to allegations that were publicly disclosed in the Rogers complaint. Therefore, the District Court correctly held that the allegations in Feldstein’s complaint were “based upon” those publicly disclosed allegations for purposes of the public disclosure bar.
B. Feldstein Was Not an “Original Source”
Because Feldstein’s allegations were “based upon” public disclosures, the District Court lacked jurisdiction over his claim unless he was an “original source” of the allegations in his complaint. To qualify as an “original source,” the private plaintiff must have “direct and independent knowledge of the information on which the allegations are based and ... voluntarily provide[] the information to the Government before filing” the action. 31 U.S.C. § 3730(e)(4)(B). “Direct” knowledge means knowledge that is “immediate” and “marked by absence of an intervening agency[.]” Stinson, 944 F.2d at 1160. The “independent” knowledge requirement means that “knowledge of the fraud cannot be merely dependent on a public disclosure.” Paranich, 396 F.3d at 336.
We conclude that Feldstein lacked “direct” knowledge of Organon’s alleged fraud. To be direct, Feldstein’s knowledge must have arisen from his “own efforts, ... not by the labors of others, and ... [must not be] derivative of the information of others.” Id. (quoting United States ex rel Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1162 (10th Cir.1999)). It is undisputed that Feldstein was not involved in the FDA approval process for Raplon; he could not have been, for Raplon’s FDA approval predated Feldstein’s employment with Organon. Once employed by Organon, Feldstein did no work related to Raplon. He describes no fraud concerning Raplon that he personally witnessed or in which he participated. His knowledge concerning Orga-non’s alleged fraud was acquired through “intervening agencies],” see Stinson, 944 F.2d at 1160, such as his receipt of the “smoking gun” email from Dr. Sack and his conversation with Piona. This is not the kind of “immediate,” first-hand knowledge required by our precedents. Id. Accordingly, we conclude that Feldstein lacked “direct and independent knowledge of [Organon’s] allegedly fraudulent statements” concerning Raplon, and thus was not an original source. See Mistick, 186 F.3d at 389.
Feldstein’s FCA claim is based on publicly disclosed allegations and Feldstein' was not an original source of those allegations. Therefore, the public disclosure bar of 31 U.S.C. § 3730(e)(4)(A) forecloses his claim.
III.
Because the public disclosure bar applies, we conclude that the District Court lacked jurisdiction over Feldstein’s claim. On that basis, we will affirm the District Court’s judgment. We do not reach the District Court’s alternative holding that Feldstein’s complaint failed to satisfy the heightened pleading requirements of Rule 9(b).
. Schering-Plough acquired Organon in 2007, which was several years after the fraud described in Feldstein's complaint allegedly took place. According to Feldstein, Scher-ing-Plough succeeded to Organon's liabilities and is jointly and severally liable with Orga-non under the FCA.
. The same standard applies to the District Court's dismissal for failure to comply with Rule 9(b), see In re Westinghouse Securities Litigation, 90 F.3d 696, 706 (3d Cir.1996), but as we explain, we need not reach the District Court's dismissal on that ground.
. Several of our cases use the following algebraic representation to explain the public disclosure bar:
If X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed. To draw an inference of fraud, both a misrepresented [X] and a true [Y] state of facts must be publicly disclosed. So, if either Z (fraud) or both X (misrepresented facts) and Y (true facts) are disclosed by way of a listed source, then a relator is barred from bringing suit under § 3730(e)(4)(A) unless he is an original source.
Atkinson, 473 F.3d at 519 (emphasis added, internal citations and alterations omitted). Our conclusion, stated in these terms, is that the "Z” (fraud) component of the equation was publicly disclosed before Feldstein filed his complaint. Therefore, we need not analyze the X and Y components.
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OPINION
PER CURIAM.
André Jacobs has filed an appeal from an order of the United States District for the Western District of Pennsylvania. We must first consider the scope of this appeal; a short background is set forth below to provide a context for the jurisdictional issues.
I.
Jacobs filed a complaint in 2002 alleging that prison officials violated his Eighth Amendment and Due Process rights in conjunction with an incident that occurred in April 2001 while he was confined at a state prison, S.C.I. Pine Grove. On April 20, 2001, Officer Thomas Heck and Nurse Friday were making medication rounds in the restricted housing unit where Jacobs was housed. Jacobs was prescribed a cream which was distributed in a paper medicine cup. The normal practice was to ask the inmate to give up the old (presumably empty) cup in order to get a new one. Medicine was distributed through a slot in the door with a locked flap (the “piehole”). On the day in question, Heck had been asked to inform Jacobs that he would have to give up two medicine cups to get a new one (apparently an officer saw two cups in Jacobs’ cell during an inspection). Jacobs became upset, and said he did not have an additional cup. He had his hand in the open piehole. Heck’s and Jacobs’ versions of what happened next differ.
According to Jacobs, Heck threatened to break his hand if he did not remove it from the piehole. When Jacobs did not remove his hand, Heck hit his hand with a baton. Heck then attempted to close the door to the piehole and slammed Jacobs’ hand about three times while Jacobs was screaming. A nurse came later, gave him an icepack and taped his finger to a splint. Jacobs believed his finger was broken.
According to Heck, at the time of the incident, Jacobs reached his entire arm through the piehole and tugged on the keys on Heck’s belt. Heck swatted Jacobs’ hand away. He told Jacobs three times to remove his hand, and when he did not, he closed the piehole on Jacobs’ hand, but not with much force. He testified that he did not have a baton on that day and that an officer would only carry batons in specific circumstances, not including medicine rounds. Nurse Friday’s report stated that Heck struck Jacobs’ hand with a black object.
The case proceeded with discovery and motions to dismiss. The Court ordered that the complaint be dismissed as to several defendants (see, e.g., docket # 52, 105, 110). The Comb also denied Jacobs’ motions for appointment of counsel (docket # 32, 43, 119). The parties settled the matter, but Jacobs then filed a motion to reopen, which was granted. The case proceeded to trial against defendant Heck, with Jacobs proceeding pro se. The jury found in favor of Heck on March 4, 2005, and the Court entered a judgment on March 7, 2005. Jacobs filed a motion for a new trial on March 11, 2005. On March 14, 2005, Jacobs filed a notice of appeal, which states, in its entirety, “Plaintiff gives notice that he intends to appeal the Dis*746trict Judge’s order of April 19, 2004 (Doc. No. 115) denying appointment of counsel.” This Court stayed the appeal pending disposition of the motion for a new trial, which the District Court denied on March 21, 2006. Jacobs did not appeal the decision denying the motion for a new trial.
II.
In his informal brief,1 Jacobs indicates that he is appealing the following orders: (1) order dated May 28, 2004 denying motion for counsel; (2) order dated January 31, 2006 denying his motion for a new trial; (3) order dated February 15, 2005 denying prison official witnesses; (4) order dated January 15, 2004 dismissing defendants White and Sasway; (5) order dated February 27, 2004 granting summary judgment for defendants Tatum, Boyles, Johnson, Winstead, Buck and Cammeron; and (6) order dated June 3, 2003 granting Dr. Hamad summary judgment. However, as noted, only the order denying Jacobs’ motion for appointment of counsel is specified in his notice of appeal.2 The question here is whether the Court has appellate jurisdiction to review the other orders listed above.
We first consider the order denying Jacobs’ motion for a new trial. While that motion was pending in the District Court, we issued a stay of the appeal. In the order staying the appeal, we informed Jacobs that if he desired “appellate review of the district court’s decision regarding the post-decision motion,” he would be required “to file an amended notice of appeal within the time prescribed by Rule 4 [of the Federal Rules of Appellate Procedure ] measured from the entry of the order disposing of the last outstanding post-decision motion.” Order entered March 31, 2005, see District Court docket # 181. Because Jacobs failed to file an amended notice of appeal, the order denying his motion for a new trial is not properly before us. Fed. R.App. P. 4(a)(4)(B)(ii); Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665-66 (6th Cir.2008).
We next consider whether we may review the remaining orders that were not specified in the notice of appeal. Pursuant to federal rules, a notice of appeal “must ... designate the judgment, order, or part thereof being appealed.” Fed. RApp. P. 3(c)(1)(B). The Court construes this rule liberally, and will exercise appellate jurisdiction over orders not specified in the notice of appeal where: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998).
We find that the requisite connection does not exist between the order specified in Jacobs’ notice of appeal and the order dated January 15, 2004 dismissing defendants White and Sasway; the order dated February 27, 2004 granting summary judgment for defendants Tatum, Boyles, Johnson, Winstead, Buck and Cammeron; and the order dated June 3, 2003 granting Dr. Hamad summary judgment. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (notice of appeal specifying orders entered in favor *747of three defendants did not bring up for review unspecified earlier order granting summary judgment in favor of two other defendants; noting cases where the requisite connection exists).
Significantly, the order denying Jacobs’ motion for appointment of counsel was non-appealable when entered. It became appealable when the District Court entered judgment in favor of the remaining defendant following the jury trial, as that order finally disposed of the case as to all claims and all parties. See Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.1984). Jacobs’ notice of appeal is thus not like the one in Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992), which specified the final order in the case (entered in favor of the last two remaining defendants). In Shea and like cases, the Court held that a notice of appeal specifying a final order is sufficient to bring up an unspecified earlier order for review because, relevantly, the earlier order could not have been appealed until the final order was entered. See, e.g., Murray v. Commercial Union Ins. Co., 782 F.2d 432, 434-35 (3d Cir.1986); Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984). In those cases, the specified order was connected to the unspecified order in that the specified order caused the unspecified order to become appealable. That connection does not exist where, as here, the specified order is not the final order in the case. Cf. Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990) (notice of appeal that specifies order that was interlocutory and non-appealable when entered limits appeal to questions raised by that order).
Returning to the test we enunciated in Polonski, we find apparent Jacobs’ intent to appeal the District Court’s order denying his April 2004 motion for appointment of counsel. We note that this motion sought the assistance of counsel in conducting discovery. We thus find a connection to Jacobs’ claims that problems he had in the course of discovery (following this denial) were due to the District Court’s failure to appoint counsel. We also liberally construe the notice, which was filed after Jacobs lost at trial, to assert that the outcome of the trial would have been different if counsel had been appointed. Our decision to review these issues does not prejudice appellee Heck, as he has chosen to respond to all the issues that Jacobs briefed.3 We now proceed to discuss the merits of the properly raised issues.
III.
A district court’s decision to deny counsel to an indigent litigant is reviewable by a court of appeals for abuse of discretion. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir.1993). In determining whether appointment of counsel is warranted, the District Court must first determine whether the litigant’s claim has arguable merit in fact or law. Id. at 155. If this threshold is met, then a court must consider the litigant’s ability to present the case, taking into account the litigant’s education, literacy, prior work experience, prior litigation experience, and ability to understand English. Id. at 156. A court also must evaluate the complexity of the legal issues in the case, the degree to which factual investigation will be necessary (and the litigant’s ability to pursue such investigation), the likelihood that the case will turn on credibility determinations, the need for expert testimony in the case, and litigant’s ability to retain counsel. Id. at 156-57.
As Jacobs’ claims against Heck proceeded to trial, he can meet the thresh*748old showing of arguable merit. Jacobs was without funds to obtain counsel, and it was likely that his case would turn on credibility determinations. However, Jacobs demonstrated through his filings in the District Court that he is articulate and able to understand English. His claims were not particularly complex. Furthermore, his case was largely the retelling of events that happened in his presence, so, to that extent, he did not need to engage in an extensive investigation. He did not require an expert witness. Accordingly, although some factors weighed in favor of appointing counsel, the District Court did not abuse its discretion in denying Jacobs’ motion. We now turn to Jacobs’ claims that discovery and/or trial was unfair because counsel was not appointed.
IV.
A.Internal Investigation Report
Jacobs complains that his trial was not fair, because he had asked defendants in discovery to produce a report of an internal investigation into Jacobs’ claim that Heck had used excessive force against him (“the report”), but defendants insisted no such report existed. Then, however, Heck’s attorney produced a copy of the report at the end of the first day of trial, and Jacobs was allowed to review it. First, we note that it is not clear that the report would have been produced earlier if Jacobs had been represented by counsel. Second, even though the timing was not optimal, we note that the District Court gave Jacobs the opportunity to review the document, and he was able to use it to examine Heck in the trial. T.T. (March 1, 2005) (Doc. 194), 40-45. Third, as the report concluded that Heck was not guilty of abuse, it was not particularly helpful to Jacobs. We do not believe that the trial was unfair based on Jacobs’ late receipt of the report.
B. Heck’s inconsistent defense
Jacobs argues that the trial was not fair because in discovery Heck stated that any injury Jacobs sustained during the April 2001 incident was due to an accident, but at trial Heck admitted that he used deliberate action against Jacobs (“swatting” his hand). Jacobs also notes that in interrogatory responses Heck answered that he would have been authorized to carry a baton on April 20, 2001, but at trial he responded that given the circumstances of the incident, he would not have been authorized to have a baton with him at the time. As Heck notes in his appellate brief, Jacobs ably examined Heck about these inconsistencies at trial. See, e.g., T.T. (Feb. 28, 2005) (Doc. 193), 29, 36; T.T. (March 3, 2005) (Doc. 196), 58-59. The fact that Jacobs was ultimately unsuccessful does not mean that the trial was unfair.
C. Right to subpoena witnesses at public expense
Federal courts are not authorized to waive or pay witness fees for indigent litigants. Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir.1993) (per curiam); cf. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (no statutory authority for payment of expert witness fees in civil litigation). We therefore find that the District Court did not err in holding that Jacobs must pay the fees and costs for any prison official he wished to subpoena for trial.
D. General claim that Jacobs was disadvantaged by proceeding pro se at trial
Jacobs claims he “encountered difficulties in complying with the rules of court.” Jacobs claims that he did not know when opposing counsel was asking leading question, and he did not have the knowledge and skill to properly cross-examine defendants’ expert witness. We have examined *749the trial transcript, and we find that Jacobs was not prejudiced by his pro se status. The Court admonished defendants’ counsel not to ask leading questions, and was very careful to assure that counsel for the defendants was not able to ask leading questions simply because Jacobs failed to object. See, e.g., T.T. (March 1, 2005) (Doc. 194) 166-70. Jacobs also complains that he was not able to properly cross-examine the “expert witness” (the nurse who was making rounds with Heck on the day of the incident); however, Jacobs engaged in extensive cross-examination of the witness, T.T. (March 1, 2005) (Doc. 194) 178-208, and brought out inconsistencies between her testimony and written reports, see, e.g., T.T. (March 1, 2005) (Doc. 194) 198-99. Any difficulties Jacobs may have had were not so extreme as to render the trial unfair.4
V.
After reviewing the record, including the trial transcripts, we conclude that Jacobs had a fair opportunity to present his claims against Heck. The District Court did not abuse its discretion in denying Jacobs’ motion for appointment of counsel. We therefore affirm the judgment of the District Court.
. This Court asked Jacobs to file a Statement of Issues to be Presented on Appeal, in order to determine whether appointment of counsel would be useful. All of the issues noted in the Statement are also included in his brief.
. Actually, the order designated in the notice of appeal is the order entered by the Magistrate Judge on April 26, 2004 (dated April 19, 2004). Jacobs appealed this order to the District Court Judge, who denied the appeal in the order dated May 28, 2004.
. We need not consider prejudice to the other appellees, as the issues we consider involve proceedings and decisions taking place after those parties were dismissed. As noted, Jacobs has not properly appealed the orders dismissing those parties in the District Court.
. In his brief, Jacobs refers us to pages 174-76 of the second day of trial. In that portion of the trial, Jacobs successfully objected to a question that Heck's counsel asked the nurse witness, but thought the Judge was asking for the basis of his objection when she was actually asking Heck’s attorney to lay a foundation for the line of questioning. The Judge explained what she was asking, and we do not believe Jacobs was prejudiced in any way.
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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/8477396/
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OPINION
SLOVITER, Circuit Judge.
Appellants Duryea Borough, the Borough Secretary, and members of the Borough Council (collectively “Defendants”) appeal a jury’s verdict and award of punitive damages on claims that they violated the First Amendment right to petition of appellee Charles J. Guarnieri, the former Chief of Police of Duryea. Guarnieri cross-appeals the District Court’s reduction of his attorney’s fees.
I.
Background
In February 2003, the Duryea Borough Council dismissed Guarnieri from his position as Chief of Police. Guarnieri filed a union grievance, which led to an arbitration. After about two years, Guarnieri prevailed and was reinstated to his position as Chief.
On his first day back, in January 2005, the Council issued eleven “directives” to Guarnieri. These directives comprised a list of things that Guarnieri must do or could not do on the job. Guarnieri filed a union grievance to complain about the directives, which led to another arbitration. Ultimately, the arbitrator directed Duryea to modify or abandon some of the directives.
Other disputes, often petty, arose between Guarnieri and Defendants.1 As a result, Guarnieri filed this lawsuit, claiming in relevant part that the directives and *752other acts by Duryea constituted unconstitutional retaliation for his having filed and won his 2003 grievance.
In December 2006, Guarnieri submitted a request for approximately $338.00 in overtime. The overtime was denied by the Council on the ground that Guarnieri did not explain why the overtime was necessary. The Department of Labor investigated and “found [that withholding the] overtime ... was a violation” of the law. App at 649. Guarnieri amended his complaint to add the overtime denial as a retaliatory act.
Three of Guarnieri’s First Amendment retaliation claims reached the jury: (1) the issuance of the directives; (2) the purported delay in the issuance of health insurance benefits; and (3) the withholding of overtime. The jury found for Guarnieri on the first and third claims, and awarded him a total of $45,358.00 in compensatory damages — $5,000 against each individual defendant for damages deriving from the directives; and $350.00 for damages due by the Borough and one dollar due from each individual for withholding the overtime. The jury also awarded Guarnieri a total of $52,000 in punitive damages— $3,000 against each individual defendant for issuance of the directives, and $3,500 against each individual defendant for the overtime.
The District Court denied Defendants’ motions for judgment as a matter of law and for a new trial. The Court, however, granted in part Defendants’ motion to reduce the attorney’s fees requested by Guarnieri. It first reduced the requested number of hours (473.8) by ninety-one because of “duplicativeness [with a similar First Amendment retaliation case against Duryea brought by a Borough employee, also represented by Guarnieri’s lawyer] ... inapplicability ... [and] excessiveness.” App. at 47-48. After making some other deductions, the Court arrived at a “total of three hundred ninety (390) hours” that it found to be reasonable for the work performed by Guarnieri’s lawyer through the trial. App. at 48. The Court then added thirty-two hours for post-trial work to which Defendants did not object and made a few other adjustments to the total hours not relevant here.
After reviewing Guarnieri’s counsel’s experience, the Court determined that a reasonable rate was $215 an hour, rather than the requested rate of $300 an hour. The Court referenced its prior decision in Lohman v. Borough, No. 05-CV-1423, 2008 WL 2951070, at *7-8 (M.D.Pa. July 30, 2008), where it had fixed Guarnieri’s counsel’s fee at $215 an hour. The District Court calculated that the “lodestar” for the sum of all legal work on Guarnieri’s case was $102,110.25. The Court made a further, omnibus reduction to the lodestar of over 50%; in the end it awarded only $45,000 in fees.2
II.
Analysis
Defendants contend they are entitled to judgment as matter of law, arguing: (1) that the evidence did not support a finding of punitive damages; (2) that the First Amendment does not protect government employees from retaliation for the filing of petitions unless they address matters of *753public concern; (3) that Guarnieri’s petitioning activity was not protected because it was performed pursuant to his official duties; (4) that Defendants were entitled to qualified immunity because the law was not clearly established; and (5) that, for a variety of reasons, the evidence was insufficient to support liability. Defendants also argue they are due a new trial because the District Court denied their request to introduce into evidence sections of the 2005 arbitrator’s report. Guarnieri cross-appeals the Court’s omnibus reduction of the lodestar.
A. The First Amendment and Qualified Immunity
This court held that “a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.” Foraker v. Chaffinch, 501 F.3d 231, 236 (3d Cir.2007) (citing San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.1994)). Defendants urge us to overrule that holding because other courts of appeals disagree, see San Filippo, 30 F.3d at 440 n. 19 (collecting cases); Martin v. City of Del City, 179 F.3d 882, 889 (10th Cir.1999), but we are bound by our prior holding.
Defendants also assert that “neither the Third Circuit nor the Supreme Court has decided the question of whether or not an employee who is petitioning the government pursuant to his official duties is acting as a citizen for First Amendment purposes.” Appellants’ Brief at 24 (citing Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). We need not decide that issue because Defendants cite to no evidence that Guarnieri’s union grievance was made pursuant to his official duties.
Our decision in San Filippo is clearly established, controlling law, and Defendants are not entitled to qualified immunity. See Francisco Jose Rivero v. City and County of San Francisco, 316 F.3d 857, 865 (9th Cir.2002) (“The issue is not what the law was or might have been in other circuits----[i]t is, rather, what the ‘controlling authority in [the defendants’] jurisdiction [was] at the time of the incident.’ ” (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999))).
B. Sufficiency of the evidence3
Defendants’ argument that Borough Secretary Morreale is not liable because she was merely performing clerical duties belies the evidence. Among other things, the Council acted through Morr-eale, Duryea’s personnel manager, who was responsible for paying Guarnieri, and the directive stating that Guarnieri had to obey orders was given by the Council through Morreale. “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).
Defendants also argue that there was no evidence that Dommes, Groblewski, Orkwis, Webb, Yager, and Orloski were involved in the withholding of overtime. However, they all had been Council members at some time and did not argue to the jury that they were no longer Council members when the decision denying Guarnieri’s overtime pay was made.4 The District Court referenced ample witness testi*754mony from which a juror could reasonably infer it was the Council that withheld the overtime.
Defendants’ arguments that the only evidence of retaliation was temporal proximity, and that the temporal proximity evidence was insufficient are unpersuasive. The directives were issued the day that Guarnieri returned to work; there was evidence of continued acrimony between Guarnieri and Defendants; and this action was ongoing when the overtime was withheld.
Defendants argue that the issuance of the directives and the failure to pay Guarnieri for overtime would not have deterred “a person of ordinary firmness from exercising his constitutional rights.” Appellants’ Brief at 35. First Amendment retaliation claims are indeed cognizable only when the retaliatory act would “ ‘deter a person of ordinary firmness’ from exercising his First Amendment rights,” Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.2000), but the “ ‘deterrence threshold,’ ... is very low .... [asj a cause of action is supplied by all but truly de minimis violations,” O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir.2006) (citing Suppan, 203 F.3d at 234-35). “Even ‘an act of retaliation as trivial as failing to hold a birthday party for a public employee,’ if ‘intended to punish her for exercising her free speech rights,’ may be actionable. ...” O’Connor, 440 F.3d at 128 (quoting Suppan, 203 F.3d at 234) (internal quotations omitted). The jury was instructed to determine whether the retaliation in this case would have deterred a person of ordinary firmness, and we will not second-guess its verdict.
The argument of Duryea Borough that it had no policy or custom concerning any of the actions of which Guarnieri complains and therefore has no liability is unavailing because a “single decision by a final policy-maker ... may constitute official policy,” San Filippo, 30 F.3d at 445 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). There was ample evidence that the Council both made Borough policy and was responsible for the retaliatory acts.
C. New trial
Defendants challenge the District Court’s exclusion of the 2005 arbitrator’s report. Defendants do not specify any error in the District Court’s reasoning that the report was hearsay. Them citations and arguments concerning prejudice, however, are unconvincing; indeed, during the trial the Court upheld many of their objections to Guarnieri’s use of the report. Defendants had ample opportunity, which they used, to tell their position.
D. Punitive damages
Defendants argue that there was insufficient evidence to support the jury’s award of punitive damages. See Springer v. Henry, 435 F.3d 268, 281 (3d Cir.2006) (holding that a “jury may award punitive damages when it finds reckless, callous, intentional, or malicious conduct.”). We agree with them on this point. Although the record supports the jury’s finding that issuance of the directives and the withholding of overtime pay were retaliatory acts, and that those acts were petty and careless, neither those acts, nor any of the other petty and careless acts committed by Defendants, show “reckless or callous indifference to the federally protected rights of others.” Brennan v. Norton, 350 F.3d 399, 428 (3d Cir.2003) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). Overall, these acts support little “more than the retaliatory motive itself.” Brennan, 350 F.3d at 429-30.
*755E. Attorney’s fees
Finally, in his cross-appeal Guarnieri challenges the District Court’s reduction of the lodestar. The District Court gave the following reasons: (1) the “overlapping labor” with the Lohman case; (2) its belief that Guarnieri’s case was not novel or difficult because the issues were similar to those in Lohman, and because counsel had brought § 1983 claims in the past; (3) the case was taken on a contingency basis, which, at an assumed 33% fee rate (no rate was provided to the Court) would have resulted in an attorney’s award of about $40,000; and, (4) the attorney’s fee award in Lohman was only $30,000.5 Reliance on these reasons was legal error.6
“We review a district court’s award of fees for abuse of discretion[,] ... review a district court’s factual determinations, including ... the number of hours [an attorney] reasonably worked on the case, for clear error[,] ... [and][w]e exercise plenary review over the legal standard that the district court used in calculating the award.” United Auto. Workers Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007) (citations and quotations omitted); Student Pub. Interest Research Group of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1442 n. 3 (3d Cir.1988).
In City of Burlington v. Dague, the Supreme Court stated that “the difficulty of establishing [the] merits” of a claim is “ordinarily reflected in the lodestar ... [and thus] [t]aking account of it again through lodestar enhancement amounts to double counting.” 505 U.S. 557, 562-63, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (internal citations omitted). The Supreme Court has also “specifically held ... that the ‘novelty [and] complexity of the issues,’ ‘the special skill and experience of counsel,’ the ‘quality of representation,’ and the ‘results obtained’ from the litigation are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (quoting Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); United Auto. Workers, 501 F.3d at 292.
The factors on which the District Court relied in reducing this “lodestar,” i.e., the difficulty of the ease, overlapping hours, and counsel’s experience, were the same as the factors it considered in establishing the lodestar.7
The District Court also erred by using the contingency nature of a case to reduce fees, a practice specifically prohibited by Dague. See 505 U.S. at 561-62, 112 S.Ct. 2638.8 In addition, the District Court’s *756use of the fee award in Lohman (where the lodestar was significantly lower) as support for the downward multiplier was error. The award in that case was reduced significantly because the plaintiff had rejected a settlement offer that was much higher than the ultimate jury award. Lohman, 574 F.3d 163. There is no evidence of such an offer here. Further, the jury in Lohman awarded the plaintiff only $12,000. Other than overlapping work and counsel’s familiarity with the legal issues, both of which were subsumed into the lodestar, there is little reason why the fee award in Lohman is relevant.
III.
Conclusion
The jury’s verdict on the merits will be upheld except for the punitive damages award, which will be vacated. This case will be remanded to the District Court for a recalculation of attorney’s fees consistent with the standards articulated in this opinion.
. For example, the Council apparently told Guarnieri not to participate in truancy and *752seat belt programs even though those activities were funded by a grant and cost the Borough nothing. Also, Guarnieri sought to have his health insurance cover his wife, but the Borough Secretary, Morreale, did not credit Guarnieri's assertion that he was married and demanded additional paperwork, even though Guarnieri submitted a marriage licence signed by Duryea’s mayor.
. The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. This court has jurisdiction under 28 U.S.C. § 1291.
. "We review a denial of judgment as a matter of law de novo, viewing the evidence in the light most favorable to the prevailing party.” Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir.2006) (citing Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.2005)).
. Dommes and Webb testified but apparently never denied that they or others participated *754on the Council at the relevant times.
. Notably, the District Court did not apportion based on the number of successful claims. Nor did the District Court characterize the work by Guarnieri's attorney as inferi- or.
. Guarnieri also argues the District Court erred in setting counsel's hourly rate at $215. That rate is not clear error. See United Auto. Workers Local 259 Soc. Sec. Dep’t v. Metro Auto Ctr., 501 F.3d 283, 290 (3d Cir.2007); see also Lohman 574 F.3d at 164 n. 1.
. The District Court further erred because it gave Defendants relief they never asked for— Defendants only requested reductions for specifically identified hours as overlapping with Lohman, and stated that ”[i]f time was marked as specifically for work done on the Guarnieri matter, Defendants do not seek to reduce that time.” Dist. Ct. Dkt. 133 pg. #14. Ordinarily, Courts should not sua sponte apply negative multipliers. See Rode v. Dellarciprete, 892 F.2d 1177, 1192 (3d Cir.1990).
.We recognize that the referenced Supreme Court cases prohibited double counting in connection to the increase of fees awards, and that here the District Court decreased the *756fees. However, Defendants make no argument, and we can think of none, why these holdings would not apply equally to prohibit a district court from double counting to reduce fees. See, e.g, Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1048 (9th Cir.2000) (“A district court may not rely on a contingency agreement to increase or decrease what it determines to be a reasonable attorney’s fee.”).
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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/8477399/
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OPINION OF THE COURT
ALDISERT, Circuit Judge.
The lead petitioner Shermamat Abdullo-zoda, a native and citizen of Uzbekistan, of Iranian descent, seeks a review for himself and members of his family of a decision of the Board of Immigration appeals (“BIA” or “Board”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the ground that the petitioners did not meet their burden of showing past harm rising to the level of persecution or a well-founded fear of future persecution. They also contend that the BIA abused its discretion by declining to equitably toll the filing deadline for petitioners’ motion to reopen based on a Human Rights Watch letter. Finally, petitioners argue that indiscernible testimony in the record of the IJ’s proceedings prevented the Board from conducting a meaningful review. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition.
I.
An alien who is in violation of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., is subject to removal from the United States. However, the Attorney General in the exercise of discretion may grant relief from removal in the form of asylum to an alien who proves that he or she is a refugee. An alien is a refugee if he or she is unable or unwilling to return to his or her country for the so-called statutory grounds “of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or *758political opinion[.]” 8 U.S.C. § 1101(a)(42)(A). The burden of proof is on the alien to establish that he or she is a refugee. 8 U.S.C. § 1158(b)(l)(B)(i).
An application for asylum in removal proceedings is also considered to be a request for withholding of removal. To succeed in attaining withholding of removal, the alien in the proceedings bears the burden of establishing that he or she would “more likely than not” suffer persecution in a country of removal on account of one of the enumerated statutory grounds. Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir.2005). This requires an alien to show a “clear probability” of persecution. INS v. Stevic, 467 U.S. 407, 429, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Withholding of removal is also available on separate grounds under the CAT for any person to a country in which there are substantial grounds for believing that the person would be in danger of being subjected to torture. The burden is on the alien “to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Protection under the CAT differs from asylum or withholding of removal because it does not require a showing that the mistreatment was or would be on account of any particular characteristic of the victim such as race, religion, nationality, membership in a particular social group, or political opinion.
We now address the facts with these legal precepts in mind.
II.
Abdullozoda testified at the hearing before the Immigration Judge (“IJ” or “judge”) that he was called names in elementary school and a student once burned him. While serving his military duty, he was called “black face” and beaten once because of his Iranian ancestry, and was dishonorably discharged after six months of service. In 1985, Abdullozoda’s college application was denied. He did not pass the entrance examination, and he believes that he failed due to his nationality. Ab-dullozoda was admitted to college in 1987. He began working for the Ministry of Finance in 1996. In the course of auditing investment projects, he learned that his supervisor was accepting bribes for her approval of projects. He complained, but other Ministry workers rejected his concerns and, according to the Petitioner, insulted his Iranian ancestry.
Abdullozoda testified that in 2000 he returned home after a visit to the United States and two men attacked him. Abdul-lozoda also testified that they threatened him and said, “Stop putting your nose into other people’s business — you’re an Arab!” He testified that the men stabbed him in the hand, that he was rushed to the hospital for surgery, and that his wife went to the police to report the incident, but they failed to find or arrest the perpetrators. Abdullozoda believes that the police did not find them because of his nationality. A letter from the police states that the investigation was closed due to a lack of witnesses. In December 2002, Abdullozo-da received a summons to appear in the District Department of Internal Affairs where he was ultimately questioned about a Muslim extremist organization, held overnight, and then released. Abdullozoda testified that in the Fall of 2003 his children had problems in school, culminating with his son Sardor coming home with bruises after fighting with several children who accused his family of being terrorists.
In February 2004, a person followed Ab-dullozoda after work and attacked him on the street. The person called him an Arab and broke his nose. Petitioner filed a police complaint after he went to the hospital and he testified that the police took no further action. In May 2004, he and his *759family returned home to find that their home was burglarized. The intruders left a sign stating, “Arab, get out of Uzbekistan! You are a traitor!” The sign warned Abdullozoda to “keep [his] mouth shut!” The police responded to his call, but a day later informed Abdullozoda in writing that they would not investigate the case due to a lack of witnesses and lack of harm to anyone. Abdullozoda stated that when the police came to his home, they wanted to know whether he might be a terrorist. In June 2004, he came to the United States and applied for asylum. His family had already arrived for an academic competition for the children. Abdullozoda was subsequently fired from his job for leaving it. In May 2005, Abdullozoda’s brother was allegedly murdered. Abdullozoda testified that the perpetrators were never found. We now turn to the evaluation of his testimony by the I J.
III.
The IJ found Abdullozoda and his wife credible, but concluded that the discrimination Abdullozoda and his wife suffered in their schooling did not constitute past persecution, and in any event, certain events to which he testified were too remote in time to support a fear of future persecution. The IJ noted that the incident involving their son at school was an isolated event, and further found that Abdullozo-da’s brief detention in 2002 did not constitute an act of persecution, as police made clear that they were simply questioning his involvement in any terrorist organization, and they did not harm him.
The IJ recognized that whistle blowers who expose government corruption might be able to establish asylum eligibility and discussed several cases where aliens publicized their concerns and were then deprived of employment, liberty and safety. The judge stated that Abdullozoda only complained within his workplace, and when he was threatened to stop complaining, he did so, and there was no evidence that Abdullozoda exposed the corruption, nor that he was fired or demoted. The judge also noted that Abdullozoda could not connect his physical assaults to his workplace or to the government. The attacks were not only committed by strangers, but too remote in time to be connected with later events. The IJ found it possible that the crimes were random acts of nationalist violence, and determined that Abdullozoda did not adequately explain why his coworkers would have turned into “thugs” to threaten him instead of simply having him discharged. The judge also determined that there was no evidence of a pattern or practice of persecution against Iranians, and concluded that Abdullozoda had not proven that he was persecuted by the authorities on this basis.
The IJ also noted that Abdullozoda did not attempt to move or look for a new job. Rather, he retained his position in public employment, took vacations paid in part by his employers, and did not seek asylum when he first came to the United States. The judge noted that there was no evidence showing that the government would consider Abdullozoda a minority or encourage the harm that took place. To the contrary, the government issued passports recognizing the family as Uzbekistani nationals, and did not appear to believe that he was connected with a banned political party or part of any Islamist movement. Although ultimately the crimes against Ab-dullozoda were not solved due to lack of evidence, the police both responded and opened files on the crimes. Significantly, the judge noted that Abdullozoda did not tell the police whom he suspected was responsible for the crimes, and the police investigated the incidents that occurred and provided reasonable explanations for closing the cases. Finally, the IJ stated that there was not enough information to connect Abdullozoda to the murder of his *760brother in 2005, more than a year after Abdullozoda left Uzbekistan. An unsuccessful appeal to the BIA followed.
IV.
Abdullozoda contends in his petition for review that documentation from the Human Rights Watch constituted new evidence establishing a change in Uzbekistan policy. He states that Uzbekistan took a confrontational position with the United States and started to persecute formerly successful pro-Western politicians like himself. The Human Rights Watch letter describes growing anti-Western sentiment over the past four years, particularly since 2005, and the Uzbekistan government’s attempts to locate people with ties to Western governments. The letter from the Human Rights Watch opines that if Abdul-lozoda’s story is true, he would face a high risk of persecution on account of his reformist views.
V.
In the appeal to the BIA, the petitioners were unsuccessful on the merits. They then filed a motion for reconsideration, reopening, and reissuance of the BIA’s decision, alleging ineffective assistance of counsel because Attorney Sirota failed to notify them of the Board’s dismissal of appeal and failed to contact Human Rights Watch in the initial litigation. The Human Rights Watch letter was submitted with the motion. The Board denied the motion for reconsideration because it was untimely and did not allege any error of law or fact in its prior decision. The motion for reissuance was treated as a motion to reopen and was granted with respect to the ineffective assistance claim, for failure to advise petitioners of the Board’s decision. The Board vacated and reissued its original decision. The Board did not equitably toll the deadline with respect to the Human Rights Watch letter because, according to the Board, it did not contain new information, as demonstrated by Abdullo-zoda’s previous argument that counsel should have offered the information at the hearing before the IJ. The Board further found that petitioners failed to comply with the requirements of Matter of Lozada by not raising the issue in their bar complaint and failing to show resultant prejudice. 19 I. & N. Dec. 637 (BIA 1988); See Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir.2001) (“We conclude that the Lozada requirements are a reasonable exercise of the Boai'd’s discretion!)]”).
VI.
We review an agency’s findings regarding asylum for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B) (“administrative findings of facts are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Because the Board adopted the findings of the IJ, we have jurisdiction to review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Petitioners failed to establish past persecution and therefore are not entitled to a presumption that they harbored a well-founded fear of future persecution in Uzbekistan. To show a well-founded fear of persecution an alien must demonstrate that his or her fear is both genuine and objectively reasonable. We conclude that substantial evidence supports the IJ and BIA’s conclusion that petitioners failed to show eligibility for asylum based either on a pattern or practice of persecution or on an individualized showing of a well-founded fear. Accordingly, it follows that petitioners did not meet the higher burden of proof for withholding of removal. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir.2004).
When an alien claims that a deficient record prevents the Board from conducting meaningful review or his or her appeal, the alien must show how the alleged defi*761ciencies in the record were prejudicial. Bhiski v. Ashcroft, 373 F.3d 363, 370 (3d Cir.2004). Here petitioners do not identify a single incident of indiscernible testimony that might have established their eligibility for asylum, withholding of removal or the CAT protection. They have therefore failed to show that the deficiencies in the record caused them prejudice.
Motions to reopen are “disfavored” because of the threat they pose to finality. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Id. We consider questions of law de novo, but we otherwise review an order denying a motion to reopen under a highly deferential abuse of discretion standard. See Fadiga v. Att’y Gen., 488 F.3d 142, 154 (3d Cir.2007); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The BIA’s discretionary decision will not be disturbed unless it is arbitrary, irrational or contrary to law. See Guo, 386 F.3d at 562. In the interest of finality, a motion to reopen generally “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(e)(7)(C)(i). In this case, Abdullozoda filed his motion to reopen five months after the Board’s decision and over two months after the 90-day deadline. Under some circumstances, equitable tolling is available for a motion to reopen. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005). Petitioners alleged ineffective assistance of counsel, which can serve as a basis for equitable tolling, if substantiated, and if accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). However, to rely on an ineffective assistance of counsel claim to toll a time limit, the BIA requires an alien to comply with the procedural requirements of Matter of Lozada, a requirement we have held to be reasonable. Lu, 259 F.3d at 129. Petitioners did not comply with the Lozada requirements and did not show that Attorney Sirota’s failure to contact Human Rights Watch amounted to ineffective assistance of counsel, causing prejudice. We agree with the Board’s conclusion that petitioners failed to show “a ‘reasonable likelihood’ that the result would have been different” if the Human Rights Watch letter had “been offered at the hearing.” (BIA Decision, June 26, 2008 (citing Fadiga, 488 F.3d at 159).) Furthermore, petitioners did not exercise the due diligence necessary to win equitable tolling. See Borges, 402 F.3d at 407. Petitioners have not shown that the BIA’s decision was arbitrary, irrational or contrary to law.
We have considered all the contentions raised by the parties and conclude that no further discussion is necessary. The petition for review will be denied.
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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/8477402/
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OPINION
PER CURIAM.
In May 2009, Omini Onen Williams was arrested for allegedly possessing and conspiring to distribute 100 grams or more of heroin. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B). The Government filed a motion seeking to detain Williams prior to trial. Following a pretrial detention hearing, a Magistrate Judge denied the Government’s motion and ordered that Williams be released on $50,000 bail, subject to various conditions. The Government appealed to the District Court, which determined that Williams had failed to overcome the presumption that no condition or combination of conditions would reasonably assure his appearance. See 18 U.S.C. § 3142(e). Williams then filed a motion seeking review of the detention order, which the Government opposed. The District Court denied the motion by order entered July 17, 2009. There was no further action concerning Williams’ detention until November 19, 2009, when he filed in this *765Court a pro se petition for a writ of mandamus. We will deny the petition.
A writ of mandamus is an extraordinary remedy. See In re Pasquariello, 16 F.3d 525, 528 (3d Cir.1994). The petitioner must have no other adequate means to obtain the relief desired and the petitioner must show a “clear and indisputable” right to the writ. See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). In addition, mandamus is not a substitute for an appeal; if a petitioner can obtain relief by an ordinary appeal, a court will not issue the writ. See In re Ford Motor Co., 110 F.3d 954, 957 (3d Cir.1997).
In this case, Williams had an alternate means to challenge the District Court’s denial of his motion seeking review of the detention order. In particular, Williams could have filed a notice of appeal. See 18 U.S.C. § 3145(c) (providing that “[a]n appeal from a release or detention order, or from a decision denying revocation or amendment of such an order, is governed by the provisions of section 1291 of title 28”); Fed. R.App. P. 9(a) (specifying documents that must filed with the court of appeals by a party appealing an order regarding release or detention). We note that the time for filing an appeal from a ruling on a detention order is governed by the 10-day limit set forth in Fed. R.App. P. 4(b)(1)(A). See United States v. Kolek, 728 F.2d 1280, 1281 (9th Cir.1984). Williams filed the mandamus petition approximately four months after the District Court denied his motion seeking review of the detention order. Mandamus relief is not appropriate, however, merely because a petitioner “allowed the time for an appeal to expire.” Oracare DPO, Inc. v. Merin, 972 F.2d 519, 523 (3d Cir.1992).
Accordingly, the petition for a writ of mandamus is denied. We also deny Petitioner’s “Motion for Counsel of Record to Withdraw,” wdiich raises a matter that would properly be adjudicated in 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/8477404/
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OPINION
CHAGARES, Circuit Judge.
National Grange Mutual Insurance Company (“National Grange”) filed a declaratory judgement action concerning insurance coverage for a motor vehicle accident, and Mutual Benefit Insurance Company (“Mutual”) filed a counterclaim for declaratory judgment. Both insurers filed cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. requesting judgment in their favor on their respective complaints. The District Court granted summary judgment in favor of National Grange and denied Mutual’s cross-motion. For the reasons set forth below, this Court will affirm.
I.
Because we write solely for the benefit of the parties, we recite only the essential facts. Kebberly, Inc. provided landscaping, lawn services, excavating, and snow removal services. Michele Kebberly was the sole shareholder, as well as a salaried employee, of Kebberly, Inc. In 2003, a 2004 Chevrolet Tahoe (“Tahoe”) was purchased primarily for use by Kebberly, Inc. and registered to Kebberly, Inc. d/b/a Michele Kebberly and John T. Kebberly.1 The Tahoe was added to the list of covered vehicles in the commercial automobile insurance policy that Kebberly, Inc. maintained with National Grange.
In late 2004, a 2005 Chevrolet Duramax was purchased for business-related use, and Ms. Kebberly began using the Tahoe primarily as a personal vehicle. In January 2005, at Ms. Kebberly’s request, the Tahoe was removed from the National Grange policy’s list of covered vehicles and placed on a personal automobile insurance policy issued by Mutual.
On May 25, 2007, Ms. Kebberly did not use the Tahoe at work. After work, she drove the Tahoe to Alibi’s, a tavern, to meet a friend who was also a Kebberly, Inc. customer. On the way to the tavern, Ms. Kebberly drove by Kebberly, Inc.’s job sites for the following day. At some point, Ms. Kebberly left Alibi’s and drove to another tavern, Bender’s Pit Stop, to spend time with a terminally ill friend. While driving home from Bender’s Pit Stop in the Tahoe, Ms. Kebberly was involved in a motor vehicle accident in which Donald Burton and Faith Burton were seriously injured. The Burtons filed suit against Ms. Kebberly in the Court of Common Pleas of Fayette County, Pennsylvania. Mutual retained counsel to defend Ms. Kebberly in the state court action.
*767On February 29, 2008, National Grange filed a complaint for declaratory judgment against Ms. Kebberly, Kebberly, Inc., Donald Burton, and Faith Burton seeking a declaration that it did not have a duty to defend or indemnify Ms. Kebberly in the underlying state court action. On May 20, 2008, the District Court granted Mutual’s motion to intervene in the action.
The state court action was settled through private mediation on June 6, 2008. Mutual agreed to pay an undisclosed sum of money to the Burtons in exchange for a full and final release of Ms. Kebberly. On June 13, 2008, Mutual filed its own declaratory judgment action seeking a declaration that the National Grange liability coverage was the primary insurance policy and that National Grange was required to reimburse Mutual for the costs and expenses incurred in defending and settling the state court action.2
Both National Grange and Mutual filed motions for summary judgment. The District Court granted National Grange’s motion and denied Mutual’s motion. In so doing, the District Court determined that Ms. Kebberly did not meet the National Grange policy’s definition of “Who Is An Insured” because she was an employee of Kebberly, Inc. and an owner of the Tahoe. Mutual timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). We will affirm if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c)(2). Where a contract is “subject to only one reasonable interpretation” it is appropriate for a court to determine its meaning as a matter of law. Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 163-64 (3d Cir.2001); accord Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 521 (3d Cir.1999) (“When the meaning of contract language is at issue, we affirm a grant of summary judgment only if the contract language is unambiguous and the moving party is entitled to judgment as a matter of law.”).
III.
Mutual argues that the District Court erred by granting summary judgment in favor of National Grange because the National Grange exclusion does not apply when the employee co-owns the automobile with the insured employer. In the alternative, Mutual argues that its policy and the National Grange policy cover Ms. Keb-berly on a co-primary basis and that under the “other insurance” clauses of both policies, National Grange is proportionately liable for the defense and settlement costs.
The National Grange policy states in relevant part:
A. Coverage
We will pay all sums an “insured”' legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
1. Who Is An Insured
The following are “insureds”:
*768a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.
Supplemental Appendix (“SA”) 17. Thus, the National Grange policy applies if the Tahoe is a “covered ‘auto’ ” and Ms. Keb-berly personally meets the criteria under “Who Is An Insured.”
The Declarations page of the National Grange policy lists a “1” under the “Covered Autos” column next to “Liability Insurance.” SA 11. This indicates that “Any ‘Auto’ ” is covered. SA 16. Thus, despite the fact that the Tahoe was removed from the schedule of covered vehicles before the accident, the National Grange policy still provides coverage if Ms. Kebberly falls within the definition of “Who Is An Insured.”
The District Court determined that because Ms. Kebberly was an employee of Kebberly, Inc. and an owner of the Tahoe at the time of the motor vehicle accident, the exception in subsection (b)(2) of “Who Is An Insured” applies and National Grange has no obligation to indemnify Mutual. Mutual argues that because Kebberly, Inc. also owned the vehicle, the policy language does not exclude Ms. Kebberly from coverage.
Assuming without deciding that Ms. Kebberly was acting with Kebberly, Inc.’s permission the night of the accident as required by subsection (b), she is excluded from coverage based on the fact that she owned the Tahoe. It is undisputed that Ms. Kebberly was an employee of Kebberly, Inc. when the accident occurred. It is also undisputed that Ms. Kebberly was listed on the Tahoe’s title. Under Pennsylvania law, “a titleholder is an owner of a vehicle.” Cicconi Auto Body v. Nationwide Ins. Co., 904 A.2d 933, 937 (Pa.Super.Ct.2006). The fact that there might be other owners in addition to Ms. Kebberly does not abrogate the fact that she remains an owner under Pennsylvania law. See id.
The plain language of the exclusion does not require sole ownership. It simply excepts the employee if the automobile “is owned by that ‘employee’ or a member of his or her household.” There is no genuine issue of fact that the Tahoe was “owned” by Ms. Kebberly, even if others had ownership rights to the same vehicle. Thus, Ms. Kebberly does not meet the definition of “Who Is An Insured” and National Grange has no duty to defend or indemnify Ms. Kebberly in the state court action.3
Because this Court concludes that the National Grange policy does not cover Ms. Kebberly with respect to this motor vehicle accident, there is no need to reach Mutual’s alternative argument that both policies provide primary coverage and the insurers are proportionately liable under the “other insurance” clauses in the policies.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
. John T. Kebberly is Ms. Kebberly’s father.
. After the state court action settled, Ms. Keb-berly, Kebberly, Inc., and the Burtons were no longer interested parties in this action. Accordingly, the case was terminated with respect to those defendants.
. Mutual does not argue that subsection (a), which insures ‘'[Kebberly, Inc.] for any covered ‘auto,’ " provides coverage for Ms. Keb-berly's accident. Rather, Mutual argues that Ms. Kebberly was an employee with permission to drive a "covered 'auto' " under subsection (b). See Mutual Br. 15; Mutual Reply Br. 5. Accordingly, this Court need not decide whether Kebberly, Inc. was using the Tahoe within the meaning of subsection (a).
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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/8477406/
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OPINION
JONES, District Judge.
Gary Lee Myers pled guilty to possession of child pornography and was sentenced to 51 months’ imprisonment, to be followed by an 8-year term of supervised release. Myers did not take a direct appeal of his conviction and sentence. After retaining new counsel, Myers filed a motion pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel at sentencing. The District Court denied Myers’ motion, and he now appeals that denial. For the reasons that follow, we affirm.1
I.
In 2008, a Pennsylvania State Trooper assigned to the Bureau of Criminal Investigation, Computer Crime Division, conducted an investigation into the Internet sharing of child pornography. Following that investigation, a search warrant for *770Myers’ home was obtained and executed. Retrieved from Myers’ home was child pornography contained on Myers’ computer, hard drive, and CDs. The material contained graphic images of minors engaged in sexual acts, including minors under the age of 12 and materials depicting the penetration of minors.
In April 2008, Myers was charged in a one-count Indictment with Possession of Material Depicting the Sexual Exploitation of a Minor, in violation of 18 U.S.C. § 2252(a)(4)(B). Myers was represented by Ronald W. Hayward, Esq. at the District Court proceedings, including Myers’ plea and sentencing. On November 14, 2008, Myers pleaded guilty to Count One. No formal plea agreement was entered.
Utilizing the 2008 edition of the Sentencing Guidelines, the probation officer calculated Myers’ offense level to be 28 and his criminal history category (“CHC”) to be level I, yielding an advisory guideline range of 78 to 97 months. After argument by Myers’ attorney at sentencing, the District Court sustained Myers’ objection to the 4-point enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), for possession of material portraying sadistic conduct, masochistic conduct or other depictions of violence, specifically materials depicting the penetration of a minor. Accordingly, Myers’ offense level was set at 24 and his CHC was I, yielding a guideline range of 51 to 63 months. Before passing sentence on March 9, 2009, the District Court reviewed the factors set forth in 18 U.S.C. § 3553(a) as they applied to Myers, stating:
I note that this is the defendant’s first criminal conviction. And I also [ac-Jknowledge his stable upbringing and gainful employment. While commendable, these facts, however, do not reflect the serious and disturbing nature of his offense, nor the large number of sexually explicit images attributable to the defendant. This conduct warrants a significant period of incarceration.
The District Court thereafter sentenced Myers to 51 months incarceration, to be followed by an 8-year term of supervised release. Myers did not appeal.
After sentencing, Myers retained new counsel, Attorney Stanton D. Levenson, and on April 3, 2009 filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Myers argued that he had been denied his Sixth Amendment right to effective assistance of counsel as the result of Attorney Hayward’s failure to argue that the guideline under which he was sentenced, U.S.S.G. § 2G2.4, is seriously flawed and should not be followed. The District Court subsequently denied Myers’ motion, and this appeal followed.
II.
We exercise plenary review over the legal component of ineffective assistance of counsel. See United States v. Smack, 347 F.3d 533, 534 (3d Cir.2003). “The underlying facts are reviewed for clear error, and are subject to independent judgment ‘on whether the facts thus found constitute constitutionally ineffective assistance of counsel.’” United States v. Baird, 218 F.3d 221, 225 (3d Cir.2000) (quoting Gov’t of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir.1996)).
Strickland v. Washington supplies the standard for addressing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
*771466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, the defendant must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
III.
As aforestated, Myers argues that he was denied his Sixth Amendment right to effective assistance of counsel by Attorney Hayward’s failure to argue that the guideline under which he was sentenced, U.S.S.G. § 2G2.4, is seriously flawed and should not be followed. Myers relies on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), for the proposition that courts are permitted to discount various guidelines for lack of empirical support. Myers thus extrapolates that he was denied the effective assistance of counsel based on his counsel’s failure to argue at sentencing that the District Court should reject Section 2G2.4 for lack of empirical support.
Our first step in analyzing Myers’ novel ineffective assistance claim is to determine whether counsel’s failure to make such an argument constituted deficient performance. To undertake this analysis, we must first discuss Kimbrough and its potential import here. In Kimbrough, the Supreme Court found that the guidelines for crack cocaine were not based on the Sentencing Commission’s independent “empirical data and national experience,” but were largely fashioned by Congressional legislation alone. 128 S.Ct. at 575. Based on this reasoning, the Supreme Court held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve 3558(a)’s purposes.” Id. Kimbrough was then clarified by the Supreme Court in Spears v. United States, wherein the Court held “that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” — U.S. —, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009). Thereafter, in United States v. Prophet, 335 Fed.Appx. 250 (2009), we considered Kimbrough’s effect on the child pornography sentencing Guidelines and held that “even if it were true that district courts, based on the reasoning of Kimbrough, may impose below-guideline sentences for child pornography offenses solely based upon policy disagreements with those guidelines, it does not follow that they must do so.” Id. at 252 (emphasis in original). However, Prophet was not a precedential opinion, and to date this Court has not rendered any precedential opinions pertaining to Kimbrough’s, application to the child pornography guidelines.2
Myers is endeavoring to have his counsel’s performance declared ineffective based upon a failure to raise a creative argument that analogizes the child pornography sentencing guidelines with the crack/powder cocaine guidelines. To be sure, Prophet spoke at least in part to the point Myers raises, but as noted, it was a not precedential opinion. Although not specifically articulated by Myers, he essentially seeks to have his counsel declared ineffective for the failure to assert an arguably relevant point contained within a not precedential opinion of this Court. We *772decline to hold counsel to such a standard, which is far beyond what Strickland mandates. Based on the current status of the jurisprudence in this Circuit, we simply cannot find that Myers’ counsel’s performance was deficient based upon his failure to argue that § 2G2.4 should be rejected or discounted for lacking empirical support.
Further, even if we did hold counsel to what we believe is an unreasonable standard, Myers was not prejudiced. First, the District Court sustained Myers’ objection to the 4-point enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), resulting in a significantly lower advisory guideline range. Further, the District Court outlined the § 3553(a) factors in significant detail when passing sentence, noting in particular the seriousness of the offense conduct. The District Court then sentenced Myers at the very bottom end of the guidelines, after concluding that nothing in his background warranted a sentence outside of that range.
In sum, we conclude that Myers has not established that his counsel was ineffective based on the Strickland standard. Accordingly, we affirm the District Court’s denial of his Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 2253(a). This Court exercises plenary review over the legal component of an ineffective-assistance-of-counsel claim, and the underlying facts are reviewed for clear error. United States v. Smack, 347 F.3d 533, 537 (3d Cir.2003).
. Notably, Prophet addresses the guideline in the context of a direct appeal, not an ineffective assistance claim.
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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/8477408/
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OPINION
AMBRO, Circuit Judge.
Donald and Diana Burnsworth brought this civil action in state court, alleging federal constitutional violations and separate state law claims. The defendants removed the case to federal court. This appeal involves claims against Daniel Ekis, a state trooper at the scene of Donald Burnsworth’s accident. The District Court granted Ekis’s motion for summary judgment. We affirm.
I.
Donald Burnsworth1 was a commercial truck driver. In February 2003, he was transporting road de-icing material across Pennsylvania. While on duty, he collided with another vehicle, causing a fatality. After the accident, Burnsworth spoke with his supervisor, who told him that he would need to undergo drug and alcohol testing in accordance with federal regulations. Burnsworth was given the option of either visiting a facility affiliated "with his employ*774er or one suggested by the state police. He stated no preference at the time.
Shortly after the accident, Ekis arrived on the scene. He interviewed a witness and provided traffic control. After completing these tasks, he spoke with the investigating trooper on the scene, one of his superiors. Although Ekis understood his general responsibilities as a state trooper at the scene of an accident, he lacked relevant knowledge about commercial vehicle laws and regulations — ’including those imposed by the federal government. The investigating trooper told Ekis that Burns-worth would have “to be tested due to the commercial motor vehicle law.” As a result, Elds transported Burnsworth to Greene County Memorial Hospital to collect blood and urine samples.
While at the hospital, a phlebotomist completed the Federal Drug Testing and Custody Control Form. The Control Form indicated that Burnsworth’s blood and urine samples were to be released to Ekis. Once the samples were collected, Ekis called his barracks, seeking further instructions. He was directed by one of his superiors to bring the samples back to the barracks and place them into evidence. He complied.
In the end, a different state trooper delivered Burnsworth’s samples to Pc Laboratory, along with the Control Form and a letter from the Pennsylvania State Police (requesting drug and alcohol testing). Unfortunately, Pc Lab was not certified by the National Institute of Drug Abuse (“NIDA”), as required by federal regulations. Relevant to this appeal, NIDA-cer-tified facilities are required to preserve blood and urine samples so that follow-up testing can be performed, if necessary.
Burnsworth tested positive for marijuana. Nevertheless, he was told by the police that no charges would be filed against him, since they had determined that he was not the cause of the accident. Burns-worth was later informed by Pc Lab that his blood and urine samples had been discarded. As a result, he was unable to perform any follow-up tests.
After testing positive for marijuana, Burnsworth lost his job as a commercial truck driver; however, he did not lose his commercial driver’s license. Furthermore, Burnsworth did not apply for another job as a truck driver. Instead, he was hired as a laborer, earning more than he had in his previous job.
Burnsworth nonetheless brought a § 1983 suit, alleging that Ekis violated his procedural due process rights by failing to follow federal regulations when conducting his drug screening. After the suit was removed from state court, the District Court granted Ekis’s motion for summary judgment and remanded to state court Burnsworth’s remaining state law claims.
For the following reasons, we affirm.
II.
The District Court had jurisdiction over this action under 28 U.S.C. § 1331 and § 1343. We have jurisdiction under 28 U.S.C. § 1291.
“We exercise plenary review over the District Court’s decision to grant summary judgment.” Hedges v. Musco, 204 F.3d 109, 115 (3d Cir.2000). “Summary judgment is appropriate only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.” Id. However, the District Court’s decision to decline to exercise supplemental jurisdiction is reviewed for abuse of discretion. Id. at 122-24.
II.
“Every person who, under color of [state law] subjects, or causes to be subjected any ... person within the jurisdic*775tion [of the United States] to the deprivation of any rights ... secured by the Constitution ... shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. “It is axiomatic that ‘[a] § 1983 action ... employs the principle of proximate causation.’” Hedges, 204 F.3d at 121 (quoting Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.1999)). To establish proximate causation, “a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the [defendant’s actions] and the specific deprivation of constitutional rights at issue.” Id. (internal quotation marks omitted). “[M]ere negligence is insufficient to trigger constitutional liability.” Fagan v. City of Vineland, 22 F.3d 1296, 1305 (3d Cir.1994) (en banc). However, “the judicial conscience is shocked by a governmental employee’s reckless disregard of the constitutional rights of an individual.... ” Id. at 1306. At the same time, a governmental defendant “must have personal involvement in the alleged wrongdoing.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005) (internal quotation marks omitted).
Burnsworth argues that Ekis had an obligation to follow federal regulations relating to drug testing and that he violated Burnsworth’s civil rights by failing to follow them. See 49 C.F.R. §§ 40.1 et seq. Under Burnsworth’s theory, Ekis’s alleged misconduct began a chain of events that caused Burnsworth’s blood and urine samples to be sent to a non-NIDA-certified facility. Because of this, those samples were discarded before he could retest them, which prevented him from challenging the initial test results (and possibly saving his job).
In rejecting Burnsworth’s claim against Ekis, the District Court applied a “setting in motion” theory of proximate causation — a plaintiff-friendly test that we have not yet adopted in the § 1983 context. The District Court was persuaded by the. reasoning in a recent case, McCleester v. Mackel, No. 06-120J, 2008 WL 821531, at *12 (W.D.Pa. Mar.27, 2008), where the court held that a defendant could be subjected to liability in a § 1983 action for “setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.” Id. (internal quotation marks omitted). This theory has been accepted by other Circuit Courts of Appeals. See, e.g., Morris v. Dearborne, 181 F.3d 657, 672 (5th Cir.1999); Sales v. Grant, 158 F.3d 768, 776 (4th Cir.1998); Waddell v. Forney, 108 F.3d 889, 894 (8th Cir.1997); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560-61 (1st Cir.1989); Conner v. Reinhard, 847 F.2d 384, 396-97 (7th Cir.1988); Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir.1981). In the end, we conclude that Burnsworth’s § 1983 claim fails even under this less rigorous theory of proximate causation. Therefore, this appeal is not the appropriate context for considering whether to adopt this theory in § 1983 actions.
Were this theory in play, Burnsworth argues that Ekis’s actions “set in motion” the events that caused Burnsworth to be deprived of his constitutional rights. We disagree.
Concededly, Ekis’s conduct in this case was less than ideal. Although he helped secure the scene of the accident, he was unaware of how to proceed from there under relevant regulations. Sensibly, he followed the guidance of the investigating trooper on the scene. Following his superior’s directions, Ekis transported Burns-worth to the hospital and secured the necessary blood and urine samples. Once again, when Ekis was unsure of how to proceed, he called his superiors for guidance. Following their orders, Ekis placed Burnsworth’s blood and urine samples into *776evidence. This ended Ekis’s involvement in the matter.
In the end, it was a different state trooper who ultimately delivered Burns-worth’s samples to Pc Lab. There is no evidence from which a reasonable jury could conclude that Ekis knew or reasonably should have known that others would unconstitutionally deprive Burnsworth of his rights as a result of his actions. Ekis did not deliver the samples to Pc Lab himself, nor did he direct anyone else to do so. In placing the samples into evidence, he was simply following the instructions of his superiors. This is not enough to satisfy causation in the § 1983 context — even under a “setting in motion” theory. Therefore, we affirm the District Court’s entry of summary judgment in favor of Ekis.
Finally, Burnsworth also challenges the District Court’s decision to decline to exercise supplemental jurisdiction over his remaining state law claims. The District Court “may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “This Court has recognized that, ‘where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendant state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.’ ” Hedges, 204 F.3d at 123 (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995)) (emphasis in original). Since in this case the Court dismissed all of the federal claims over which it had jurisdiction prior to trial, we conclude that its decision to decline to exercise supplemental jurisdiction over the remaining state law claims was not an abuse of discretion.
;¡c i¡t íjc :¡í
For the foregoing reasons, we affirm the judgment of the District Court.
. We refer to Donald Burnsworth as "Bunis-worth” for the remainder of the opinion.
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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/8477410/
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OPINION
PER CURIAM.
Appellant Gwendolyn Jackson appeals her conviction and sentence for harassment. For the reasons stated below, we affirm.1
I.
In 2004, Jackson, at the time serving as a judge advocate in the New Jersey Army National Guard, received a negative evaluation from a superior officer, Lieutenant Colonel Mark Winkler. In November 2006, she asked Winkler to retract the evaluation, but he denied the request.
In the morning of December 2, 2006, Winkler received a call in his office area at Fort Dix from Jackson’s cellular telephone number. The caller refused to give a name, but stated, ‘You know who this is. You gave me ... a shitty OER.”2 Throughout the day, until late afternoon, 47 more calls were made to Winkler’s office from Jackson’s number. Two other judge advocates on duty at the time became involved: Winkler enlisted Robert Stevens to answer most of the calls using speakerphone, and Mark Tarantino overheard many of them. Most of the calls consisted of loud recorded music or sirens, silence, and hang-ups. On some calls the caller (using a muffled voice) made statements such as “where’s the snake,” “put Winkler on the phone,” and “put his ass on the phone.” During a late morning call, the caller stated, “Tell him to come out for lunch. We’ll see him at lunch.”
Jackson was charged with the petty disorderly persons offense of harassment, in violation of N.J. Stat. Ann. § 2C:33-4a,3 as assimilated into federal law by 18 U.S.C. § 13. Before trial, her motion for a change of venue and to disqualify the Special Assistant U.S. Attorney were denied. During a two-day bench trial conducted before a Magistrate Judge, Winkler and Tarantino testified that they could recognize Jackson’s voice as the voice on the calls. Stevens, however, could not identify her voice based on, he testified, his few prior encounters with her. Winkler had recorded some of the calls with a handheld tape recorder; this tape was played at trial.
Winkler testified that, when the calls began, he was not overly concerned. However, as they continued, he became worried for his family’s safety, especially because he believed Jackson lived near his *779home. He called his wife around noon, warning her to look out for Jackson and asking her to inform their son of the situation. Around the same time, he called the police.
Jackson was found guilty and sentenced to two years’ probation and a $500 fine. She appealed her conviction and sentence to the District Court, who affirmed on all grounds relevant to this appeal. Jackson timely appealed to our Court.
II.
Jackson first challenges the sufficiency of the evidence, and the Magistrate Judge’s denial of a new trial on that ground. We review the sufficiency of the Government’s evidence to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (internal quotation marks and citations omitted). “It is not for us to weigh the evidence or to determine the credibility of the witnesses.” Id. (internal quotation marks and citation omitted). We review the denial of a motion for a new trial pursuant to Rule 33 for abuse of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir.2002). Such motions should be “granted sparingly and only in exceptional cases.” Gov’t of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.1987).
Jackson argues that the identification of her voice by Tarantino and Winkler was suspect because they had not been in communication with her recently, the audio quality was poor, and the speaker was muffling his or her voice. She also argues that a statement by James Sattley, a judge advocate in her unit, creates reasonable doubt as to whether she made the calls. Sattley placed Jackson at Fort Dix the afternoon of the calls, while the telephone records show that calls from her cell phone number that afternoon were routed through servers.in the New York metropolitan area. She further argues that the Magistrate Judge accorded too little weight to the testimony of Investigator Matthew Bloomberg, who at trial relayed Jackson’s statement to him that Jackson’s family often switched the Subscriber Identity Module (“SIM”) cards (which store the subscriber’s identification data, including the phone number) in their cell phones. Jackson argues that Bloomberg’s testimony creates a reasonable doubt as to whether it was Jackson (or instead, we presume, one of her family members) who placed the calls.
Despite Jackson’s objections, the evidence appears more than sufficient to support her conviction. There is no dispute that the phone calls were placed from Jackson’s cell phone number, and two witnesses testified that they recognized Jackson’s voice on the calls, despite her attempts to disguise it. A month before the calls, Jackson had requested that Winkler retract his negative evaluation of her, and the caller stated to Winkler that he had given her “a shitty OER.” As to the phone calls routed through the New York metropolitan area, this evidence does not show that these calls were actually placed from that area, but only that they were routed through those servers. There was no evidence at trial that, on the day of the calls, Jackson in fact had swapped SIM cards with any family member. Based on this record, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, the Magistrate Judge did not abuse his discretion in denying Jackson’s motion for a new trial.
III.
Jackson challenges the sufficiency of the evidence on another ground. Under N.J. Stat. Ann. § 2C:33-4a, the following elements must be shown:
*780(1) defendant made or caused to be made a communication; (2) defendant’s purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.
State v. Hoffman, 149 N.J. 564, 695 A.2d 236, 242 (1997). Jackson argues that her conduct did not satisfy the requirement that the communication was made in a manner “likely to cause annoyance or alarm.” She emphasizes that 1) only one or two of the calls were answered by Winkler himself, and 2) he was not alarmed by the first calls but only became concerned as the calls continued.
However, Winkler was alarmed enough to call his wife and the police. See State v. Reyes, 172 N.J. 154, 796 A.2d 879, 885 (2002) (concluding that communications were “likely to cause annoyance or alarm” when they led to the “summoning of the police” and a temporary restraining order). Moreover, as the District Court recognized, the nature, content, and sheer number of the calls, all directed at Winkler, constituted sufficient evidence to support the conviction.
IV.
Jackson next challenges the Magistrate Judge’s denial of her motion for a change of venue and for disqualification of the prosecutor. Neither argument is persuasive.
Motions for change of venue in federal court are governed by Federal Rule of Criminal Procedure 21(a), which provides:
The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendant’s motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.
Fed.R.Crim.P. 21(a). Jackson did not allege, let alone show, that there existed in the District of New Jersey “so great a prejudice” against her that she could not “obtain a fair and impartial trial.” Id. Therefore, a transfer of venue would have been inappropriate.4
Jackson’s motion to disqualify the prosecutor similarly fails. She bases her argument on the “risk of undue influence by the victim, the quasi-military/quasi-eivilian nature of the prosecution, and the appearance of impropriety and bias.” But the evidence shows that the prosecutor was not connected to Jackson, the witnesses, or Winkler, was not part of the same military organization as Winkler, and was not subject to Winkler’s command. We agree with the Magistrate Judge that there was “no evidence of any influence through the chain of command,” and we know of no evidence supporting the allegation that the prosecutor was biased or influenced by Winkler.5
*781V.
Finally, Jackson challenges her sentence of two years’ probation, including the requirement that she participate in a mental health treatment program, as substantively unreasonable. The Government has moved for dismissal of this issue because Jackson’s period of probation was revoked and terminated after the filing of this appeal when Jackson violated the terms of her probation.6 See United States v. Jackson, 523 F.3d 234, 241 (3d Cir.2008) (“A defendant who is no longer serving a term of imprisonment, parole, probation, or supervised release and challenges only his sentence will have his appeal dismissed for lack of jurisdiction unless he can somehow show sufficient collateral consequences....”). Jackson filed no response, and thus has not alleged any collateral consequences. As the mental health condition was a requirement of the terminated sentence of probation, her appeal as to that condition is also moot. Therefore, we grant the Government’s motion.7
For the reasons stated above, we affirm Jackson’s conviction, and dismiss the appeal of her sentence.
. The Magistrate Judge had jurisdiction under 18 U.S.C. § 3401 and 28 U.S.C. § 636. The District Court had appellate jurisdiction under 18 U.S.C. §§ 3402 and 3742(h). We have jurisdiction to review the District Court's order affirming the Magistrate Court’s judgment pursuant to 28 U.S.C. § 1291.
. An "OER” is an “Officer Efficiency Report,” a form used to evaluate personnel.
.Under N.J. Stat. Ann. § 2C:33-4a, it is a petty disorderly persons offense if any person, “with purpose to harass another, ... [mjakes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.” Id.
. To the extent Jackson sought, through her motion to transfer venue, to allege on the part of the Magistrate Judge any personal bias, prejudice, or knowledge of those involved in the case, we see nothing in the record to support those allegations.
. Jackson surmises that the Government did not consider her for a diversionary program or a continuance in anticipation of dismissal because Winkler improperly influenced the prosecutor. Not only is there no evidence this occurred, these decisions are entrusted to the discretion of the United States Attorney, and a defendant has no right to be placed in pretrial diversion.
. The merits of the parole revocation are not before us in this appeal.
. We note that even if we reached the merits of Jackson's appeal of her sentence, we would affirm. Jackson contends her sentence of two years' probation was substantively unreasonable in light of her military record, her lack of criminal history or history of similar behavior, the sufficiency of a no-contact order to protect Winkler, and the nature of the offense. However, under the totality of the circumstances, Jackson’s sentence "falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008). As to the mental health treatment requirement, the Magistrate Judge stated that he was concerned "as to what, if anything is pr[e]ying on the mind of this Defendant which led to this behavior, real or imagined,” and that he wished to ensure Jackson received the appropriate medical care. The requirement appears to result from a genuine concern for Jackson's welfare and long-term health.
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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/8477412/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Michael King appeals from a judgment entered by the United States District Court for the District of Delaware convicting him of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). King’s attorney filed a brief as permitted by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no non-frivolous issues to appeal and seeking leave to withdraw from representing King. In response, King submitted a pro se brief in which he argues that the District Court erred in denying his motion to suppress. For the following reasons, we will grant counsel’s request to withdraw and affirm the judgment of conviction and sentence.
I. Background
A. Factual Background
At approximately 11:00 p.m. on February 12, 2008, Officers Matthew Kucharski and David Hamrick, and several other officers from the Wilmington Police Department, responded to a 911 call at the Bethel Villa Apartments in Wilmington, Delaware. The 911 caller was a woman residing at Bethel Villa who reported that a man with a gun had threatened to kill her. Upon arrival, Kucharski and Hamrick met the victim and heard her description of what had occurred. According to the victim, she had arrived home and found King sitting on the steps in the hallway of her apartment building smoking marijuana. A verbal altercation ensued, during which King told the victim, “mind your own business before I kill you.” (App. at A43.) After the victim went inside her apartment, King knocked on her apartment door, and she opened it slightly, leaving the chain-lock secured. King then pointed a silver gun toward her and said, “you’re going to die.” (App. at A44.) As she was closing the door, the victim heard King running upstairs and she looked out the door again in time to see him run into Apartment Cl, on the third floor.
Kucharski and Hamrick next proceeded to Apartment Cl, with the victim following close behind. Kucharski knocked on the apartment door, which was opened by Res-sa Cottingham, King’s girlfriend. Cotting-ham allowed them to enter the apartment to discuss the incident and confirmed to the officers that she lived in the apartment and her name was on the lease. Once inside, the officers noticed that there were children in the apartment, but they did not immediately observe any other adults.1 Cottingham informed the officers that *783King was also in the apartment. After the officers asked to speak with him, Cotting-ham yelled down the hallway for King, who came out of a bedroom. As King came out, the victim, who was able to see into the apartment from the outside hallway through the open door, identified King as the man who had threatened her.
Kueharski then patted down King and felt what he believed to be a bag of illegal drugs in his front right jacket pocket. Kueharski asked King what the object was, and King responded, “I don’t know, check.” (App. at A51.) Kueharski retrieved the bag from King’s pocket and found it contained marijuana. He then placed King under arrest and took him to the patrol car. According to the officers, as King left the apartment, he told Cot-tingham not to let the officers search the apartment without a warrant.
While Kueharski remained with King outside the apartment, Hamrick spoke to Cottingham about the incident and obtained Cottingham’s consent to search the apartment. Prior to receiving such consent, Hamrick reviewed a Wilmington Department of Police Consent to Search form with Cottingham and read the entire document to her. Cottingham signed the form, which acknowledges that Cottingham had the right to refuse the police to search her property, that she in fact waived this right of refusal, and that her written permission to search the property was given without threat, promises, or inducements of any kind. After obtaining Cottingham’s written consent, Hamrick proceeded to search the bedroom where King had been when the officers arrived at the apartment. While searching in the closet, Hamrick found a silver revolver, which the victim identified as the gun that King had brandished when he threatened to kill her.
After King’s arrest, Officer David Rosenblum took his statement. King said that he was living in the apartment with Cottingham and her child, but he also mentioned that he lived at another address. Rosenblum also interviewed Cot-tingham, who asserted that King did not live in the apartment and only stayed there occasionally.
B. Procedural Background
On March 4, 2008, a grand jury sitting in the District of Delaware returned a one-count indictment against King, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). King filed a motion to suppress evidence and statements, arguing that law enforcement officials had conducted a warrantless search in violation of the Fourth Amendment. At the suppression hearing that ensued, the focus was on whether King had standing to raise a Fourth Amendment challenge to the search of Cottingham’s apartment, as either a co-resident at the apartment or an overnight guest.
During the hearing, Nicholas Riley, a friend of King’s for the last five years, testified that King had a six-month-old baby with Cottingham and had been living with her in the apartment for approximately one year. When asked how he knew King lived with Cottingham, Riley stated, “I usually pick him up. I see him hanging out and visiting with her. I would go over and call.” (App. at A106.) In addition, Riley testified that King had keys to the apartment and kept his clothes and car at the apartment.
Riley also testified that he was sitting on the couch in Cottingham’s apartment when the officers entered and witnessed the events immediately before the arrest.2 He *784testified that Cottingham initially refused to give the officers permission to search the apartment and only consented to the search after they threatened to call Social Services and have her children taken from her. In addition, Riley claimed that the door to apartment Cl was closed while the officers were inside Cottingham’s apartment and that the victim was not present to identify King when he exited the bedroom. Thus, Riley testified that the identification did not occur as the officers claimed it did.
Sean Williams, an investigator for the Federal Public Defender’s Office, testified that he interviewed Cottingham, who informed him that she was being evicted from her apartment because of allegations that King lived with her. However, Cot-tingham never told Williams that the allegations were true (ie., that King was in fact living there.) Cottingham did not appear at the suppression hearing because the lawyer representing her in eviction proceedings instructed her not to speak about the incident.
The District Court denied King’s motion to suppress, concluding that King had not established a reasonable expectation of privacy in Cottingham’s residence as either a coresident or as an overnight guest. The Court found Riley’s testimony to be unworthy of belief. Instead, the Court credited the testimony of Officers Kucharski and Hamrick. Specifically, the Court stated:
Mr. Riley testified that he was with Mr. King throughout the day, but he was not with him when he ran from downstairs to Ms. Cottingham’s apartment upstairs. However, Mr. Riley testified that he was present when the Officers entered Ms. Cottingham’s apartment. Mr. Riley’s version of the events that transpired after the marijuana was found in Mr. King’s pocket differs from the testimony of the Officers, and the Court credits the testimony of Officers Kucharski and Hamrick. For example, Mr. Riley testified that there was a twenty minute gap between the time the Officers found the marijuana and the time they took Mr. King out of the apartment. During this twenty minute gap, Mr. Riley testified that the Officers were threatening Ms. Cottingham saying that they would take her kids away from her, and yet, Mr. King “was standing, just standing there looking’ ... This testimony is not only inconsistent with the Officer’s testimony, but it is also inconsistent with the position advanced by Mr. King in his Motion, i.e., that Mr. King was expressing his lack of consent to the search by telling Ms. Cottingham not to provide the Officers with consent to search the premises.
(App. at A17-18.) The Court also stated that Riley’s use of the words “hanging around” and “visiting” are inconsistent with the premise that King lived at the apartment. According to the Court, “a resident would not merely be ‘hanging out’ and ‘visiting’ with Ms. Cottingham, he would be living with her in the apartment on a consistent and regular basis.” (App. at A18.) The Court also found that Riley’s testimony was contradicted by Cotting-ham’s lease, which prohibited King’s full or part-time residence at the apartment, and by Detective Rosenblum’s testimony regarding his interview with Cottingham. Thus, the Court concluded that King had failed to adduce sufficient evidence to establish that he was a co-resident of the apartment at the time of the search.
The Court also concluded that King’s occasional presence at the apartment was insufficient evidence to establish that he was an overnight guest at the time in question. Further, aside from Riley’s tes*785timony, which the Court rejected, there was no evidence that King had clothes, belongings, or any overnight bags in the apartment.
On October 9, 2008, King pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), reserving the right to appeal the District Court’s suppression ruling. On January 16, 2009, the Court sentenced King to 78 months of imprisonment and three years of supervised release. King has timely appealed.
II. Discussion3
Under Anders v. California, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). “That request must ... be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. In United States v. Youla, we summarized the requirements for counsel’s withdrawal and our review of the record as follows:
The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders.
241 F.3d 296, 300-01 (3d Cir.2001) (citations omitted). An appeal is frivolous where “none of the legal points are arguable on the merits.” Id. at 301 (citations omitted).
In this case, the only potential issues mentioned in King’s counsel’s brief relate to the motion to suppress and the reasonableness of King’s sentence. After describing those issues, counsel acknowledged that there was no sound basis for advancing them on appeal. King apparently concedes that there are no non-frivolous arguments regarding the reasonableness of his sentence, as the only argument raised in his pro se brief pertains to the motion to suppress.4
Turning to the argument raised by King in his pro se brief, “[w]e review [a] district court’s denial of [a] motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (citations omitted).
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. Amend. IV. Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause, unless it falls within an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If voluntary consent is obtained from the individual whose property is to be searched or a third party with common authority or joint control over the premises, the government may search the premises without a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, *786222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In his motion to suppress, King argued that the evidence obtained by the government should be suppressed because the government did not obtain valid consent to search the apartment where King’s gun was found.5 In order to maintain such a challenge, King must show that his own constitutional rights have been violated by the search in question, ie., that he has standing. United States v. Padilla, 508 U.S. 77, 81-82, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993).
To establish standing, the party contesting the legality of the search bears the threshold burden of establishing that he or she had a reasonable expectation of privacy in the property searched and the item seized. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). At issue here is whether King has standing to challenge the search of Cottingham’s apartment by virtue of being a coresident or an overnight guest.6 King does not take issue with the District Court’s application of law, but argues that the Court erred in its factual determinations that he was not a co-resident or overnight guest. Essentially, he argues that the Court erred by rejecting the testimony of Riley and accepting the testimony and statements of Kucharski, Hamrick, Rosenblum, and King’s own girlfriend, Cottingham. However, “assessments of credibility by the trial court are entitled to great deference at the appellate level.” Givan, 320 F.3d at 452 (quoting United States v. Brothers, 75 F.3d 845, 853 (3d Cir.1996)).
Further, the record reveals that the District Court’s factual findings are not clearly erroneous. The evidence supporting King’s position that he was a co-resident or overnight guest was limited and rebutted. Not only was Riley’s testimony inconsistent with that offered by the officers, it was also inconsistent with the arguments advanced by King at the suppression hearing and with statements made by Cotting-ham. For example, while Riley claimed that King lived at the apartment, Cotting-ham, who undisputably lived at the apartment, told officers that King did not live there. The Court was fully justified in accepting the testimony it chose to accept and in concluding that King was not a coresident or overnight guest. Having made that determination, the Court properly concluded that King lacked standing to challenge the search of Cottingham’s apartment.
We also conclude that counsel’s brief adequately demonstrates a thorough examination of the record in search of ap-pealable issues and an adequate explanation of why the issues are frivolous. Thus, counsel for King has satisfied the Anders requirements and we will grant the motion to withdraw.
III. Conclusion
For the foregoing reasons, will grant counsel’s request to withdraw representation and affirm the judgment of the District Court.
. In contrast, Nicholas Riley, a friend of King, testified that he was in Cottingham's apartment sitting on the couch when the officers entered.
. It is unclear whether Riley was in fact present when the officers entered Cottingham's apartment. Kueharski seems to recall Riley, or at least some adult male other than King, *784being present. However, Hamrick does not recall seeing Riley in the apartment.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. After reviewing the record, we also find that any argument with respect to the sentence would be frivolous. The District Court properly calculated King's Guideline range, meaningfully considered the Sentencing Guidelines and § 3553(a) factors, and provided detailed reasons for its imposition of a sentence at the top of the advisory Guidelines range.
. King did not dispute that Cottingham had the authority to permit the search. Rather, he argued that Cottingham's consent was not given freely and voluntarily, because it was only after the officers threatened to call Social Services and have her children taken from her that Cottingham consented to the search of her residence.
. A co-resident of a shared dwelling and an overnight guest of a dwelling are typically held to have a reasonable expectation of privacy in that dwelling. See e.g., Olson, 495 U.S. at 97, 110 S.Ct. 1684; United States v. Villegas, 495 F.3d 761, 772 (7th Cir.2007).
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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/8477414/
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Relator Robert Pritzker appeals the District Court’s dismissal of this qui tam action against defendants Sodexho, Inc., Sodexho America, LLC, Sodexho Marriott Management, Inc., and Sodexho Management, Inc. (“Sodexho”); ARAMARK Corporation and Aramark Educational Services, Inc. (“ARAMARK”); and Compass Group USA, Inc., doing business as Chart-wells (“Chartwells”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Pritzker filed this qui tam action by filing a complaint, pro se, under seal in the District Court for the Eastern District of Pennsylvania on October 30, 2003. He filed an amended complaint, represented by counsel, on August 1, 2007. Pritzker alleges that the defendants caused the submission of false claims in connection with the National School Lunch Program and the School Breakfast Program, in violation of 31 U.S.C. §§ 3729(a)(1) and 3729(a)(2). These federal school programs are administered by the Food and Nutrition Service (“FNS”) of the United States Department of Agriculture (“USDA”). FNS provides grants to the relevant State Agencies (“SAs”), who in turn distribute these funds to the School Food Authorities (“SFAs”) responsible for administering the federal school food programs in individual school districts. Many SFAs operate their own school food programs, but some SFAs contract with food service management companies (“FSMCs”) such as the defendants to manage and operate the lunch and breakfast programs in their school districts.
Pritzker alleges that the defendants caused SFAs and SAs to certify falsely compliance with the regulations governing the National School Lunch Program and the School Breakfast Program, in two different ways. First, Pritzker alleges that the defendants retained rebates and credits they received from their suppliers, in violation of regulations requiring that costs reimbursed in cost-reimbursable contracts be net of any rebates or credits (the “rebate claims”). Second, Pritzker alleges that the defendants purchased food and supplies from higher cost national distributors who offered to pay rebates and credits rather than from lower cost regional distributors, in violation of procurement regulations requiring free and open competition (the “procurement claims”).
Before Pritzker filed his complaint, several government agencies had investigated the issues underlying the rebate claims. In 1996, the General Accounting Office published a report on the “Role and Impacts of Private Food Service Companies.” Joint Appendix (“J.A.”) 125-190 (“1996 GAO Report”). The 1996 GAO Report observed “[flood service contracts vary in their treatment of rebates and discounts received by the food service company when it purchases food for the food authorities.” J.A. 132. Of the contracts reviewed for the report, 40 percent did not address rebates or discounts, 37 percent required the FSMCs to pass through rebates and discounts, and 18 percent permitted FSMCs to retain rebates and discounts. J.A. 163.
Beginning in 2001, the USDA’s Office of Inspector General (“OIG”) conducted a series of audits examining various issues regarding the federal school food programs, including the retention of rebates by FSMCs. This investigation culminated in an audit report published April 30, 2002 (the “April 2002 Audit Report”). J.A. 329-*789370. The objective of this report was “to determine whether sufficient controls existed to ensure that management companies complied with program requirements in crediting [SFAs] for the value of USDA-donated commodities and purchase discounts and rebates.” J.A. 331. The report disclosed that:
Two management companies that maintained cost-reimbursable contracts nationwide profited at the expense of 7 of the 19 [SFAs] we reviewed by retaining over $280,000 in discounts and rebates they received on purchases made for their food service operations. To accomplish this, the management companies amended, eliminated, or ignored terms in the requests for proposal issued by the [SFAs], Contrary to FNS regulations, the management companies were able to include contract terms that favored them, because FNS did not mandate specific contract terms and provisions.
These 2 management companies contracted with over 18 percent of the 1,648 SFA’s that had management contracts nationwide.
J.A. 332; see also J.A. 340. The results of this April 2002 Audit Report were also highlighted in a newspaper article, J.A. 363, and congressional testimony, J.A. 432.
In response to these OIG audits, FNS promulgated new regulations explicitly requiring SFAs to include contract terms prohibiting FSMC retention of rebates and other credits. See Procurement Requirements for the National School Lunch, School Breakfast and Special Milk Programs, 69 Fed.Reg. 78340 (Dec. 30, 2004). The proposed rules were issued in 2004, and the regulations became effective in 2007.
The District Court entered a final order dismissing the complaint on March 6, 2009, 2009 WL 579380. The District Court dismissed the rebate claims for lack of subject matter jurisdiction, holding that the False Claim’s Act jurisdictional bar, 31 U.S.C. § 3730(e)(4), precluded it from exercising jurisdiction.1 The court concluded that “critical elements of the Relator’s allegations, indeed, the fraud itself, were public long before Relator filed suit.” J.A. 16. The “meat and potatoes of the fraud — retention of rebates despite regulations requiring those rebates to be passed through to the SFAs — was revealed” in the April 2002 Audit Report, and Pritzker “merely molds this publicly disclosed regulatory violation into a false certification theory....” Id. The court also held that Pritzker was not an original source of the information underlying the rebate claims. The court dismissed the procurement claims for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6), holding that although the procurement regulations required SFAs to engage in competitive bidding when contracting with FSMCs, these regulations did not require competitive bidding in the FSMCs’ subsequent procurement of food and supplies.
Pritzker timely appealed.
II.
The District Court had jurisdiction, if at all, pursuant to 31 U.S.C. §§ 3730(b)(1) and 3732(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s dismissal of the rebate claims based on the statute’s jurisdictional bar, see, e.g., United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 737 (3d Cir.1997) (citation omitted), and over the District Court’s *790dismissal of the procurement claims for failure to state a claim, see, e.g., Umland v. Planco Financial Services, Inc., 542 F.3d 59, 63-64 (3d Cir.2008).
III.
Pritzker’s first argument on appeal is that the District Court erred by dismissing the rebate claims as barred by § 3730(e)(4). The False Claims Act bars qui tam suits where the fraud has been publicly disclosed in certain enumerated sources prior to the commencement of the suit, unless the relator was the original source of the information.2 31 U.S.C. § 3730(e)(4). Section 3730(e)(4) provides:
(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or [GAO] report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
(B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.
Id.
We hold that the District Court properly dismissed the rebate claims because the court lacked jurisdiction over these claims pursuant to § 3730(e)(4). We hereby adopt the careful and detailed analysis employed by Judge Schiller on this issue.3
IV.
Pritzker’s second argument is that the District Court erred by dismissing the procurement claims for failure to state a claim. The “full and open competition” regulations apply only to grantees and subgrantees of federal funds, in this case SAs and SFAs. See 7 C.F.R. §§ 3016.36(a) (requiring that grantees and subgrantees follow the listed procurement standards), 3016.36(c)(1) (requiring “full and open competition” in all “procurement transactions”). Pritzker acknowledges that FSMCs are not directly covered by these regulations but argues that since the defendants procured food and supplies on behalf of SFAs, the defendants’ failure to employ competitive bidding caused the SFAs to falsely certify compliance with the regulations. Pritzker cannot, however, identify any regulation requiring competitive bidding on the part of FSMCs. As the National School Lunch Program regulations make clear, an SFA is required to “[a]dhere to the procurement standards ... when contracting with the food service management company.” 7 C.F.R. § 210.16(a)(1) (emphasis added). The SFAs, as subgrantees, are required to conduct competitive bidding when selecting an FSMC, see 7 C.F.R. § 3016.36(c)(1), but Pritzker cannot identify any authority suggesting that these procurement regulations reach any deeper into the supply chain. We agree with the District Court that Pritzker has failed to state a claim with respect to the procurement claims.
*791V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. As an alternative basis for dismissing the rebate claims, the District Court also concluded that Pritzker had failed to allege a false claim, because the regulations did not clearly prohibit the defendants' conduct until they were revised in 2007.
. Counsel for Pritzker conceded during oral argument that Pritzker was not an "original source” for purposes of § 3730(e)(4).
. The District Court also concluded that, even if the rebate claims were not jurisdictionally barred, Pritzker failed to state a claim because he could establish that the claims submitted by SAs and SFAs were false or fraudulent. Because we conclude that the rebate claims are barred by § 3730(e)(4), we do not reach this issue.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Hunt, Jr., appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hunt v. Sandhir, No. 3:06-cv-00539-RLW (E.D.Va. June 30, 2009). We deny Hunt’s motions for appointment of counsel and summary disposition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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JUDGMENT
PER CURIAM.
This petition for review of an order of the Surface Transportation Board was considered on the bi'iefs and the appendix filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the petition for review be denied.
Riffin challenges the Board’s denial of his motion to compel a railroad abandoning a certain stretch of track to issue a deed to him personally although the railroad had already issued the deed to WMS, LLC, a Maryland limited liability corporation he controlled. Any differences between the deed and what is called for by the purchase and sale agreement, which indicated the railroad was to be transferred to WMS, Inc., a West Virginia limited liability corporation, are irrelevant to our analysis because the STB has only a limited role in facilitating the transaction.
As the Board explained in the order under review, if an offeror and an offeree railroad have agreed upon the terms of a transaction in an abandonment proceeding, as they did here, then the Board’s role is only to determine the financial responsibility of the offeror. See 49 U.S.C. § 10904(d)(2)(A) (abandonment proceed*651ings postponed until “the carrier and a financially responsible person have reached agreement on a transaction for subsidy or sale of the line”); 49 C.F.R. § 1152.27(f)(2) (“[i]f the carrier and a person offering to purchase a line enter into a purchase agreement which will result in continued rail service, the Board will approve the transaction and dismiss the application for abandonment”); cf. 49 U.S.C. § 10904(f)(1)(B) (permitting the STB to set terms for the transaction if the parties cannot agree); 49 C.F.R. § 1152.27(h)(6) (same). That the Board did.
Therefore, the Board’s involvement in this transaction ended before the railroad issued the deed to WMS, LLC. regardless whether the railroad later fulfilled its contractual obligation to the offeror. Riffin cites no relevant authority for the proposition that the STB may compel an abandoning railroad to issue a new deed or otherwise resolve a contract dispute between the railroad and the acquiring offeror.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs filed by the parties, and on appellant’s transcript of prepared supplemental points for oral argument contained in his motion for reconsideration filed January 21, 2010. See D.C.CiR. Rule 34(j). The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cm. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
To satisfy “the irreducible constitutional minimum of standing,” a plaintiff must show an injury in fact that is fairly traceable to the challenged conduct of the defendant and that is likely to be redressed by a decision in the plaintiffs favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury must be “(a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Id. (internal quotation marks and citations omitted). The plaintiff fails to meet that burden here. He challenges the winner-take-all systems by which Arkansas, Georgia, Louisiana, Tennessee, and Texas award Electoral College votes, arguing that those states have unconstitutionally disenfranchised voters who support the losing candidates. The plaintiff contends that the states should be penalized under Section 2 of the Fourteenth Amendment, which provides, in relevant part, that where “the right to vote at any election for the choice of electors for President and Vice President of the United States ... is denied” to any male citizen over the age of 21, or “in any way abridged, except for participation in rebellion, or other crime,” the basis of the offending state’s representation “shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.” U.S. Const, amend. XIV, § 2. The plaintiff is not injured by the operation of the five states’ winner-take-all systems because he does not vote in those states. Nor has he alleged that the failure to redistribute electoral votes pursuant to Section 2 has caused him any “concrete and particularized” injury.
The plaintiffs complaint indicated that he was filing his lawsuit as a class action. The district court correctly held that he could not proceed as a representative of a class because he did not file a class certification motion within 90 days of filing his complaint, as required by Local Civil Rule 23.1(b). D.D.C. Local Rule 23.1(b). The plaintiff has not appealed this aspect of the court’s judgment.
Accordingly, we affirm the decision of the district court dismissing the plaintiffs complaint for lack of standing.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C.CiR. Rule 41(a)(1).
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JUDGMENT
PER CURIAM.
This petition for review of an order of the National Transportation Safety Board was considered on the briefs and the appendix filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the petition for review be denied.
Jon Heyl petitions for review of an NTSB order affirming the FAA’s revocation of his pilot certificate and airman medical certificate. Heyl appeared for a mandatory pre-employment drug test but he left the testing site before producing the required 45 mL specimen of urine. See 49 C.F.R. § 40.65(a). Heyl’s “[f]ail[ure] to remain at the testing site until the testing process is complete” constitutes a refusal to test. § 40.191(a)(2).
Heyl argues the FAA’s complaint against him was untimely, the test was conducted improperly, and some evidence should not have been considered. Although the NTSB’s rules generally require the dismissal of a complaint filed more than six months after the offense, the six month limit does not apply to a complaint that presents “an issue of lack of qualification.” § 821.33(b). Heyl does not contest the FAA’s assertion that this case involves such an issue. Heyl’s arguments about problems with the testing procedures are essentially irrelevant because substantial evidence supports the findings that he neither “provided a sufficient urine specimen” nor waited the required three hours in order to trigger the full procedures for shy bladder. § 40.193(b)(2). Finally, the administrative law judge properly determined that evidence relating to Northwest Airlines’s kiosk was relevant to establish Heyl’s premature departure from the testing site. See 5 U.S.C. § 556(d); 49 C.F.R. § 821.38.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The *654Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
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SUMMARY ORDER
Anthony J. DiPlacido seeks review of the Commission’s 79-page decision affirming an administrative law judge’s (“ALJ”) determination that he manipulated settlement prices for electricity futures contracts. DiPlacido argues that (1) the decision violates due process, because he lacked notice of the theory of manipulation under which he was found liable; (2) the applied theory of manipulation was erroneous as a matter of law; (3) the weight of the evidence does not support a finding of liability; (4) the ALJ made improper evi-dentiary rulings and exhibited bias; and (5) the sanctions imposed were excessive. We assume familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Due Process
DiPlacido’s due process challenge is without merit. Due process requires that “a regulation carrying penal sanctions ... give fair warning of the conduct it prohibits or requires.” Rollins Envtl. Servs. (NJ) Inc. v. U.S. EPA, 937 F.2d 649, 653 n. 2 (D.C.Cir.1991) (internal quotation marks omitted). Although “[a]n agency is free ... to interpret its governing statute case by case through adjudicatory proceedings rather than by rulemaking,” if it “suddenly changes its view ... with respect to what transactions are bona fide trading transactions,” it may not then “charge a knowing violation of that revised standard and thereby cause undue prejudice to a litigant who may have relied on [its] prior policy or interpretation.” Stoller v. CFTC, 834 F.2d 262, 265-66 (2d Cir.1987) (internal quotation marks and citations omitted).
Citing the Commission’s observation that his case raised “issues of first impression,” In re DiPlacido, Comm. Fut. L. Rep. (CCH) ¶ 30,970, 2008 WL 4831204, at *660*1, 2008 CFTC LEXIS 101, at *1 (CFTC Nov. 5, 2008), DiPlacido complains that this is the first time the Commission has found manipulation “based solely on trade practices,” Appellant’s Br. 11. We disagree. As the Commission itself observed, the theory applied in this case was adopted in In re Henner; a case brought by its predecessor agency under a statute that is the substantive equivalent of the one at issue here, and concerning closely analogous facts. 30 Agrie. Dec. 1151 (1971) (finding manipulation where trader “intentionally paid more than he would have had to pay ... for the purpose of causing the closing quotation [to increase]”); see also In re Zenith-Godley, 6 Agric. Dec. 900 (1947) (holding that actions of trader constituted manipulation). The Commission also noted that, subsequent to Henner, it had pursued trade-based manipulation cases.
DiPlacido argues further that the Commission denied due process by abandoning an existing requirement for proof of defendant’s control over the relevant market. The Commission’s well-established precedents are plainly to the contrary, indicating that market control may be a feature of some forms of manipulation, e.g., a “corner” or “squeeze,” but is not a requirement of manipulation in all its forms. See, e.g., In re Hohenberg Bros. Co., [1975-1977 Transfer Binder] No. 75-4, Comm. Fut. L. Rep. (CCH) ¶ 20,271, 1977 WL 13562, at *7, 1977 CFTC LEXIS 123, at *24 (CFTC Feb. 18, 1977) (“A dominant or controlling position in the market is not a requisite element to either manipulation or attempted manipulation... ,”).1
Thus, this is not a case like Stoller v. CFTC, in which the agency suddenly changed its position and banned a “commonplace” practice. 834 F.2d at 265. Rather, the Commission’s reading of the broad language of 7 U.S.C. § 13(a) is consistent with prior readings and with its own practice. See, e.g., In re Indiana Farm Bureau Coop. Ass’n, Inc., [1982-1984 Transfer Binder] No. 75-14, Comm. Fut. L. Rep. (CCH) ¶ 21,796, 1982 WL 30249, at *3, 1982 CFTC LEXIS 25, at *8 (CFTC Dec. 17, 1982) (citing definition of manipulation as “any and every operation or transaction or practice, the purpose of which is not primarily to facilitate the movement of the commodity at prices freely responsive to the forces of supply and demand; but, on the contrary, is calculated to produce a price distortion”). Further, DiPlacido’s own actions, not least his instruction to Livingston to use the code words “don’t be shy,” rather than instructing him to “buy contracts worst or sell them worst,” Arb. Tr. 107, suggest actual notice that his conduct was wrongful.
Accordingly, we identify no denial of due process.
2. Applicable Legal Standard
DiPlacido claims that the Commission’s definition of manipulation is arbitrary and capricious. Our review of the Commission’s legal judgments is plenary, *661Piccolo v. CFTC, 388 F.3d 387, 389 (2d Cir.2004), but “where a question implicates Commission expertise, we defer to the Commission’s decision if it is reasonable,” id,.; see also Chevron, U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
In the absence of a statutory definition of “manipulation,” the Commission has established a four-part test under which it will find manipulation where a preponderance of the evidence shows “(1) that the accused had the ability to influence market prices; (2) that [he] specifically intended to do so; (3) that artificial prices existed; and (4) that the accused caused the artificial prices.” In re Cox [1986-1987 Transfer Binder] No. 75-16, Comm. Fut. L. Rep. (CCH) ¶ 23,786, 1987 WL 106879, at *3, 1987 CFTC LEXIS 325, at *9 (CFTC July 15, 1987). It applied this test in DiPlaci-do’s case.
DiPlacido argues that because “[e]very-one in the market has the ability to affect the market price,” the Commission erred in not imposing a further market-control requirement. Appellant’s Br. 35. Even supposing that all large traders in illiquid markets possess the ability to influence those markets, the Commission’s inclusion of “the ability to influence the market price,” rather than market control, as an element of manipulation is hardly arbitrary or capricious, as three other elements, including specific intent, must also be satisfied to establish liability. Cf. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (collecting cases and recognizing that “constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea ”); United States v. Curcio, 712 F.2d 1532, 1543 (2d Cir.1983) (Friendly, J.) (same).
DiPlacido further challenges the Commission’s standard on the ground that the elements of the four-part test “collapsef ]” into one — uneconomic trading — so that a violation exists wherever bids and offers are violated, and even lawful hedging may constitute manipulation. Appellant’s Br. 39. We are not persuaded. The Commission stated that “violating bids and offers — in order to influence prices ” was “sufficient to show manipulative intent.” In re DiPlacido, 2008 WL 4831204, at *26 (emphasis added). Its finding of intent thus depended not merely on DiPlacido’s having violated bids and offers, but also on taped conversations signaling manipulative intent and the ALJ’s finding that DiPlaci-do’s denial of intent lacked credibility. Further, the Commission cited evidence (including expert testimony) that artificial prices were a “reasonably probable consequence” of DiPlacido’s large trades made during the Close in an illiquid market. Id. at *32. Thus the Commission carefully applied all four elements of the traditional test, and DiPlacido’s challenge to the reasonableness of the Commission’s “new theory,” Appellant’s Br. 39, misses its mark.
3. Weight of the Evidence
We reject DiPlacido’s claim that the evidence does not support a finding of liability for manipulation.2 The Commis*662sion’s findings of fact, “if supported by the weight of the evidence, shall ... be conclusive.” 7 U.S.C. § 9. Our review of such findings is “narrow.” Reddy v. CFTC, 191 F.3d 109, 117 (2d Cir.1999); see also Haltmier v. CFTC, 554 F.2d 556, 560 (2d Cir.1977) (describing court’s role as “something other than that of mechanically reweighing the evidence to ascertain in which direction it preponderates; it is rather to review the record with the purpose of determining whether the finder of the fact was justified, i.e. acted reasonably (internal quotation marks omitted)).
The Commission acted reasonably in concluding that DiPlacido had the ability to influence prices where, on the relevant dates, his trades over two minutes at the Close accounted for an average 14% of a full day’s volume. Likewise reasonable was the determination that DiPlacido’s trades established artificial prices, given that several witnesses testified that he violated bids and offers. See In re Eisler, No. 01-14, Comm. Fut. L. Rep. (CCH) ¶ 29,664, 2004 WL 77924, at *6, 2004 CFTC LEXIS 9, at *18 (CFTC Jan. 20, 2004) (discussing artificial prices). Finally, we detect no unreasonableness either in the Commission’s intent finding, based in part on the referenced taped telephone calls, or in its reliance on expert testimony that DiPlacido’s actions were a likely cause of artificial prices.
4. Fair Heating
DiPlacido has not shown that he did not receive “a fair trial, conducted in accordance with fundamental principles of fair play and applicable procedural standards established by law.” Lloyd Carr & Co. v. CFTC, 567 F.2d 1193, 1196 (2d Cir.1977) (internal quotation marks omitted). The transcript shows that the ALJ’s handling of cross-examination, and his limitation of speculative and repetitive questioning, were within his “wide discretion.” Guttman v. CFTC, 197 F.3d 33, 38 (2d Cir.1999). As the Commission observed, the tape recordings were authenticated by four witnesses with knowledge of their creation and preservation, satisfying the reliability requirement of applicable agency rules. See 17 C.F.R. § 10.67(a). Further, the incidents on which DiPlacido bases his allegations of bias do not nearly establish “pervasive bias” sufficient to have warranted disqualification or other relief. Olson v. Ulmer, [1990-1992 Transfer Binder] No. 87-R-46, Comm. Fut. L. Rep. (CCH) ¶ 24,-987, 1991 WL 83515, at *3, 1991 CFTC LEXIS 50, at *7-8 (CFTC Jan. 23, 1991).
5. Sanctions
Finally, DiPlacido challenges the sanctions imposed on him. We review the imposition of sanctions for abuse of discretion. Reddy v. CFTC, 191 F.3d at 123. Abuse of discretion “[t]ypically ... will involve either a sanction palpably disproportionate to the violation or a failure to support the sanction chosen with a meaningful statement of ‘findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record.’ ” Id. (quoting 5 U.S.C. § 557(c)(3)(A)).
On the whole, the Commission’s decision demonstrates thoughtful consideration of the relationship between DiPlacido’s conduct and the purposes of the statute, as well as the evidence that he knowingly participated in unlawful conduct, that he sought to conceal that conduct and obstruct investigators, and that the conduct *663recurred over a period of several months. It explains the basis for each of the sanctions imposed. None of its findings is disturbed by the delay in imposing a sanction, the fact that this was DiPlacido’s first offense, or the transition to computerized trading. Nor is there any merit in DiPla-cido’s arguments that the Commission exceeded its discretion by fining him for after-hours trading even though NYMEX had also imposed a fine on that basis, by adjusting the sanction amount for inflation, or by imposing lesser penalties on co-defendants who settled.
However, the Commission did err by fining DiPlacido both for the substantive offense of manipulation and for aiding and abetting, where the underlying conduct was the same. As noted already, aiding and abetting “does not constitute a discrete ... offense”; rather, it is a theory of liability. United States v. Smith, 198 F.3d 377, 383 (2d Cir.1999). Thus we remit the civil penalty by $320,000, the amount imposed on the basis of aiding and abetting liability. In all other respects, we affirm the Commission’s decision as to sanctions.
We have reviewed DiPlaeido’s remaining arguments and find them to be without merit. Accordingly, the petition for review is GRANTED, the Commission’s decision is MODIFIED to reduce the civil penalty by $320,000, and the decision of the Commission as modified is AFFIRMED.
. Vitanza v. Board of Trade of the City of New York, No. 00-CV-7393, 2002 WL 424699 (S.D.N.Y. Mar. 18, 2002), cited by DiPlacido for the proposition that a “settlement price” is not susceptible to manipulation as a matter of law, is distinguishable. The question in that case was whether defendants’ alleged manipulation of settlement prices fell within the meaning of 7 U.S.C. § 25(a)(1)(D), which creates a private right of action where defendants manipulate "the price of [futures] contracts, or the price of the commodity underlying such contracts.” Vitanza v. Bd. of Trade of City of N.Y., at *5. On the commodities exchange at issue in Vitanza, settlement prices were determined by use of an arithmetical formula, rather than (as here) by trading. See id. at *1. Thus the court found that plaintiffs had failed to stale a claim under Section 25(a)(1)(D) where they alleged manipulation of the settlement price. Id. at *5.
. DiPlacido offers no separate argument as to his liability for the offense of attempted manipulation, but instead relies on his argument with regard to manipulation. Thus, to the extent he has not abandoned the former claim, our conclusions apply to both. As for aiding and abetting liability, DiPlacido has not demonstrated that the Commission erred in determining that he waived direct appeal from the ALJ's finding on that issue. DiPlaci-do's cursory treatment of aiding and abetting liability in his main brief does not mention the Commission’s waiver finding, and while he insists in his reply that he has not waived any such claim, he is careful not to claim that he mentioned it in his briefing before the Commission. Nevertheless, we reach and reverse the Commission's decision on aiding and abetting liability. See Anderson v. Bra*662nen, 27 F.3d 29 (2d Cir.1994). DiPlacido should not have been charged as an accomplice and a principal for the same underlying conduct. See United States v. Mucciante, 21 F.3d 1228, 1234 (2d Cir.1994) (observing that federal aiding and abetting statute "does not penalize conduct apart from the substantive crime with which it is coupled”).
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SUMMARY ORDER
Appellant Eitzen Bulk A/S appeals both a March 25, 2009 and April 29, 2009 order of the United States District Court for the Southern District of New York (Jones, J.). While this appeal was sub judice, we decided The Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd., 585 F.3d 58 (2d Cir.2009), in which we overruled Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263 (2d Cir.2002), and held that electronic fund transfers being processed by intermediary banks are no longer subject to attachment under Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions. Also while this appeal was sub judice, we decided Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d Cir.2009), and held that our decision in The Shipping Corp. applied retroactively. Accordingly, we VACATE the district court’s orders and REMAND the matter for consideration in light of these recent decisions.
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OPINION
GARTH, Circuit Judge:
Appellant Burgettstown Borough, Pennsylvania (“Borough”) appeals from the District Court’s denial of its motion for judgment as a matter of law or for a new trial. We will affirm.
I.
A.
Appellee Terryn Risk was employed by Borough as a police officer from October 2002 through March 5, 2005. From 2002 through the summer of 2004, Risk wore a small cross-pin on the lapel of his police uniform while he was on duty as a sign of his strong Christian beliefs. Risk freely discussed his religious convictions with Borough’s Chief of Police George Roberts and his other colleagues on the police force.
In the summer of 2004, Chief Roberts told Risk to remove the cross-pin from the lapel of his uniform. Risk complied with this request, but registered his protest to members of the Burgettstown Borough Council, including Council President Pam Church and Council Police Department Liaison Dan Johnson. Church and Johnson both told Risk that they had no problem with his wearing a cross-pin on the lapel of his police uniform. Risk subsequently began wearing the cross-pin again until Chief Roberts again asked him to remove it.
During Risk’s tenure with the police force, fellow officer Lieutenant Joseph Murray was overheard by a local store clerk, Amy Prevost, speaking to another officer about Risk’s religious beliefs in a derogatory manner. According to Pre-vost, Murray told the other officer to make sure he carried Tylenol along with him on his upcoming patrol with Risk, because he was likely to get a headache from having to listen to Risk’s preaching about “church and God.” Prevost subsequently reported this conversation to Chief Roberts and expressed concern regarding the unfavorable characterization of Risk’s religious beliefs, but in response Roberts merely laughed.
In fall 2004, members of the Borough Council began discussing the need to reduce the number of officers in its police department for budgetary reasons. At the time, Borough employed one full time police officer — Chief Roberts — and nine part-time officers, one of whom was Risk. A study conducted by the Borough Council concluded that it would be more economical for the town to employ two full-time officers and only three part-time officers.
In November 2004, Chief Roberts was chatting with Prevost, and in the course of the conversation they began discussing the impending cuts to the police force. Roberts asked Prevost her opinion regarding which three of the department’s nine part-time officers should be retained, and Pre-vost responded by naming Risk, Lt. Murray, and a third officer, Sergeant August Modin. Roberts then commented that Risk would not be retained because his church attendance interfered with his obligations to the police force. Prevost responded that she didn’t think the Borough should get rid of a good officer just because he went to church.
Prevost subsequently informed Risk of her conversation with Chief Roberts. Risk believed that Roberts’ comment about his church attendance interfering with his job, particularly in light of Roberts’ repeated requests that Risk remove his cross-pin, was evidence of religious discrimination. Risk sought legal counsel, and on Decern-*728ber 7, 2004, Risk’s attorney drafted a letter, addressed to Chief Roberts and copying all members of the Borough Council, requesting that Risk be permitted to wear the cross-pin on his uniform, and asserting that firing Risk for the reasons articulated by Roberts in his conversation with Pre-vost would constitute unlawful religious discrimination. Risk’s attorney attached a written statement by Prevost outlining the contents of her conversation with Chief Roberts. None of the letter’s recipients ever responded to Risk’s concerns.
On January 9, 2005, Borough removed Risk from the police officer’s duty schedule. On February 16, 2005, Borough wrote to all police officers announcing that it would be making cuts to the force based upon performance and availability. At that time, Risk informed councilman and police liaison Johnson that he was “very available” to work. Risk also wrote a letter to Chief Roberts stating that he was available to work every day.
On June 23, 2005, Borough officially notified Risk of his termination. In accordance with the recommendation of the cost-study, Borough elected to retain three part-time officers on the force. In addition to retaining Lt. Murray, Borough also retained two other part-time officers: Price and Nichols. Significantly, Borough had hired Nichols in September 2004, nearly two years after it had hired Risk.
When Risk had initially begun working as a Borough police officer in 2002, he had applied for a waiver of the otherwise-mandatory training program, because he had already undergone a similar training program in preparation for his employment as a police officer in Amsterdam, Ohio. At the time that Risk completed his waiver application, he was under the impression that his training and experience in Ohio qualified him to waive out of the Borough’s mandatory training program. Risk’s waiver application was accepted, and he was certified to work as a Borough police officer without having to attend the training program.
In May 2006, more than a year after Borough had fired Risk, a Borough attorney communicated with the Pennsylvania Municipal Police Officers’ Education and Training Commission (“MPOETC”) with questions regarding the validity of Risk’s certification. This led to an inquiry into whether Risk’s prior experience as a police officer in Ohio had been sufficient to permit a waiver of training in Pennsylvania. The investigation concluded on September 13, 2007, when the MPOETC determined that Risk’s certification had been issued in error, since his Ohio police work was in fact not sufficient to entitle him to a waiver of training requirement prior to his work for Borough. Notably, Risk was not found to be at fault for the erroneous issuance of certification.
B.
On August 2, 2005, Risk filed a complaint against Borough asserting four causes of action alleging violations of various constitutional rights, as well as violation of 42 U.S.C. § 1983. Risk later filed an amended complaint, which included Title VII counts of discrimination and retaliation based upon religion. Risk also filed a second amended complaint asserting a cause of action under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. C.S.A. § 955(a), et seq.
In response, Borough filed a motion for summary judgment, which the District Court granted in part and denied in part. The District Court granted summary judgment in favor of Borough with respect to Risk’s constitutional claims, but denied the motion with respect to Risk’s Title VII and PHRA claims.
The action proceeded to trial, which was held from March 24-27, 2008. At the con-*729elusion of the trial, the jury found in favor of Risk, concluding that Risk’s religion was a determinative factor in Borough’s decision to terminate Risk’s employment. The jury entered a verdict in favor of Risk in the amount of $100,000 in compensatory damages.
On May 29, 2008, Borough filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), or for a new trial pursuant to Fed.R.Civ.P. 59. Borough argued that it was entitled to judgment as a matter of law or, alternatively, a new trial, because the District Court had committed reversible error in: (1) prohibiting Borough from using the fact of Risk’s decerti-fication to contest his establishment of a prima facie case of Title VII discrimination; (2) admitting certain evidence during the trial; and (3) providing erroneous instructions to the jury.
The District Court entered a memorandum and order on November 14, 2008, 2008 WL 4925641, denying in whole Borough’s motion for judgment as a matter of law or for a new trial. Borough timely appealed.1 Inasmuch as the parties are familiar with all the details of this case and trial, we need not dwell at length on the various arguments asserted by Borough and Risk.
II.
Borough argues that the District Court erred in prohibiting Borough from using evidence of Risk’s ex post facto decertification to challenge the viability of Risk’s Title VII claim. Borough submits that if it had been permitted to use evidence of the decertification to challenge Risk’s Title VII claim, Risk would not have been able to make out a prima facie case, and therefore it is entitled to judgment as a matter of law.
“We review a denial of judgment as a matter of law de novo, viewing the evidence in the light most favorable to the prevailing party.” Acumed LLC v. Advanced Surgical Svcs., Inc., 561 F.3d 199, 210 (3d Cir.2009) (quoting Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir.2006)) (alterations and quotation marks omitted).
A
Risk advanced his Title VII claim under the “pretext” theory set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, in order to assert a prima facie Title VII claim, Risk was obligated to produce evidence that: (1) he is a member of a protected class; (2) he was qualified for the position he sought to attain or retain; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination. McDonnell, 411 U.S. at 802, 93 S.Ct. 1817; accord Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n. 5 (3d Cir.1996).
Borough acknowledges that Risk satisfied his burden with respect to elements (1), (3), and (4), but contends that Risk failed to establish element (2), thereby dooming his claim. To wit, Borough asserts that Risk cannot, as a matter of law, satisfy this requirement — namely, to prove that he was qualified for the position of Burgettstown municipal police officer at the time of the adverse action — because in 2007 the MPOETC revoked Risk’s certification as a police officer upon reaching a determination that his initial certification was issued in error. Borough argues that since Risk’s certification was issued in error, the MPOETC’s determination effected *730a retroactive revocation of Risk’s certification. As such, Risk was never actually qualified to work as a police officer in Burgettstown, and therefore cannot satisfy element (2) of the McDonnell Douglas rubric.
Borough’s argument fails pursuant to our holding in Bowers v. NCAA, 475 F.3d 524 (3d Cir.2007). In Bowers, we relied upon the Supreme Court’s discussion of after-acquired evidence in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995), in holding that after-acquired evidence cannot be used to contest a plaintiffs qualifications for purposes of establishing a prima facie case of discrimination.2 See Bowers, 475 F.3d at 536-37 (quoting McKennon, 513 U.S. at 360, 115 S.Ct. 879) (“It is clear that the Defendants were completely unaware of Bowers’ [dis-qualifiers] at the time the allegedly unlawful discrimination took place.... In turn, the Defendants could not have been motivated by knowledge they did not have, and thus cannot now claim that Bowers was deemed a nonqualifier because of his [after-discovered disqualifiers].”) (quotation marks, alterations, and citations omitted).
Borough only became aware of the problem with Risk’s certification more than two years after it had taken the adverse employment action upon which Risk’s Title VII claim is founded, thereby rendering the fact of his faulty certification “after-acquired evidence.” Thus, under Bowers, Borough was prohibited from using the fact of Risk’s decertification to undermine his prima facie claim.
B.
Borough argues that Bowers should not control this issue because: (1) applying Bowers to this case would conflict with our precedent; (2) our jurisprudence indicates that Bowers was in fact an incorrect interpretation of McKennon-, and (3) various non-controlling decisions by other courts dictate that we should overrule Bowers as an incorrect application of McKennon.
We find these arguments unavailing. The District Court correctly held that, under Bowers, such after-acquired evidence cannot be used by Borough as a means to contest Risk’s qualifications as a police officer for the purposes of establishing Risk’s prima facie discrimination claim. We therefore hold that the District Court was correct in prohibiting Borough from challenging Risk’s prima facie Title VII claim with the fact of his decertification.
III.
Borough contends that the District Court erred in admitting certain pieces of evidence, and that without such evidence, the jury’s verdict in favor of Risk could not have been sustained, thereby entitling Borough to judgment as a matter of law or, alternatively, a new trial. We hold that the District Court did not err in admitting any of the evidence contested by Borough.
A.
Borough argues that the District Court committed an error of law in allowing Risk to offer testimony concerning his decertifi-cation from the Burgettstown police force. However, as evidenced by the trial record, *731Risk’s testimony regarding his decertification was not offered for the purpose of contesting the validity of the decision to decertify him.3 See App. at 505-11. Instead, Risk’s testimony was offered to buttress his credibility by clarifying that he did not intentionally or knowingly mislead the MPOETC when applying for certification in Pennsylvania, and that he was not at fault for the confusion regarding his certification.
It is well-established that the doctrines of issue preclusion and collateral estoppel operate to preclude relitigation of an issue that has been previously decided. New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Since Risk did not attempt to relitigate any of the issues surrounding his decertification, his testimony on that topic was not precluded, and the District Court correctly admitted it.
B.
Pursuant to a request by Risk, the District Court took judicial notice of The Pennsylvania Police Tenure Act, 53 Pa. Cons.Stat. Ann. §§ 811-15 (“PTA”),4 “solely because its seniority provisions were relevant to pretext; that is, layoffs must occur in reverse order of seniority, and Risk had been hired before others who were not furloughed.” App. at 7.
The PTA, by its terms, applies only to boroughs with a police force of fewer than three members. 53 Pa. Cons.Stat. Ann. § 811. Burgettstown had a total of ten members on its police force at the time of Risk’s termination. Borough argues that in taking judicial notice of the PTA, and in charging the jury that it could find that Borough’s explanation for terminating Risk was pretext if it found that the seniority protocol mandated by the PTA was not followed, the District Court committed an error of law.
While Borough is correct in that the PTA does not govern the employment procedures of Burgettstown’s police force, we note that such procedures are instead governed by the Pennsylvania Borough Code, 53 Pa. Cons.Stat. Ann. §§ 46171 et seq. (“Borough Code”), which applies to boroughs with police departments comprised of three or more members. Id. at § 46171. Significantly, the Borough Code mandates precisely the same seniority protocol as the PTA. See id. at § 46190.5 *732Thus, the District Court’s jury instruction regarding the PTA was in fact harmless, since regardless of whether the PTA or the Borough Code applies, the substance of the District Court’s instruction was correct — namely, that as a matter of law, Risk was protected by the seniority furlough provisions that were ignored by Borough in terminating Risk.
Accordingly, we hold that the District Court did not commit reversible error in taking judicial notice of the PTA rather than the Borough Code. See Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir.1995) (“errors in the admission ... of evidence cannot be grounds for reversal or a new trial if they constitute harmless error”).
C. Cross-Pin
During pre-trial motion practice, the District Court granted Borough’s motion for summary judgment on Risk’s constitutional claims, ruling that Risk could “premise no claim of constitutional violation on a restriction of his right to wear a symbol of his Christian beliefs on the lapel of his police uniform while performing his duties in the community with the significant government authority invested by his office.” App. at 98. Nevertheless, the District Court permitted Risk to introduce evidence regarding the cross-pin and Chief Roberts’ request that it be removed. The District Court also instructed the jury that it could “consider the fact that the Chief of Police asked Mr. Risk to remove his cross pin as evidence of discriminatory animus.”
The mere fact that Chief Roberts’ request that Risk remove his cross-pin was constitutionally permissible does not preclude Risk from pointing to that action as evidence of discriminatory animus in support of his Title VII claim. Cf. Daniels v. City of Arlington, Texas, 246 F.3d 500, 506 (5th Cir.2001) (holding, in the face of the police department’s constitutionally permitted regulation prohibiting the wearing of cross-pins, that the police officer asserted sufficient evidence to establish a prima facie Title VII claim against the department). Accordingly, the District Court did not err in admitting evidence regarding Risk’s cross-pin and Chief Roberts’ reaction to that pin.
D.
Borough argues that the District Court erred in admitting the testimony of Amy Prevost, a clerk at a local mini-mart, regarding: (1) a conversation Prevost overheard wherein Lieutenant Murray spoke disparagingly of Risk’s religious beliefs; (2) and a conversation that Prevost had with Chief Roberts wherein Roberts made statements relating to Risk’s work performance. According to Borough, the statements attributed to Murray and Roberts are inadmissible hearsay, and therefore should not have been allowed by the District Court.
Borough is incorrect. “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter assented.” Fed.R.Evid. 801(c) (emphasis added). Since the statements attributed to Murray and Roberts were not offered to prove the truth of the matter asserted by each respective statement, they are not hearsay. See Abrams, 50 F.3d at 1218 n. 16 (“[W]e are persuaded that [the witness’] testimony that he heard of the decision to terminate [the plaintiff] from someone else could have been admitted as nonhearsay as it was not offered for the truth of the matter asserted ([i.e.,] *733that [the plaintiff] was being terminated) but [rather] as evidence that [a third party], and not [the witness], had made the termination decision ... ”).
Prevost’s testimony regarding the statements made by Murray and Roberts was not hearsay. The District Court therefore did not err in admitting the testimony.
IV.
Borough asserts that the District Court erred in its jury instructions regarding: (1)the Police Tenure Act; (2) the cross-pin; (3) Borough’s workplace culture; and (4) the non-production of recordings of Borough Council meetings, and as a result of those errors, Borough is entitled to a new trial.
“Where the challenge to a jury instruction is a challenge to the instruction’s statement of a legal standard, we exercise plenary review.” United States v. Urban, 404 F.3d 754, 779 (3d Cir.2005) (quoting United States v. Zehrbach, 47 F.3d 1252, 1260, 1264 (3d Cir.1995)) (quotation marks and citation omitted). We have carefully examined all of the jury instructions and Borough’s objections to those instructions, and conclude that the District Court did not commit reversible error regarding its instructions to the jury.
y.
Based on the foregoing, we hold that the District Court did not err in denying Borough’s motion for judgment as a matter of law or for a new trial, and we will affirm its judgment dated November 14, 2008.
. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1343 and 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. Though Bowers addresses a claim under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12132, 12182 (“ADA”), Bowers’ discussion of the use of after-acquired evidence to rebut the “qualification” element of an ADA claim is equally applicable to the instant case, which involves a Title VII claim, since the prohibition of using after-acquired evidence applies to both claims under the ADA and Title VII. See Bowers v. NCAA, 475 F.3d 524, 537 (3d Cir.2007) (citing to Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072 (3d Cir.1995), a case involving a Title VII claim, when discussing the prohibition of using after-acquired evidence to dispute the “qualification” element of a discrimination claim).
. Indeed, Risk admitted in open court that he had been decertified subsequent to his termination. See App. at 140-41.
. The Police Tenure Act provides, in pertinent part:
If, for reasons of economy or other reasons, it shall be deemed necessary by any township of the second class, or any borough or township of the first class within the scope of this act, to reduce the number of paid employees of the police department, then such political subdivision shall apply the following procedure: [...] If the number of paid employees in the police force eligible to retirement is sufficient to effect the necessary reduction in number, or if there are no persons eligible for retirement, or if no retirement or pension fund exists, then the reduction shall be effected by furloughing the man or men, including probationers, last appointed to said police force. Such removal shall be accomplished by furloughing in numerical order, commencing with the man last appointed, until such reduction shall have been accomplished.
53 Pa. Cons.Stat. Ann. § 813.
.The Borough Code provides, in pertinent part:
If for reasons of economy or other reasons it shall be deemed necessary by any borough to reduce the number of paid employees of the police or fire force, then such borough shall apply the following procedure: [...] if the number of paid employees in the police force or fire force eligible to retirement is insufficient to effect the necessary reduction in numbers, or if there are no persons eligible for retirement, or if no retirement or pension fund exists, then the reduction shall be effected by furloughing the person or persons, including probation*732ers, last appointed to the respective force. Such removal shall be accomplished by furloughing in numerical order commencing with the person last appointed until such reduction shall have been accomplished.
53 Pa. Cons.Stat. Ann. § 46190.
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OPINION
AMBRO, Circuit Judge.
The sentencing of Raymond Shelton is before us on appeal for a third time. We have twice vacated and remanded for re-sentencing after the Government twice breached the plea agreement. Shelton now appeals the sentence imposed by the District Court on the second remand. We affirm.1
*735I.
In 2002, Shelton pled guilty to five firearms charges and conspiracy to distribute ecstacy. He was sentenced to 188 months’ imprisonment. However, at the sentencing hearing, the Government breached its plea agreement with Shelton by asking for a base offense level higher than the level stipulated in the agreement. Therefore, on appeal we vacated and remanded for resentencing before another District Judge. United States v. Shelton, 91 Fed.Appx. 247, 248 (3d Cir.2004) (not prece-dential) (“Shelton I ”). On remand, Shelton was sentenced to 168 months’ imprisonment. On appeal from that sentencing, we also vacated and remanded the case for resentencing before another District Judge, holding that the Government again violated the plea agreement by asking for a sentence “within the sentencing guideline range,” which was higher than the range contemplated by the plea agreement. United States v. Shelton, 179 Fed.Appx. 809, 812 (3d Cir.2006) (not precedential) (“Shelton II”).
On the second remand, prior to sentencing, the Government filed a written sentencing memorandum that it withdrew at the beginning of the sentencing hearing after the District Court warned the Government that its position was in violation of Shelton II.2 After the Court stated that it would completely disregard the stricken memorandum, it asked if Shelton wanted another Judge to continue the sentencing. Shelton declined. He raised several objections to the Presentence Report (“PSR”), and the Court continued the sentencing until a later date to consider the objections.
When the hearing resumed some months later, the Court agreed with the PSR that the base offense level for the firearms charges was 26 because the offense involved “a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30),” and Shelton had two qualifying convictions for crimes of violence. See U.S. Sentencing Guidelines Manual § 2K2.1(a)(l) (2000).3 Shelton received a two-level enhancement for possessing a firearm with an obliterated serial number, see U.S.S.G. § 2K2.1(b)(4), and a two-level enhancement for the number of firearms, see U.S.S.G. § 2K2.1(b)(l)(B), as contemplated by the plea agreement. Because U.S.S.G. § 2K2.1(b) states that “the cumulative offense level determined [up to this point] shall not exceed level 29,” it was decreased from 30 to 29. Shelton was then subject to a four-level specific offense characteristic enhancement under U.S.S.G. § 2K2.1(b)(5), followed by a three-level downward adjustment for acceptance of responsibility, see U.S.S.G. § 3E1.1, bringing his total offense level to 30. Shelton would have been in Criminal History Category V but for his status as a career offender, which placed him in Category VI. Shelton’s Guideline range was 168 to 210 months’ imprisonment. The Government requested a sentence of 77 to 96 months.
After reiterating that it did not consider the Government’s stricken sentencing memorandum in imposing sentence, the Court sentenced Shelton to 168 months’ imprisonment. It imposed a fine of $750 *736and a special assessment of $600. The Court later filed a written memorandum setting out in more detail the bases for its sentencing determination. Shelton timely appealed.
II.
A.
Shelton argues that the Government’s written memorandum filed prior to his sentencing breached the plea agreement, and because the District Court read the memorandum, either the sentencing should have been conducted by a different Judge or the Court should have allowed Shelton to withdraw his plea.
However, after the Government withdrew the memorandum and the District Court struck it from the record, Shelton declined the Court’s offer to have the sentencing proceed before another District Judge.4 Therefore, Shelton voluntarily waived his right to a remedy for any breach of the plea agreement by the Government involving the stricken memorandum.
Shelton also argues that the Government breached the plea agreement by not moving for a downward departure under U.S.S.G. § 5K1.1 for substantial assistance to the Government. Because the Government retained in the plea agreement “sole discretion” whether to make a § 5K1.1 motion, see Supp’l App. 142, it could breach the agreement only by declining to make the motion in bad faith. See United States v. Isaac, 141 F.3d 477, 483-84 (3d Cir.1998).
The only evidence presented by Shelton regarding his cooperation consisted of the testimony of his former attorney, Christopher Warren, at the first sentencing hearing. Warren discussed the history of Shelton’s cooperation and repeatedly stated that he did not believe the Government had acted in bad faith. Shelton presented no other relevant evidence or argument on the issue. Therefore, Shelton failed to meet his burden of demonstrating that the Government breached the plea agreement. See United States v. Swint, 223 F.3d 249, 254 (3d Cir.2000).
B.
Shelton next argues that his simple assault conviction did not constitute a “crime of violence” under the Guidelines. The criminal information filed against Shelton charged that he “unlawfully attempted] to cause or intentionally, knowingly or recklessly cause[d] bodily injury to another, or attempt[ed] by physical menace to put another in fear of imminent serious bodily injury,” in violation of the Pennsylvania simple assault statute (“PSAS”), 18 Pa. Cons.Stat. § 2701. We recently held that an intentional or knowing violation of subsection (a)(1) of the PSAS qualifies as a crime of violence under U.S.S.G. § 4B1.2(a)(2). United States v. Johnson, 587 F.3d 203, 212 (3d Cir.2009).
To determine the specific part of § 2701 to which Shelton pled guilty, we 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 ... some comparable judicial record of *737this information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also Johnson, 587 F.3d at 209. Here, the state of mind to which Shelton pled guilty can be determined from the plea colloquy at Shelton’s guilty plea on the simple assault charge:
Q: Do you understand the elements] of the offense of simple assault?
A: Yes, I do.
Q: Well, I’m going to tell you what they are. The Commonwealth would have to prove in order to prevail in this case that you attempted to cause or that you intentionally or knowingly caused bodily injury to another person. Do you understand that?
A: Yes.
Supp’l App. 174. This colloquy makes clear that Shelton pled guilty to an intentional or knowing violation of subsection (a)(1).5 Therefore, the District Court properly determined that the conviction qualified as a crime of violence in this case.6
C.
Shelton objects to the four-level enhancement imposed by the Court under U.S.S.G. § 2K2.1(b)(5),7 which applies when a defendant “used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” “In connection with” covers a wide range of relationships and is construed expansively. United States v. Loney, 219 F.3d 281, 284 (3d Cir.2000) (simultaneous possession of a pistol and heroin satisfied U.S.S.G. § 2K2.1(b)(5)). The application of this enhancement was appropriate, as Shelton admitted at his guilty plea colloquy that he sold an informant a rifle, ammunition, and magazines, and at the same time gave the informant ecstacy tablets. Supp’l App. 99-101; see also PSR ¶ 16. These actions constituted use or possession of a firearm and ammunition “in connection with” distribution of ecstacy, another felony offense.
D.
Shelton also argues that the District Court failed to treat the Guidelines as advisory. However, the Court on several occasions expressly noted the advisory nature of the Guidelines, and nothing in the record indicates otherwise.
He contends as well that the District Court erred by failing to weigh properly the factors set forth in 18 U.S.C. § 3553(a). We disagree. We review criminal sentences for reasonableness, and courts’ consideration of the relevant § 3553(a) factors must be rational and meaningful. United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en bane). Here, the Court’s oral findings at sentencing and its written memorandum opinion show that it gave meaningful consideration *738to the § 3553(a) factors. It addressed, among other things, the “extremely grave” nature of the offenses, Shelton’s significant criminal history, limited history of legitimate employment, and substance abuse problems, and the “extraordinary” support shown by Shelton’s family at the sentencing hearings.
Finally, Shelton asserts that the District Court impermissibly delegated to the Bureau of Prisons its duty to set the manner and schedule of Shelton’s payments of his fine and special assessment. The Court ordered the fine was due immediately, recommended that Shelton participate in the Bureau of Prisons’ Inmate Financial Responsibility Program, and ordered that, should the fine remain outstanding upon his release from confinement, it would become a condition of supervised release to be paid at the rate of at least $25 per month beginning 30 days after his release. Shelton’s objection to the Court’s order is meritless, as it is based on 18 U.S.C. § 3664(f), a statute that does not apply to fines and special assessments.
We have considered Shelton’s other arguments and conclude that no further discussion is necessary. We affirm Shelton’s sentence.8 •
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. While the Government failed to include this sentencing memorandum in its Supplemental Appendix, the District Court described it as requesting a sentence between 151 and 188 months.
. Shelton contends that the 2001 Sentencing Guidelines Manual was used instead of the 2000 Manual, creating ex post facto issues. However, the United States Probation Office did use the 2000 Manual. See PSR ¶ 32 ("The 2000 edition of the Guidelines Manual has been used in this case.”); Supp'l App. 77 (District Court Mem.) ("Probation applied the 2000 version of the Guidelines to Defendant.”).
. THE COURT: I will state for the record that the government's request for a hundred and fifty-one to a hundred and eighty-eight month sentence in my view is illegal. I will completely disregard it, and it will form no part in my decision as to what sentence will be imposed in this case. Mr. Ingram [Shelton’s counsel], does that satisfy you and your client as to whether or not I can continue to preside in this sentencing?
MR. INGRAM: Yes, Judge, it does. Supp’l App. 14-15.
. The "attempted to cause" portion of the court's question does not change this analysis, as an attempt constitutes intentional conduct. "[BJy its very nature acting recklessly is inconsistent with the mens rea required for attempt. A person cannot intend to commit a criminally reckless act. He or she either acts recklessly or does not.” Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir.2004).
. We reject Shelton’s argument that the prior conviction must be specifically designated as a "felony” under stale law to be considered a "felony” for purposes of tire career offender provision. See U.S.S.G. § 4B1.2 cmt. n. 3. We also reject as frivolous his argument that treating this conviction as a "crime of violence” violates the Full Faith and Credit Clause of the U.S. Constitution.
.U.S.S.G. § 2K2.1(b)(5) was renumbered in November 2006 as U.S.S.G. § 2K2.1(b)(6).
. In a supplemental brief, Shelton appears to argue that the Government improperly pursued an indictment charging a firearms violation under 18 U.S.C. § 922(g)(1), after it had moved to dismiss firearms counts from a complaint filed prior to Shelton's indictment. This argument was not presented to the District Court or in Shelton's opening brief. Moreover, there is no basis in the record for this assertion, as Shelton pled guilty freely and voluntarily to a charge brought under § 922(g)(1), the plea agreement states that the parties’ agreement contains no additional promises or understandings other than those set forth in the written agreement, and Shelton agreed during his plea colloquy that no promises had been made other than the promises stated on the record.
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OPINION
SMITH, Circuit Judge.
Jeffrey D. Feldstein, M.D., brought this qui tam action under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., against appellees Organon and Schering Plough, claiming that Organon’s failure to disclose the harmful side effects of the pharmaceutical drug Raplon resulted in the submission of false claims to Medicare and Medicaid.1 The District Court dismissed Feldstein’s complaint for lack of jurisdiction, and, in the alternative, for failure to comply with the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. We will affirm.
I.
Because we write only for the parties, who are familiar with the record, we recount only those facts which are essential to our decision. Organon developed, manufactured, and sold Raplon, which was approved by the FDA on August 18, 1999. Raplon was a neuromuscular blocking agent used during surgery and other medical procedures. After Raplon entered the market, there were reports of episodes of an adverse side effect known as bronchos-pasm, and in some cases a severe form of bronchospasm known as “cement lung,” in patients who were treated with the drug. These conditions made breathing difficult and led to severe injuries in certain patients, and in some cases, death. These harmful side effects also spawned lawsuits against Organon, several of which alleged that Organon fraudulently concealed safety information about Raplon’s potential to cause bronchospasm and cement lung, both before and after the FDA approved *740the drug. Organon voluntarily withdrew Raplon from the market in March of 2001.
In May of 2000, Organon hired Feldstein to serve as its Associate Director of Medical Services for Antithrombotics. His duties included assisting with the launch of the anticoagulant drug Arixtra. A disagreement soon arose between Feldstein and his superiors. Feldstein complained that Organon personnel were concealing instances of bleeding associated with Arix-tra, and that his supervisor, Dr. Jonathan Deutsch, attempted to coerce Feldstein into disseminating false information about such bleeding. Organon fired Feldstein in May of 2001.
During his tenure at Organon, Feldstein did not work on Raplon, nor was he involved in obtaining FDA approval for the drug. He makes no claim that he was part of, or personally observed, any fraud related to Raplon. Before he left Organon, however, Feldstein voiced his concerns about Deutsch and Arixtra to Dr. Daniel Sack, Organon’s Associate Director of Anesthesiology. Sack informed Feldstein that Raplon, with which Deutsch was also involved, had caused multiple deaths since its approval. Sack then showed Feldstein an email concerning Raplon that he had discovered on his laptop computer. The email was written by Deutsch and sent to Dr. Deborah Shapse, Organon’s Vice President of Medical Services. It predated Raplon’s FDA approval. In the email, Deutsch described bronchospasm as “a potential problem that needed to be addressed prior to launch” and stated that “Michael may be correct in not wanting to draw attention to bronchospasm.” Feld-stein claims that “Michael” was Michael Novinsky, Organon’s Vice President of Marketing. He describes this email as a “smoking gun” because he claims that it proves that Organon knew of the respiratory dangers posed by Raplon before it was approved, but failed to disclose those dangers to the FDA and otherwise attempted to withhold safety information about Raplon from the medical community.
Later, Feldstein reviewed Organon’s submissions to the FDA concerning Ra-plon and concluded that Organon had inadequately disclosed Raplon’s risk of serious adverse events (SAEs). He also spoke with Robert Piona, Organon’s former Brand Manager for Anesthetics. Piona had been involved with Raplon marketing efforts, and he supplied Feldstein with more details about events referenced in the “smoking gun” email. Feldstein’s conversation with Piona reinforced his belief that the email from Sack to Shapse was evidence of fraud.
In April of 2002, Feldstein filed a qui tam complaint against Organon pursuant to the FCA. After the government declined to intervene in June of 2006, see 31 U.S.C. § 3730(b)(4)(B), Feldstein filed an amended, one-count complaint in the United States District Court for the District of New Jersey on April 14, 2008. The complaint alleged that Organon concealed the respiratory dangers of Raplon and contended that Raplon’s regulatory approval was “invalid” because it was obtained through fraud on the FDA. The consequence of this fraud, Feldstein alleged, was that hospitals, physicians and patients submitted “false claims” to Medicare and Medicaid, because those programs “would not have reimbursed ... for the use of Raplon had [they] known that the FDA approved Raplon without the benefit of adequate disclosures” regarding Raplon’s potential for harmful side effects.
The District Court dismissed Feldstein’s complaint for lack of jurisdiction because it concluded that Feldstein’s claim was foreclosed by the FCA’s public disclosure bar. See 31 U.S.C. § 3730(e)(4)(A). As an alternative holding, the District Court concluded that Feldstein’s “false claims” alie-*741gations were generalized and speculative, and thus dismissed the complaint for failure to comply with Rule 9(b).
Feldstein filed this timely appeal. Jurisdiction in this court arises under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s dismissal under Rule 12(b)(1). United States ex rel Paranich v. Sorgnard, 396 F.3d 326, 331 (3d Cir.2005).2
II.
The FCA’s public disclosure bar provides that “[n]o court shall have jurisdiction” over a qui tam action brought by a private plaintiff if that action is “based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing,” certain government reports, or “the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.” 31 U.S.C. § 3730(e)(4)(A). In other words, if Feld-stein’s complaint is “based upon” allegations that were previously disclosed in certain qualifying public sources, his claim is barred unless he is an original source of those allegations. The list of qualifying sources includes certain government reports and the news media. See id. It also includes allegations contained in civil complaints. United States ex rel. Stinson, Lyons, Gerlin & Bustamante P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1157 (3d Cir.1991).
A. Feldstein’s Claim Was “Based Upon” Publicly Disclosed Allegations
A “qui tam action is ‘based upon’ a qualifying disclosure if the disclosure sets out either the allegations advanced in the qui tam action or all of the essential elements of the qui tam action’s claims.” United States ex rel Mistick PBT v. Hous. Auth. of City of Pittsburgh, 186 F.3d 376, 388 (3d Cir.1999) (emphasis added). “To be ‘based upon’ the publicly revealed allegations or transactions,” the allegations in the relator’s complaint need not be “actually derived from” the publicly disclosed allegations. United States ex rel. Atkinson v. Pa. Shipbldg. Co., 473 F.3d 506, 519 (3d Cir.2007). Rather, they “need only be ‘supported by1 or ‘substantially similar to’ the disclosed allegations and transactions.” Id. Substantial similarity exists where there is “substantial identity” between the publicly disclosed allegations and the allegations in the relator’s complaint. United States ex rel. Poteet v. Medtronic, Inc., 552 F.3d 503, 514 (6th Cir.2009).
We conclude that the allegations in Feldstein’s complaint are substantially similar to allegations that were publicly disclosed in earlier Raplon-related personal injury lawsuits against Organon. The central premise of Feldstein’s false claims theory is the allegation that Organon concealed the harmful side effects of Raplon, both before and after its FDA approval. For example, Feldstein alleged that Orga-non:
• “[Fjailed to disclose to the FDA instances and the severity of the SAEs associated with Raplon both before and after obtaining FDA approval”;
• “[Njever advised doctors or patients of the potential for SAEs in any labeling or package insert and never had a treatment protocol in place prior to or even after launch”;
• “[Njever informed the FDA, hospitals, physicians or patients that Raplon posed a serious threat to public health *742and safety” before it withdrew the drug from the market;
• “[K]nowingly misrepresented and/or concealed relevant information from the FDA in order to obtain, and subsequently retain, regulatory approval for Raplon”; and
• “[K]nowingly failed to warn hospitals, physicians and patients of the dangers posed by Raplon” from August 1999 through March 2001.
Substantially similar allegations of concealment of the harmful side effects of Raplon — specifically its potential to cause bronehospasm and cement lung' — were asserted in the complaint filed in Rogers v. Organon, Inc., No. 190698B, in Texas state court in February of 2002. The complaint in Rogers alleged that Raplon “causes and contributes to severe and disabling medical conditions including severe bronehospasm which can result in death or ‘cement lung’ ” and that “[p]rior to marketing Ra-plon, ... Organon knew or should have known that Raplon could cause death or cement lung as a result of severe bron-chospasm.” It further alleged that Orga-non failed “to ascertain and report the existence, nature, and extent of the risk of severe bronehospasm posed by Raplon”; failed to “give an adequate, meaningful warning regarding the significant risk of bronehospasm and/or cement lung related dysfunctions of Raplon”; and “[r]ecklessly, falsely, and/or deceptively represented or knowingly omitted, suppressed, or concealed facts of such materiality regarding the safety and efficacy of Raplon from prescribing physicians and the consuming public.” At a minimum, there is “substantial identity” between these allegations and the allegations of fraud in Feldstein’s complaint. Poteet, 552 F.3d at 514.3
Feldstein contends that his allegations are not “based upon” the allegations in Rogers because that complaint sounded in negligence, failure to warn, and breach of warranty, and made no reference to Medicare, Medicaid, or false claims. This distinction is unavailing. Feldstein’s identification of one specific legal consequence of the alleged fraud — the possible submission of false claims to Medicare and Medicaid— does not change the substantially similar nature of the underlying allegations of fraud and concealment in each action. See United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675, 688 (D.C.Cir.1997) (noting that a “relator’s ability to recognize the legal consequences of a publicly disclosed fraudulent transaction does not alter the fact that the material elements of the violation already have been publicly disclosed”); Kennard v. Comstock Res., Inc., 363 F.3d 1039 (10th Cir.2004) (same); A-1 Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1245 (9th Cir.2000) (noting that the “mere fact that [the relator’s] own expertise ... enabled it to formulate its novel legal theory of fraud is irrelevant to the question of whether the *743material transactions giving rise to the alleged fraud were already disclosed in the public domain in the first place”).
The allegations of fraud in Feldstein’s complaint are substantially similar to allegations that were publicly disclosed in the Rogers complaint. Therefore, the District Court correctly held that the allegations in Feldstein’s complaint were “based upon” those publicly disclosed allegations for purposes of the public disclosure bar.
B. Feldstein Was Not an “Original Source”
Because Feldstein’s allegations were “based upon” public disclosures, the District Court lacked jurisdiction over his claim unless he was an “original source” of the allegations in his complaint. To qualify as an “original source,” the private plaintiff must have “direct and independent knowledge of the information on which the allegations are based and ... voluntarily provide[] the information to the Government before filing” the action. 31 U.S.C. § 3730(e)(4)(B). “Direct” knowledge means knowledge that is “immediate” and “marked by absence of an intervening agency[.]” Stinson, 944 F.2d at 1160. The “independent” knowledge requirement means that “knowledge of the fraud cannot be merely dependent on a public disclosure.” Paranich, 396 F.3d at 336.
We conclude that Feldstein lacked “direct” knowledge of Organon’s alleged fraud. To be direct, Feldstein’s knowledge must have arisen from his “own efforts, ... not by the labors of others, and ... [must not be] derivative of the information of others.” Id. (quoting United States ex rel Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1162 (10th Cir.1999)). It is undisputed that Feldstein was not involved in the FDA approval process for Raplon; he could not have been, for Raplon’s FDA approval predated Feldstein’s employment with Organon. Once employed by Organon, Feldstein did no work related to Raplon. He describes no fraud concerning Raplon that he personally witnessed or in which he participated. His knowledge concerning Orga-non’s alleged fraud was acquired through “intervening agencies],” see Stinson, 944 F.2d at 1160, such as his receipt of the “smoking gun” email from Dr. Sack and his conversation with Piona. This is not the kind of “immediate,” first-hand knowledge required by our precedents. Id. Accordingly, we conclude that Feldstein lacked “direct and independent knowledge of [Organon’s] allegedly fraudulent statements” concerning Raplon, and thus was not an original source. See Mistick, 186 F.3d at 389.
Feldstein’s FCA claim is based on publicly disclosed allegations and Feldstein' was not an original source of those allegations. Therefore, the public disclosure bar of 31 U.S.C. § 3730(e)(4)(A) forecloses his claim.
III.
Because the public disclosure bar applies, we conclude that the District Court lacked jurisdiction over Feldstein’s claim. On that basis, we will affirm the District Court’s judgment. We do not reach the District Court’s alternative holding that Feldstein’s complaint failed to satisfy the heightened pleading requirements of Rule 9(b).
. Schering-Plough acquired Organon in 2007, which was several years after the fraud described in Feldstein's complaint allegedly took place. According to Feldstein, Scher-ing-Plough succeeded to Organon's liabilities and is jointly and severally liable with Orga-non under the FCA.
. The same standard applies to the District Court's dismissal for failure to comply with Rule 9(b), see In re Westinghouse Securities Litigation, 90 F.3d 696, 706 (3d Cir.1996), but as we explain, we need not reach the District Court's dismissal on that ground.
. Several of our cases use the following algebraic representation to explain the public disclosure bar:
If X + Y = Z, Z represents the allegation of fraud and X and Y represent its essential elements. In order to disclose the fraudulent transaction publicly, the combination of X and Y must be revealed, from which readers or listeners may infer Z, i.e., the conclusion that fraud has been committed. To draw an inference of fraud, both a misrepresented [X] and a true [Y] state of facts must be publicly disclosed. So, if either Z (fraud) or both X (misrepresented facts) and Y (true facts) are disclosed by way of a listed source, then a relator is barred from bringing suit under § 3730(e)(4)(A) unless he is an original source.
Atkinson, 473 F.3d at 519 (emphasis added, internal citations and alterations omitted). Our conclusion, stated in these terms, is that the "Z” (fraud) component of the equation was publicly disclosed before Feldstein filed his complaint. Therefore, we need not analyze the X and Y components.
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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/8477393/
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OPINION
PER CURIAM.
André Jacobs has filed an appeal from an order of the United States District for the Western District of Pennsylvania. We must first consider the scope of this appeal; a short background is set forth below to provide a context for the jurisdictional issues.
I.
Jacobs filed a complaint in 2002 alleging that prison officials violated his Eighth Amendment and Due Process rights in conjunction with an incident that occurred in April 2001 while he was confined at a state prison, S.C.I. Pine Grove. On April 20, 2001, Officer Thomas Heck and Nurse Friday were making medication rounds in the restricted housing unit where Jacobs was housed. Jacobs was prescribed a cream which was distributed in a paper medicine cup. The normal practice was to ask the inmate to give up the old (presumably empty) cup in order to get a new one. Medicine was distributed through a slot in the door with a locked flap (the “piehole”). On the day in question, Heck had been asked to inform Jacobs that he would have to give up two medicine cups to get a new one (apparently an officer saw two cups in Jacobs’ cell during an inspection). Jacobs became upset, and said he did not have an additional cup. He had his hand in the open piehole. Heck’s and Jacobs’ versions of what happened next differ.
According to Jacobs, Heck threatened to break his hand if he did not remove it from the piehole. When Jacobs did not remove his hand, Heck hit his hand with a baton. Heck then attempted to close the door to the piehole and slammed Jacobs’ hand about three times while Jacobs was screaming. A nurse came later, gave him an icepack and taped his finger to a splint. Jacobs believed his finger was broken.
According to Heck, at the time of the incident, Jacobs reached his entire arm through the piehole and tugged on the keys on Heck’s belt. Heck swatted Jacobs’ hand away. He told Jacobs three times to remove his hand, and when he did not, he closed the piehole on Jacobs’ hand, but not with much force. He testified that he did not have a baton on that day and that an officer would only carry batons in specific circumstances, not including medicine rounds. Nurse Friday’s report stated that Heck struck Jacobs’ hand with a black object.
The case proceeded with discovery and motions to dismiss. The Court ordered that the complaint be dismissed as to several defendants (see, e.g., docket # 52, 105, 110). The Comb also denied Jacobs’ motions for appointment of counsel (docket # 32, 43, 119). The parties settled the matter, but Jacobs then filed a motion to reopen, which was granted. The case proceeded to trial against defendant Heck, with Jacobs proceeding pro se. The jury found in favor of Heck on March 4, 2005, and the Court entered a judgment on March 7, 2005. Jacobs filed a motion for a new trial on March 11, 2005. On March 14, 2005, Jacobs filed a notice of appeal, which states, in its entirety, “Plaintiff gives notice that he intends to appeal the Dis*746trict Judge’s order of April 19, 2004 (Doc. No. 115) denying appointment of counsel.” This Court stayed the appeal pending disposition of the motion for a new trial, which the District Court denied on March 21, 2006. Jacobs did not appeal the decision denying the motion for a new trial.
II.
In his informal brief,1 Jacobs indicates that he is appealing the following orders: (1) order dated May 28, 2004 denying motion for counsel; (2) order dated January 31, 2006 denying his motion for a new trial; (3) order dated February 15, 2005 denying prison official witnesses; (4) order dated January 15, 2004 dismissing defendants White and Sasway; (5) order dated February 27, 2004 granting summary judgment for defendants Tatum, Boyles, Johnson, Winstead, Buck and Cammeron; and (6) order dated June 3, 2003 granting Dr. Hamad summary judgment. However, as noted, only the order denying Jacobs’ motion for appointment of counsel is specified in his notice of appeal.2 The question here is whether the Court has appellate jurisdiction to review the other orders listed above.
We first consider the order denying Jacobs’ motion for a new trial. While that motion was pending in the District Court, we issued a stay of the appeal. In the order staying the appeal, we informed Jacobs that if he desired “appellate review of the district court’s decision regarding the post-decision motion,” he would be required “to file an amended notice of appeal within the time prescribed by Rule 4 [of the Federal Rules of Appellate Procedure ] measured from the entry of the order disposing of the last outstanding post-decision motion.” Order entered March 31, 2005, see District Court docket # 181. Because Jacobs failed to file an amended notice of appeal, the order denying his motion for a new trial is not properly before us. Fed. R.App. P. 4(a)(4)(B)(ii); Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 665-66 (6th Cir.2008).
We next consider whether we may review the remaining orders that were not specified in the notice of appeal. Pursuant to federal rules, a notice of appeal “must ... designate the judgment, order, or part thereof being appealed.” Fed. RApp. P. 3(c)(1)(B). The Court construes this rule liberally, and will exercise appellate jurisdiction over orders not specified in the notice of appeal where: “(1) there is a connection between the specified and unspecified orders; (2) the intention to appeal the unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full opportunity to brief the issues.” Polonski v. Trump Taj Mahal Assocs., 137 F.3d 139, 144 (3d Cir.1998).
We find that the requisite connection does not exist between the order specified in Jacobs’ notice of appeal and the order dated January 15, 2004 dismissing defendants White and Sasway; the order dated February 27, 2004 granting summary judgment for defendants Tatum, Boyles, Johnson, Winstead, Buck and Cammeron; and the order dated June 3, 2003 granting Dr. Hamad summary judgment. See Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (notice of appeal specifying orders entered in favor *747of three defendants did not bring up for review unspecified earlier order granting summary judgment in favor of two other defendants; noting cases where the requisite connection exists).
Significantly, the order denying Jacobs’ motion for appointment of counsel was non-appealable when entered. It became appealable when the District Court entered judgment in favor of the remaining defendant following the jury trial, as that order finally disposed of the case as to all claims and all parties. See Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.1984). Jacobs’ notice of appeal is thus not like the one in Shea v. Smith, 966 F.2d 127, 129 (3d Cir.1992), which specified the final order in the case (entered in favor of the last two remaining defendants). In Shea and like cases, the Court held that a notice of appeal specifying a final order is sufficient to bring up an unspecified earlier order for review because, relevantly, the earlier order could not have been appealed until the final order was entered. See, e.g., Murray v. Commercial Union Ins. Co., 782 F.2d 432, 434-35 (3d Cir.1986); Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1984). In those cases, the specified order was connected to the unspecified order in that the specified order caused the unspecified order to become appealable. That connection does not exist where, as here, the specified order is not the final order in the case. Cf. Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990) (notice of appeal that specifies order that was interlocutory and non-appealable when entered limits appeal to questions raised by that order).
Returning to the test we enunciated in Polonski, we find apparent Jacobs’ intent to appeal the District Court’s order denying his April 2004 motion for appointment of counsel. We note that this motion sought the assistance of counsel in conducting discovery. We thus find a connection to Jacobs’ claims that problems he had in the course of discovery (following this denial) were due to the District Court’s failure to appoint counsel. We also liberally construe the notice, which was filed after Jacobs lost at trial, to assert that the outcome of the trial would have been different if counsel had been appointed. Our decision to review these issues does not prejudice appellee Heck, as he has chosen to respond to all the issues that Jacobs briefed.3 We now proceed to discuss the merits of the properly raised issues.
III.
A district court’s decision to deny counsel to an indigent litigant is reviewable by a court of appeals for abuse of discretion. Tabron v. Grace, 6 F.3d 147, 158 (3d Cir.1993). In determining whether appointment of counsel is warranted, the District Court must first determine whether the litigant’s claim has arguable merit in fact or law. Id. at 155. If this threshold is met, then a court must consider the litigant’s ability to present the case, taking into account the litigant’s education, literacy, prior work experience, prior litigation experience, and ability to understand English. Id. at 156. A court also must evaluate the complexity of the legal issues in the case, the degree to which factual investigation will be necessary (and the litigant’s ability to pursue such investigation), the likelihood that the case will turn on credibility determinations, the need for expert testimony in the case, and litigant’s ability to retain counsel. Id. at 156-57.
As Jacobs’ claims against Heck proceeded to trial, he can meet the thresh*748old showing of arguable merit. Jacobs was without funds to obtain counsel, and it was likely that his case would turn on credibility determinations. However, Jacobs demonstrated through his filings in the District Court that he is articulate and able to understand English. His claims were not particularly complex. Furthermore, his case was largely the retelling of events that happened in his presence, so, to that extent, he did not need to engage in an extensive investigation. He did not require an expert witness. Accordingly, although some factors weighed in favor of appointing counsel, the District Court did not abuse its discretion in denying Jacobs’ motion. We now turn to Jacobs’ claims that discovery and/or trial was unfair because counsel was not appointed.
IV.
A.Internal Investigation Report
Jacobs complains that his trial was not fair, because he had asked defendants in discovery to produce a report of an internal investigation into Jacobs’ claim that Heck had used excessive force against him (“the report”), but defendants insisted no such report existed. Then, however, Heck’s attorney produced a copy of the report at the end of the first day of trial, and Jacobs was allowed to review it. First, we note that it is not clear that the report would have been produced earlier if Jacobs had been represented by counsel. Second, even though the timing was not optimal, we note that the District Court gave Jacobs the opportunity to review the document, and he was able to use it to examine Heck in the trial. T.T. (March 1, 2005) (Doc. 194), 40-45. Third, as the report concluded that Heck was not guilty of abuse, it was not particularly helpful to Jacobs. We do not believe that the trial was unfair based on Jacobs’ late receipt of the report.
B. Heck’s inconsistent defense
Jacobs argues that the trial was not fair because in discovery Heck stated that any injury Jacobs sustained during the April 2001 incident was due to an accident, but at trial Heck admitted that he used deliberate action against Jacobs (“swatting” his hand). Jacobs also notes that in interrogatory responses Heck answered that he would have been authorized to carry a baton on April 20, 2001, but at trial he responded that given the circumstances of the incident, he would not have been authorized to have a baton with him at the time. As Heck notes in his appellate brief, Jacobs ably examined Heck about these inconsistencies at trial. See, e.g., T.T. (Feb. 28, 2005) (Doc. 193), 29, 36; T.T. (March 3, 2005) (Doc. 196), 58-59. The fact that Jacobs was ultimately unsuccessful does not mean that the trial was unfair.
C. Right to subpoena witnesses at public expense
Federal courts are not authorized to waive or pay witness fees for indigent litigants. Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir.1993) (per curiam); cf. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (no statutory authority for payment of expert witness fees in civil litigation). We therefore find that the District Court did not err in holding that Jacobs must pay the fees and costs for any prison official he wished to subpoena for trial.
D. General claim that Jacobs was disadvantaged by proceeding pro se at trial
Jacobs claims he “encountered difficulties in complying with the rules of court.” Jacobs claims that he did not know when opposing counsel was asking leading question, and he did not have the knowledge and skill to properly cross-examine defendants’ expert witness. We have examined *749the trial transcript, and we find that Jacobs was not prejudiced by his pro se status. The Court admonished defendants’ counsel not to ask leading questions, and was very careful to assure that counsel for the defendants was not able to ask leading questions simply because Jacobs failed to object. See, e.g., T.T. (March 1, 2005) (Doc. 194) 166-70. Jacobs also complains that he was not able to properly cross-examine the “expert witness” (the nurse who was making rounds with Heck on the day of the incident); however, Jacobs engaged in extensive cross-examination of the witness, T.T. (March 1, 2005) (Doc. 194) 178-208, and brought out inconsistencies between her testimony and written reports, see, e.g., T.T. (March 1, 2005) (Doc. 194) 198-99. Any difficulties Jacobs may have had were not so extreme as to render the trial unfair.4
V.
After reviewing the record, including the trial transcripts, we conclude that Jacobs had a fair opportunity to present his claims against Heck. The District Court did not abuse its discretion in denying Jacobs’ motion for appointment of counsel. We therefore affirm the judgment of the District Court.
. This Court asked Jacobs to file a Statement of Issues to be Presented on Appeal, in order to determine whether appointment of counsel would be useful. All of the issues noted in the Statement are also included in his brief.
. Actually, the order designated in the notice of appeal is the order entered by the Magistrate Judge on April 26, 2004 (dated April 19, 2004). Jacobs appealed this order to the District Court Judge, who denied the appeal in the order dated May 28, 2004.
. We need not consider prejudice to the other appellees, as the issues we consider involve proceedings and decisions taking place after those parties were dismissed. As noted, Jacobs has not properly appealed the orders dismissing those parties in the District Court.
. In his brief, Jacobs refers us to pages 174-76 of the second day of trial. In that portion of the trial, Jacobs successfully objected to a question that Heck's counsel asked the nurse witness, but thought the Judge was asking for the basis of his objection when she was actually asking Heck’s attorney to lay a foundation for the line of questioning. The Judge explained what she was asking, and we do not believe Jacobs was prejudiced in any way.
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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/8477397/
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OPINION OF THE COURT
ALDISERT, Circuit Judge.
The lead petitioner Shermamat Abdullo-zoda, a native and citizen of Uzbekistan, of Iranian descent, seeks a review for himself and members of his family of a decision of the Board of Immigration appeals (“BIA” or “Board”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the ground that the petitioners did not meet their burden of showing past harm rising to the level of persecution or a well-founded fear of future persecution. They also contend that the BIA abused its discretion by declining to equitably toll the filing deadline for petitioners’ motion to reopen based on a Human Rights Watch letter. Finally, petitioners argue that indiscernible testimony in the record of the IJ’s proceedings prevented the Board from conducting a meaningful review. We have jurisdiction under 8 U.S.C. § 1252. We will deny the petition.
I.
An alien who is in violation of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., is subject to removal from the United States. However, the Attorney General in the exercise of discretion may grant relief from removal in the form of asylum to an alien who proves that he or she is a refugee. An alien is a refugee if he or she is unable or unwilling to return to his or her country for the so-called statutory grounds “of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or *758political opinion[.]” 8 U.S.C. § 1101(a)(42)(A). The burden of proof is on the alien to establish that he or she is a refugee. 8 U.S.C. § 1158(b)(l)(B)(i).
An application for asylum in removal proceedings is also considered to be a request for withholding of removal. To succeed in attaining withholding of removal, the alien in the proceedings bears the burden of establishing that he or she would “more likely than not” suffer persecution in a country of removal on account of one of the enumerated statutory grounds. Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir.2005). This requires an alien to show a “clear probability” of persecution. INS v. Stevic, 467 U.S. 407, 429, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Withholding of removal is also available on separate grounds under the CAT for any person to a country in which there are substantial grounds for believing that the person would be in danger of being subjected to torture. The burden is on the alien “to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Protection under the CAT differs from asylum or withholding of removal because it does not require a showing that the mistreatment was or would be on account of any particular characteristic of the victim such as race, religion, nationality, membership in a particular social group, or political opinion.
We now address the facts with these legal precepts in mind.
II.
Abdullozoda testified at the hearing before the Immigration Judge (“IJ” or “judge”) that he was called names in elementary school and a student once burned him. While serving his military duty, he was called “black face” and beaten once because of his Iranian ancestry, and was dishonorably discharged after six months of service. In 1985, Abdullozoda’s college application was denied. He did not pass the entrance examination, and he believes that he failed due to his nationality. Ab-dullozoda was admitted to college in 1987. He began working for the Ministry of Finance in 1996. In the course of auditing investment projects, he learned that his supervisor was accepting bribes for her approval of projects. He complained, but other Ministry workers rejected his concerns and, according to the Petitioner, insulted his Iranian ancestry.
Abdullozoda testified that in 2000 he returned home after a visit to the United States and two men attacked him. Abdul-lozoda also testified that they threatened him and said, “Stop putting your nose into other people’s business — you’re an Arab!” He testified that the men stabbed him in the hand, that he was rushed to the hospital for surgery, and that his wife went to the police to report the incident, but they failed to find or arrest the perpetrators. Abdullozoda believes that the police did not find them because of his nationality. A letter from the police states that the investigation was closed due to a lack of witnesses. In December 2002, Abdullozo-da received a summons to appear in the District Department of Internal Affairs where he was ultimately questioned about a Muslim extremist organization, held overnight, and then released. Abdullozoda testified that in the Fall of 2003 his children had problems in school, culminating with his son Sardor coming home with bruises after fighting with several children who accused his family of being terrorists.
In February 2004, a person followed Ab-dullozoda after work and attacked him on the street. The person called him an Arab and broke his nose. Petitioner filed a police complaint after he went to the hospital and he testified that the police took no further action. In May 2004, he and his *759family returned home to find that their home was burglarized. The intruders left a sign stating, “Arab, get out of Uzbekistan! You are a traitor!” The sign warned Abdullozoda to “keep [his] mouth shut!” The police responded to his call, but a day later informed Abdullozoda in writing that they would not investigate the case due to a lack of witnesses and lack of harm to anyone. Abdullozoda stated that when the police came to his home, they wanted to know whether he might be a terrorist. In June 2004, he came to the United States and applied for asylum. His family had already arrived for an academic competition for the children. Abdullozoda was subsequently fired from his job for leaving it. In May 2005, Abdullozoda’s brother was allegedly murdered. Abdullozoda testified that the perpetrators were never found. We now turn to the evaluation of his testimony by the I J.
III.
The IJ found Abdullozoda and his wife credible, but concluded that the discrimination Abdullozoda and his wife suffered in their schooling did not constitute past persecution, and in any event, certain events to which he testified were too remote in time to support a fear of future persecution. The IJ noted that the incident involving their son at school was an isolated event, and further found that Abdullozo-da’s brief detention in 2002 did not constitute an act of persecution, as police made clear that they were simply questioning his involvement in any terrorist organization, and they did not harm him.
The IJ recognized that whistle blowers who expose government corruption might be able to establish asylum eligibility and discussed several cases where aliens publicized their concerns and were then deprived of employment, liberty and safety. The judge stated that Abdullozoda only complained within his workplace, and when he was threatened to stop complaining, he did so, and there was no evidence that Abdullozoda exposed the corruption, nor that he was fired or demoted. The judge also noted that Abdullozoda could not connect his physical assaults to his workplace or to the government. The attacks were not only committed by strangers, but too remote in time to be connected with later events. The IJ found it possible that the crimes were random acts of nationalist violence, and determined that Abdullozoda did not adequately explain why his coworkers would have turned into “thugs” to threaten him instead of simply having him discharged. The judge also determined that there was no evidence of a pattern or practice of persecution against Iranians, and concluded that Abdullozoda had not proven that he was persecuted by the authorities on this basis.
The IJ also noted that Abdullozoda did not attempt to move or look for a new job. Rather, he retained his position in public employment, took vacations paid in part by his employers, and did not seek asylum when he first came to the United States. The judge noted that there was no evidence showing that the government would consider Abdullozoda a minority or encourage the harm that took place. To the contrary, the government issued passports recognizing the family as Uzbekistani nationals, and did not appear to believe that he was connected with a banned political party or part of any Islamist movement. Although ultimately the crimes against Ab-dullozoda were not solved due to lack of evidence, the police both responded and opened files on the crimes. Significantly, the judge noted that Abdullozoda did not tell the police whom he suspected was responsible for the crimes, and the police investigated the incidents that occurred and provided reasonable explanations for closing the cases. Finally, the IJ stated that there was not enough information to connect Abdullozoda to the murder of his *760brother in 2005, more than a year after Abdullozoda left Uzbekistan. An unsuccessful appeal to the BIA followed.
IV.
Abdullozoda contends in his petition for review that documentation from the Human Rights Watch constituted new evidence establishing a change in Uzbekistan policy. He states that Uzbekistan took a confrontational position with the United States and started to persecute formerly successful pro-Western politicians like himself. The Human Rights Watch letter describes growing anti-Western sentiment over the past four years, particularly since 2005, and the Uzbekistan government’s attempts to locate people with ties to Western governments. The letter from the Human Rights Watch opines that if Abdul-lozoda’s story is true, he would face a high risk of persecution on account of his reformist views.
V.
In the appeal to the BIA, the petitioners were unsuccessful on the merits. They then filed a motion for reconsideration, reopening, and reissuance of the BIA’s decision, alleging ineffective assistance of counsel because Attorney Sirota failed to notify them of the Board’s dismissal of appeal and failed to contact Human Rights Watch in the initial litigation. The Human Rights Watch letter was submitted with the motion. The Board denied the motion for reconsideration because it was untimely and did not allege any error of law or fact in its prior decision. The motion for reissuance was treated as a motion to reopen and was granted with respect to the ineffective assistance claim, for failure to advise petitioners of the Board’s decision. The Board vacated and reissued its original decision. The Board did not equitably toll the deadline with respect to the Human Rights Watch letter because, according to the Board, it did not contain new information, as demonstrated by Abdullo-zoda’s previous argument that counsel should have offered the information at the hearing before the IJ. The Board further found that petitioners failed to comply with the requirements of Matter of Lozada by not raising the issue in their bar complaint and failing to show resultant prejudice. 19 I. & N. Dec. 637 (BIA 1988); See Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir.2001) (“We conclude that the Lozada requirements are a reasonable exercise of the Boai'd’s discretion!)]”).
VI.
We review an agency’s findings regarding asylum for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B) (“administrative findings of facts are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Because the Board adopted the findings of the IJ, we have jurisdiction to review both decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). Petitioners failed to establish past persecution and therefore are not entitled to a presumption that they harbored a well-founded fear of future persecution in Uzbekistan. To show a well-founded fear of persecution an alien must demonstrate that his or her fear is both genuine and objectively reasonable. We conclude that substantial evidence supports the IJ and BIA’s conclusion that petitioners failed to show eligibility for asylum based either on a pattern or practice of persecution or on an individualized showing of a well-founded fear. Accordingly, it follows that petitioners did not meet the higher burden of proof for withholding of removal. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir.2004).
When an alien claims that a deficient record prevents the Board from conducting meaningful review or his or her appeal, the alien must show how the alleged defi*761ciencies in the record were prejudicial. Bhiski v. Ashcroft, 373 F.3d 363, 370 (3d Cir.2004). Here petitioners do not identify a single incident of indiscernible testimony that might have established their eligibility for asylum, withholding of removal or the CAT protection. They have therefore failed to show that the deficiencies in the record caused them prejudice.
Motions to reopen are “disfavored” because of the threat they pose to finality. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). “This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Id. We consider questions of law de novo, but we otherwise review an order denying a motion to reopen under a highly deferential abuse of discretion standard. See Fadiga v. Att’y Gen., 488 F.3d 142, 154 (3d Cir.2007); Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The BIA’s discretionary decision will not be disturbed unless it is arbitrary, irrational or contrary to law. See Guo, 386 F.3d at 562. In the interest of finality, a motion to reopen generally “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(e)(7)(C)(i). In this case, Abdullozoda filed his motion to reopen five months after the Board’s decision and over two months after the 90-day deadline. Under some circumstances, equitable tolling is available for a motion to reopen. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005). Petitioners alleged ineffective assistance of counsel, which can serve as a basis for equitable tolling, if substantiated, and if accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). However, to rely on an ineffective assistance of counsel claim to toll a time limit, the BIA requires an alien to comply with the procedural requirements of Matter of Lozada, a requirement we have held to be reasonable. Lu, 259 F.3d at 129. Petitioners did not comply with the Lozada requirements and did not show that Attorney Sirota’s failure to contact Human Rights Watch amounted to ineffective assistance of counsel, causing prejudice. We agree with the Board’s conclusion that petitioners failed to show “a ‘reasonable likelihood’ that the result would have been different” if the Human Rights Watch letter had “been offered at the hearing.” (BIA Decision, June 26, 2008 (citing Fadiga, 488 F.3d at 159).) Furthermore, petitioners did not exercise the due diligence necessary to win equitable tolling. See Borges, 402 F.3d at 407. Petitioners have not shown that the BIA’s decision was arbitrary, irrational or contrary to law.
We have considered all the contentions raised by the parties and conclude that no further discussion is necessary. The petition for review will be denied.
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01-04-2023
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11-05-2022
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AMBRO, Circuit Judge,
dissenting.
When an alien claims that a deficient record riddled with “indiscernible” notations prevents the BIA from conducting a meaningful review of his or her appeal, the relevant question is whether the “indiscernible s” occur at a “critical juncture” in the transcript. McLeod v. INS, 802 F.2d 89, 95 (3d Cir.1986). “Transcript deficiencies reflect adversely upon the integrity of the administrative process, and upon the possibility of meaningful review during the critical appellate stage.” Id.
The transcript provided for our review is unfathomably poor; by my count there are 184 instances of “indiscernible” in only 13 pages of expert testimony alone, and the remainder of the transcript is riddled with other instances. Over 20 years ago we noted that we were “appalled by such faulty records, and we do not take petition*762er’s objection lightly.” Id. Twenty years later, it seems that the Government has made little progress toward fulfilling its statutory duty to provide “a complete record ... of all testimony and evidence produced at the proceeding.” 8 U.S.C. § 1229a(b)(4)(C); see 8 C.F.R. § 1240.9 (“The hearing before the immigration judge ... shall be recorded verbatim.”).
The IJ made a number of factual conclusions based, in part, on the expert. In particular, the IJ noted that “[the expert] did not conclude that Respondents would be subjected to persecution and also did not conclude that Respondents are members of a group subject to a pattern or practice of persecution in Uzbekistan.” App. 140 (IJ Decision, Mar. 27, 2006). The IJ based her analysis on this fact, noting that
[w]ith regard to ethnicity or nationality of the Respondents as Iranian, [the expert] does not conclude that there exists a pattern or practice of persecution in Uzbekistan against Iranian[] nationals. The written evidence concerning country conditions also does not contain such a conclusion. Therefore, Respondents are obliged to prove an individualized claim to asylum to prevail.
App. 149. Thus, the IJ’s evaluation of the expert testimony was a critical factor in her factual assessment of whether the Ab-dullozodas would face persecution on their return to Uzbekistan.
The transcript of the expert’s testimony is practically incomprehensible. Although the expert was a live witness, the transcript nonetheless contains an average of over 14 instances of “indiscernible” per page. In particular, the expert’s conclusions, as transcribed, are riddled with “indiscernible” notations. This is a portion of the testimony, as transcribed:
Q. And, doctor, would you please tell the Court how are (indiscernible) are treated in Uzbekistan?
A. After the break of the Soviet Union when (Indiscernible) Uzbekistan (Indiscernible) how to (Indiscernible) and actually a few choices, or four choices, (Indiscernible). Choice number one was democracy, (Indiscernible) choice number two was (Indiscernible) and choice number three nationalism, choice number four (Indiscernible) religious state. He went through the path of nationalism and nationalism became like major (Indiscernible), though this point (Indiscernible) were integrated in society, and (Indiscernible) suffered discrimination, persecution in (indiscernible). It lead to enormous migration out of the country by (Indiscernible), none of the populations (Indiscernible), ethnic Russian, which comprised with biggest, I would say one of the biggest ethnic groups in Uzbekistan (Indiscernible) their number, a number of [J]ews got (Indiscernible) five times. Okay, I would say that other groups with some perception are (Indiscernible) and these people shows the position of (Indiscernible) ethnic groups which played a very important role in being (Indiscernible), just (Indiscernible), and after the (Indiscernible). First of all, (Indiscernible) the majority of (indiscernible) homes (Indiscernible). The (Indiscernible) agencies were (indiscernible) from (Indiscernible), the Russians, and it (Indiscernible) were (Indiscernible) nationally (Indiscernible) it was (Indiscernible). And, since the time the Government followed the policy of weeding out non (indiscernible).
Q. Okay, and what is (indiscernible)?
A. The word (indiscernible) is Russian, which is very difficult to translate, because (Indiscernible) writing *763down, but (Indiscernible) translation. (indiscernible) means (Indiscernible) belief, again, (indiscernible) this idea from the Soviet Union, historically the (Indiscernible) and (Indiscernible) special registration which is mandatory at the time, and (Indiscernible) into the country which indicated (Indiscernible), and this box (Indiscernible) and the (Indiscernible) according to (Indiscernible). The (Indiscernible) by the special (Indiscernible) and by the officers or by the officials who support (indiscernible), or regional administrative, original (indiscernible).
Q. Does it exist the name Uzbekistan?
A. Yes, it exists, (Indiscernible).
App. 180-82 (IJ Proceedings Tr. 24:22-26:13). It is difficult to follow this portion of the transcript in which the expert attempts to describe the history of ethnic tension in Uzbekistan.
This sets up the next portion of his testimony — the attempt to describe what specifically would happen to the Abdullozo-das if they were returned to Uzbekistan:
Q. And in accordance with local rules what does a person living in the country have to do upon his arrival back to Uzbekistan?
A. When the person comes back (Indiscernible) at a time, he’ll (Indiscernible), or (Indiscernible), this point the person had to report to (Indiscernible) that he or she have arrived to (Indiscernible), or he has to take care of that and to do (Indiscernible), arrange (Indiscernible).
Q. Okay, and sir, in your opinion what can happen to the respondent if he returns to Uzbekistan?
A. (Indiscernible) this gentleman can experience a lot of (Indiscernible)—
JUDGE TO MR. KOTLER [the expert witness]
Q. You read the asylum application?
A. Yes, because (Indiscernible) to get (Indiscernible).
Q. Well, I just needed to know whether you read it Doctor Kotler, that was all.
A. I’m sorry.
Q. Go ahead.
A. And, (Indiscernible) understand the full situation and to this point (Indiscernible) problems with the authorities (Indiscernible) he can face persecution again and his (Indiscernible) would be known to the authorities because he must go to the police and report himself.
App. 182-183 (IJ Proceedings Tr. 26:14-27:13). Unlike the transcript in McLeod, which involved 96 instances of “indiscernible” occurring largely “within colloquies between the judge and counsel that [did] not bear on the legal or factual issues of the case,” 802 F.2d at 95, the testimony in our case occurred during the testimony of an expert witness, and “the import of many of the omissions” is not “detectable from the context of the dialogue,” id. In particular, the expert’s conclusion is indecipherable and, unlike colloquies between the judge and counsel, it is undoubtedly a critical juncture in the transcript. Id.
In our case, the BIA “note[d] that the transcript contains numerous ‘indiscerni-bles,’ particularly during the testimony of the respondents’ expert witness.” App. 99 (BIA Decision, July 30, 2007). It found the expert’s testimony to be “ ‘too general and broad-brushed’ to support the respondents’ requests for relief.” Id. (citing Ambartsoumian v. Ashcroft, 388 F.3d 85, 88 (3d Cir.2004)). It further concluded that “the transcript deficiencies do not prevent us from determining that the Immigration Judge’s findings are not clearly erroneous.” Id.
Given the embarrassingly poor quality of the transcript provided to the BIA, I am at *764a loss to understand how the BIA could have discharged in earnest its duty to review the Id’s factual findings for clear error on the record in this case. See 8 C.F.R. § 1003.1(d)(3)(i). I simply cannot tell from the transcript whether the IJ made a clearly erroneous factual finding— indeed, from the transcript it is difficult to divine the expert’s conclusion on the persecution question.
While I pass no judgment on the ultimate conclusion of the IJ or the BIA, I cannot conclude that the BIA discharged its duty in this case. I would grant the petition for review and remand to the BIA with instructions either to obtain a clear copy of the transcript or, if no such copy is obtainable, remand this case to the IJ for a new hearing. I thus respectfully dissent.
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OPINION
CHAGARES, Circuit Judge.
National Grange Mutual Insurance Company (“National Grange”) filed a declaratory judgement action concerning insurance coverage for a motor vehicle accident, and Mutual Benefit Insurance Company (“Mutual”) filed a counterclaim for declaratory judgment. Both insurers filed cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. requesting judgment in their favor on their respective complaints. The District Court granted summary judgment in favor of National Grange and denied Mutual’s cross-motion. For the reasons set forth below, this Court will affirm.
I.
Because we write solely for the benefit of the parties, we recite only the essential facts. Kebberly, Inc. provided landscaping, lawn services, excavating, and snow removal services. Michele Kebberly was the sole shareholder, as well as a salaried employee, of Kebberly, Inc. In 2003, a 2004 Chevrolet Tahoe (“Tahoe”) was purchased primarily for use by Kebberly, Inc. and registered to Kebberly, Inc. d/b/a Michele Kebberly and John T. Kebberly.1 The Tahoe was added to the list of covered vehicles in the commercial automobile insurance policy that Kebberly, Inc. maintained with National Grange.
In late 2004, a 2005 Chevrolet Duramax was purchased for business-related use, and Ms. Kebberly began using the Tahoe primarily as a personal vehicle. In January 2005, at Ms. Kebberly’s request, the Tahoe was removed from the National Grange policy’s list of covered vehicles and placed on a personal automobile insurance policy issued by Mutual.
On May 25, 2007, Ms. Kebberly did not use the Tahoe at work. After work, she drove the Tahoe to Alibi’s, a tavern, to meet a friend who was also a Kebberly, Inc. customer. On the way to the tavern, Ms. Kebberly drove by Kebberly, Inc.’s job sites for the following day. At some point, Ms. Kebberly left Alibi’s and drove to another tavern, Bender’s Pit Stop, to spend time with a terminally ill friend. While driving home from Bender’s Pit Stop in the Tahoe, Ms. Kebberly was involved in a motor vehicle accident in which Donald Burton and Faith Burton were seriously injured. The Burtons filed suit against Ms. Kebberly in the Court of Common Pleas of Fayette County, Pennsylvania. Mutual retained counsel to defend Ms. Kebberly in the state court action.
*767On February 29, 2008, National Grange filed a complaint for declaratory judgment against Ms. Kebberly, Kebberly, Inc., Donald Burton, and Faith Burton seeking a declaration that it did not have a duty to defend or indemnify Ms. Kebberly in the underlying state court action. On May 20, 2008, the District Court granted Mutual’s motion to intervene in the action.
The state court action was settled through private mediation on June 6, 2008. Mutual agreed to pay an undisclosed sum of money to the Burtons in exchange for a full and final release of Ms. Kebberly. On June 13, 2008, Mutual filed its own declaratory judgment action seeking a declaration that the National Grange liability coverage was the primary insurance policy and that National Grange was required to reimburse Mutual for the costs and expenses incurred in defending and settling the state court action.2
Both National Grange and Mutual filed motions for summary judgment. The District Court granted National Grange’s motion and denied Mutual’s motion. In so doing, the District Court determined that Ms. Kebberly did not meet the National Grange policy’s definition of “Who Is An Insured” because she was an employee of Kebberly, Inc. and an owner of the Tahoe. Mutual timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). We will affirm if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c)(2). Where a contract is “subject to only one reasonable interpretation” it is appropriate for a court to determine its meaning as a matter of law. Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 163-64 (3d Cir.2001); accord Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 521 (3d Cir.1999) (“When the meaning of contract language is at issue, we affirm a grant of summary judgment only if the contract language is unambiguous and the moving party is entitled to judgment as a matter of law.”).
III.
Mutual argues that the District Court erred by granting summary judgment in favor of National Grange because the National Grange exclusion does not apply when the employee co-owns the automobile with the insured employer. In the alternative, Mutual argues that its policy and the National Grange policy cover Ms. Keb-berly on a co-primary basis and that under the “other insurance” clauses of both policies, National Grange is proportionately liable for the defense and settlement costs.
The National Grange policy states in relevant part:
A. Coverage
We will pay all sums an “insured”' legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”.
1. Who Is An Insured
The following are “insureds”:
*768a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.
Supplemental Appendix (“SA”) 17. Thus, the National Grange policy applies if the Tahoe is a “covered ‘auto’ ” and Ms. Keb-berly personally meets the criteria under “Who Is An Insured.”
The Declarations page of the National Grange policy lists a “1” under the “Covered Autos” column next to “Liability Insurance.” SA 11. This indicates that “Any ‘Auto’ ” is covered. SA 16. Thus, despite the fact that the Tahoe was removed from the schedule of covered vehicles before the accident, the National Grange policy still provides coverage if Ms. Kebberly falls within the definition of “Who Is An Insured.”
The District Court determined that because Ms. Kebberly was an employee of Kebberly, Inc. and an owner of the Tahoe at the time of the motor vehicle accident, the exception in subsection (b)(2) of “Who Is An Insured” applies and National Grange has no obligation to indemnify Mutual. Mutual argues that because Kebberly, Inc. also owned the vehicle, the policy language does not exclude Ms. Kebberly from coverage.
Assuming without deciding that Ms. Kebberly was acting with Kebberly, Inc.’s permission the night of the accident as required by subsection (b), she is excluded from coverage based on the fact that she owned the Tahoe. It is undisputed that Ms. Kebberly was an employee of Kebberly, Inc. when the accident occurred. It is also undisputed that Ms. Kebberly was listed on the Tahoe’s title. Under Pennsylvania law, “a titleholder is an owner of a vehicle.” Cicconi Auto Body v. Nationwide Ins. Co., 904 A.2d 933, 937 (Pa.Super.Ct.2006). The fact that there might be other owners in addition to Ms. Kebberly does not abrogate the fact that she remains an owner under Pennsylvania law. See id.
The plain language of the exclusion does not require sole ownership. It simply excepts the employee if the automobile “is owned by that ‘employee’ or a member of his or her household.” There is no genuine issue of fact that the Tahoe was “owned” by Ms. Kebberly, even if others had ownership rights to the same vehicle. Thus, Ms. Kebberly does not meet the definition of “Who Is An Insured” and National Grange has no duty to defend or indemnify Ms. Kebberly in the state court action.3
Because this Court concludes that the National Grange policy does not cover Ms. Kebberly with respect to this motor vehicle accident, there is no need to reach Mutual’s alternative argument that both policies provide primary coverage and the insurers are proportionately liable under the “other insurance” clauses in the policies.
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
. John T. Kebberly is Ms. Kebberly’s father.
. After the state court action settled, Ms. Keb-berly, Kebberly, Inc., and the Burtons were no longer interested parties in this action. Accordingly, the case was terminated with respect to those defendants.
. Mutual does not argue that subsection (a), which insures ‘'[Kebberly, Inc.] for any covered ‘auto,’ " provides coverage for Ms. Keb-berly's accident. Rather, Mutual argues that Ms. Kebberly was an employee with permission to drive a "covered 'auto' " under subsection (b). See Mutual Br. 15; Mutual Reply Br. 5. Accordingly, this Court need not decide whether Kebberly, Inc. was using the Tahoe within the meaning of subsection (a).
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OPINION
JONES, District Judge.
Gary Lee Myers pled guilty to possession of child pornography and was sentenced to 51 months’ imprisonment, to be followed by an 8-year term of supervised release. Myers did not take a direct appeal of his conviction and sentence. After retaining new counsel, Myers filed a motion pursuant to 28 U.S.C. § 2255, alleging that he had received ineffective assistance of counsel at sentencing. The District Court denied Myers’ motion, and he now appeals that denial. For the reasons that follow, we affirm.1
I.
In 2008, a Pennsylvania State Trooper assigned to the Bureau of Criminal Investigation, Computer Crime Division, conducted an investigation into the Internet sharing of child pornography. Following that investigation, a search warrant for *770Myers’ home was obtained and executed. Retrieved from Myers’ home was child pornography contained on Myers’ computer, hard drive, and CDs. The material contained graphic images of minors engaged in sexual acts, including minors under the age of 12 and materials depicting the penetration of minors.
In April 2008, Myers was charged in a one-count Indictment with Possession of Material Depicting the Sexual Exploitation of a Minor, in violation of 18 U.S.C. § 2252(a)(4)(B). Myers was represented by Ronald W. Hayward, Esq. at the District Court proceedings, including Myers’ plea and sentencing. On November 14, 2008, Myers pleaded guilty to Count One. No formal plea agreement was entered.
Utilizing the 2008 edition of the Sentencing Guidelines, the probation officer calculated Myers’ offense level to be 28 and his criminal history category (“CHC”) to be level I, yielding an advisory guideline range of 78 to 97 months. After argument by Myers’ attorney at sentencing, the District Court sustained Myers’ objection to the 4-point enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), for possession of material portraying sadistic conduct, masochistic conduct or other depictions of violence, specifically materials depicting the penetration of a minor. Accordingly, Myers’ offense level was set at 24 and his CHC was I, yielding a guideline range of 51 to 63 months. Before passing sentence on March 9, 2009, the District Court reviewed the factors set forth in 18 U.S.C. § 3553(a) as they applied to Myers, stating:
I note that this is the defendant’s first criminal conviction. And I also [ac-Jknowledge his stable upbringing and gainful employment. While commendable, these facts, however, do not reflect the serious and disturbing nature of his offense, nor the large number of sexually explicit images attributable to the defendant. This conduct warrants a significant period of incarceration.
The District Court thereafter sentenced Myers to 51 months incarceration, to be followed by an 8-year term of supervised release. Myers did not appeal.
After sentencing, Myers retained new counsel, Attorney Stanton D. Levenson, and on April 3, 2009 filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Myers argued that he had been denied his Sixth Amendment right to effective assistance of counsel as the result of Attorney Hayward’s failure to argue that the guideline under which he was sentenced, U.S.S.G. § 2G2.4, is seriously flawed and should not be followed. The District Court subsequently denied Myers’ motion, and this appeal followed.
II.
We exercise plenary review over the legal component of ineffective assistance of counsel. See United States v. Smack, 347 F.3d 533, 534 (3d Cir.2003). “The underlying facts are reviewed for clear error, and are subject to independent judgment ‘on whether the facts thus found constitute constitutionally ineffective assistance of counsel.’” United States v. Baird, 218 F.3d 221, 225 (3d Cir.2000) (quoting Gov’t of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1430-31 (3d Cir.1996)).
Strickland v. Washington supplies the standard for addressing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.
*771466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, the defendant must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.
III.
As aforestated, Myers argues that he was denied his Sixth Amendment right to effective assistance of counsel by Attorney Hayward’s failure to argue that the guideline under which he was sentenced, U.S.S.G. § 2G2.4, is seriously flawed and should not be followed. Myers relies on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), for the proposition that courts are permitted to discount various guidelines for lack of empirical support. Myers thus extrapolates that he was denied the effective assistance of counsel based on his counsel’s failure to argue at sentencing that the District Court should reject Section 2G2.4 for lack of empirical support.
Our first step in analyzing Myers’ novel ineffective assistance claim is to determine whether counsel’s failure to make such an argument constituted deficient performance. To undertake this analysis, we must first discuss Kimbrough and its potential import here. In Kimbrough, the Supreme Court found that the guidelines for crack cocaine were not based on the Sentencing Commission’s independent “empirical data and national experience,” but were largely fashioned by Congressional legislation alone. 128 S.Ct. at 575. Based on this reasoning, the Supreme Court held that “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence ‘greater than necessary’ to achieve 3558(a)’s purposes.” Id. Kimbrough was then clarified by the Supreme Court in Spears v. United States, wherein the Court held “that district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” — U.S. —, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009). Thereafter, in United States v. Prophet, 335 Fed.Appx. 250 (2009), we considered Kimbrough’s effect on the child pornography sentencing Guidelines and held that “even if it were true that district courts, based on the reasoning of Kimbrough, may impose below-guideline sentences for child pornography offenses solely based upon policy disagreements with those guidelines, it does not follow that they must do so.” Id. at 252 (emphasis in original). However, Prophet was not a precedential opinion, and to date this Court has not rendered any precedential opinions pertaining to Kimbrough’s, application to the child pornography guidelines.2
Myers is endeavoring to have his counsel’s performance declared ineffective based upon a failure to raise a creative argument that analogizes the child pornography sentencing guidelines with the crack/powder cocaine guidelines. To be sure, Prophet spoke at least in part to the point Myers raises, but as noted, it was a not precedential opinion. Although not specifically articulated by Myers, he essentially seeks to have his counsel declared ineffective for the failure to assert an arguably relevant point contained within a not precedential opinion of this Court. We *772decline to hold counsel to such a standard, which is far beyond what Strickland mandates. Based on the current status of the jurisprudence in this Circuit, we simply cannot find that Myers’ counsel’s performance was deficient based upon his failure to argue that § 2G2.4 should be rejected or discounted for lacking empirical support.
Further, even if we did hold counsel to what we believe is an unreasonable standard, Myers was not prejudiced. First, the District Court sustained Myers’ objection to the 4-point enhancement pursuant to U.S.S.G. § 2G2.2(b)(4), resulting in a significantly lower advisory guideline range. Further, the District Court outlined the § 3553(a) factors in significant detail when passing sentence, noting in particular the seriousness of the offense conduct. The District Court then sentenced Myers at the very bottom end of the guidelines, after concluding that nothing in his background warranted a sentence outside of that range.
In sum, we conclude that Myers has not established that his counsel was ineffective based on the Strickland standard. Accordingly, we affirm the District Court’s denial of his Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 2253(a). This Court exercises plenary review over the legal component of an ineffective-assistance-of-counsel claim, and the underlying facts are reviewed for clear error. United States v. Smack, 347 F.3d 533, 537 (3d Cir.2003).
. Notably, Prophet addresses the guideline in the context of a direct appeal, not an ineffective assistance claim.
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OPINION
PER CURIAM.
Appellant Gwendolyn Jackson appeals her conviction and sentence for harassment. For the reasons stated below, we affirm.1
I.
In 2004, Jackson, at the time serving as a judge advocate in the New Jersey Army National Guard, received a negative evaluation from a superior officer, Lieutenant Colonel Mark Winkler. In November 2006, she asked Winkler to retract the evaluation, but he denied the request.
In the morning of December 2, 2006, Winkler received a call in his office area at Fort Dix from Jackson’s cellular telephone number. The caller refused to give a name, but stated, ‘You know who this is. You gave me ... a shitty OER.”2 Throughout the day, until late afternoon, 47 more calls were made to Winkler’s office from Jackson’s number. Two other judge advocates on duty at the time became involved: Winkler enlisted Robert Stevens to answer most of the calls using speakerphone, and Mark Tarantino overheard many of them. Most of the calls consisted of loud recorded music or sirens, silence, and hang-ups. On some calls the caller (using a muffled voice) made statements such as “where’s the snake,” “put Winkler on the phone,” and “put his ass on the phone.” During a late morning call, the caller stated, “Tell him to come out for lunch. We’ll see him at lunch.”
Jackson was charged with the petty disorderly persons offense of harassment, in violation of N.J. Stat. Ann. § 2C:33-4a,3 as assimilated into federal law by 18 U.S.C. § 13. Before trial, her motion for a change of venue and to disqualify the Special Assistant U.S. Attorney were denied. During a two-day bench trial conducted before a Magistrate Judge, Winkler and Tarantino testified that they could recognize Jackson’s voice as the voice on the calls. Stevens, however, could not identify her voice based on, he testified, his few prior encounters with her. Winkler had recorded some of the calls with a handheld tape recorder; this tape was played at trial.
Winkler testified that, when the calls began, he was not overly concerned. However, as they continued, he became worried for his family’s safety, especially because he believed Jackson lived near his *779home. He called his wife around noon, warning her to look out for Jackson and asking her to inform their son of the situation. Around the same time, he called the police.
Jackson was found guilty and sentenced to two years’ probation and a $500 fine. She appealed her conviction and sentence to the District Court, who affirmed on all grounds relevant to this appeal. Jackson timely appealed to our Court.
II.
Jackson first challenges the sufficiency of the evidence, and the Magistrate Judge’s denial of a new trial on that ground. We review the sufficiency of the Government’s evidence to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998) (internal quotation marks and citations omitted). “It is not for us to weigh the evidence or to determine the credibility of the witnesses.” Id. (internal quotation marks and citation omitted). We review the denial of a motion for a new trial pursuant to Rule 33 for abuse of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir.2002). Such motions should be “granted sparingly and only in exceptional cases.” Gov’t of Virgin Islands v. Derricks, 810 F.2d 50, 55 (3d Cir.1987).
Jackson argues that the identification of her voice by Tarantino and Winkler was suspect because they had not been in communication with her recently, the audio quality was poor, and the speaker was muffling his or her voice. She also argues that a statement by James Sattley, a judge advocate in her unit, creates reasonable doubt as to whether she made the calls. Sattley placed Jackson at Fort Dix the afternoon of the calls, while the telephone records show that calls from her cell phone number that afternoon were routed through servers.in the New York metropolitan area. She further argues that the Magistrate Judge accorded too little weight to the testimony of Investigator Matthew Bloomberg, who at trial relayed Jackson’s statement to him that Jackson’s family often switched the Subscriber Identity Module (“SIM”) cards (which store the subscriber’s identification data, including the phone number) in their cell phones. Jackson argues that Bloomberg’s testimony creates a reasonable doubt as to whether it was Jackson (or instead, we presume, one of her family members) who placed the calls.
Despite Jackson’s objections, the evidence appears more than sufficient to support her conviction. There is no dispute that the phone calls were placed from Jackson’s cell phone number, and two witnesses testified that they recognized Jackson’s voice on the calls, despite her attempts to disguise it. A month before the calls, Jackson had requested that Winkler retract his negative evaluation of her, and the caller stated to Winkler that he had given her “a shitty OER.” As to the phone calls routed through the New York metropolitan area, this evidence does not show that these calls were actually placed from that area, but only that they were routed through those servers. There was no evidence at trial that, on the day of the calls, Jackson in fact had swapped SIM cards with any family member. Based on this record, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, the Magistrate Judge did not abuse his discretion in denying Jackson’s motion for a new trial.
III.
Jackson challenges the sufficiency of the evidence on another ground. Under N.J. Stat. Ann. § 2C:33-4a, the following elements must be shown:
*780(1) defendant made or caused to be made a communication; (2) defendant’s purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.
State v. Hoffman, 149 N.J. 564, 695 A.2d 236, 242 (1997). Jackson argues that her conduct did not satisfy the requirement that the communication was made in a manner “likely to cause annoyance or alarm.” She emphasizes that 1) only one or two of the calls were answered by Winkler himself, and 2) he was not alarmed by the first calls but only became concerned as the calls continued.
However, Winkler was alarmed enough to call his wife and the police. See State v. Reyes, 172 N.J. 154, 796 A.2d 879, 885 (2002) (concluding that communications were “likely to cause annoyance or alarm” when they led to the “summoning of the police” and a temporary restraining order). Moreover, as the District Court recognized, the nature, content, and sheer number of the calls, all directed at Winkler, constituted sufficient evidence to support the conviction.
IV.
Jackson next challenges the Magistrate Judge’s denial of her motion for a change of venue and for disqualification of the prosecutor. Neither argument is persuasive.
Motions for change of venue in federal court are governed by Federal Rule of Criminal Procedure 21(a), which provides:
The court upon motion of the defendant shall transfer the proceeding as to that defendant to another district whether or not such district is specified in the defendant’s motion if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.
Fed.R.Crim.P. 21(a). Jackson did not allege, let alone show, that there existed in the District of New Jersey “so great a prejudice” against her that she could not “obtain a fair and impartial trial.” Id. Therefore, a transfer of venue would have been inappropriate.4
Jackson’s motion to disqualify the prosecutor similarly fails. She bases her argument on the “risk of undue influence by the victim, the quasi-military/quasi-eivilian nature of the prosecution, and the appearance of impropriety and bias.” But the evidence shows that the prosecutor was not connected to Jackson, the witnesses, or Winkler, was not part of the same military organization as Winkler, and was not subject to Winkler’s command. We agree with the Magistrate Judge that there was “no evidence of any influence through the chain of command,” and we know of no evidence supporting the allegation that the prosecutor was biased or influenced by Winkler.5
*781V.
Finally, Jackson challenges her sentence of two years’ probation, including the requirement that she participate in a mental health treatment program, as substantively unreasonable. The Government has moved for dismissal of this issue because Jackson’s period of probation was revoked and terminated after the filing of this appeal when Jackson violated the terms of her probation.6 See United States v. Jackson, 523 F.3d 234, 241 (3d Cir.2008) (“A defendant who is no longer serving a term of imprisonment, parole, probation, or supervised release and challenges only his sentence will have his appeal dismissed for lack of jurisdiction unless he can somehow show sufficient collateral consequences....”). Jackson filed no response, and thus has not alleged any collateral consequences. As the mental health condition was a requirement of the terminated sentence of probation, her appeal as to that condition is also moot. Therefore, we grant the Government’s motion.7
For the reasons stated above, we affirm Jackson’s conviction, and dismiss the appeal of her sentence.
. The Magistrate Judge had jurisdiction under 18 U.S.C. § 3401 and 28 U.S.C. § 636. The District Court had appellate jurisdiction under 18 U.S.C. §§ 3402 and 3742(h). We have jurisdiction to review the District Court's order affirming the Magistrate Court’s judgment pursuant to 28 U.S.C. § 1291.
. An "OER” is an “Officer Efficiency Report,” a form used to evaluate personnel.
.Under N.J. Stat. Ann. § 2C:33-4a, it is a petty disorderly persons offense if any person, “with purpose to harass another, ... [mjakes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.” Id.
. To the extent Jackson sought, through her motion to transfer venue, to allege on the part of the Magistrate Judge any personal bias, prejudice, or knowledge of those involved in the case, we see nothing in the record to support those allegations.
. Jackson surmises that the Government did not consider her for a diversionary program or a continuance in anticipation of dismissal because Winkler improperly influenced the prosecutor. Not only is there no evidence this occurred, these decisions are entrusted to the discretion of the United States Attorney, and a defendant has no right to be placed in pretrial diversion.
. The merits of the parole revocation are not before us in this appeal.
. We note that even if we reached the merits of Jackson's appeal of her sentence, we would affirm. Jackson contends her sentence of two years' probation was substantively unreasonable in light of her military record, her lack of criminal history or history of similar behavior, the sufficiency of a no-contact order to protect Winkler, and the nature of the offense. However, under the totality of the circumstances, Jackson’s sentence "falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008). As to the mental health treatment requirement, the Magistrate Judge stated that he was concerned "as to what, if anything is pr[e]ying on the mind of this Defendant which led to this behavior, real or imagined,” and that he wished to ensure Jackson received the appropriate medical care. The requirement appears to result from a genuine concern for Jackson's welfare and long-term health.
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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/8477411/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Michael King appeals from a judgment entered by the United States District Court for the District of Delaware convicting him of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). King’s attorney filed a brief as permitted by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that there are no non-frivolous issues to appeal and seeking leave to withdraw from representing King. In response, King submitted a pro se brief in which he argues that the District Court erred in denying his motion to suppress. For the following reasons, we will grant counsel’s request to withdraw and affirm the judgment of conviction and sentence.
I. Background
A. Factual Background
At approximately 11:00 p.m. on February 12, 2008, Officers Matthew Kucharski and David Hamrick, and several other officers from the Wilmington Police Department, responded to a 911 call at the Bethel Villa Apartments in Wilmington, Delaware. The 911 caller was a woman residing at Bethel Villa who reported that a man with a gun had threatened to kill her. Upon arrival, Kucharski and Hamrick met the victim and heard her description of what had occurred. According to the victim, she had arrived home and found King sitting on the steps in the hallway of her apartment building smoking marijuana. A verbal altercation ensued, during which King told the victim, “mind your own business before I kill you.” (App. at A43.) After the victim went inside her apartment, King knocked on her apartment door, and she opened it slightly, leaving the chain-lock secured. King then pointed a silver gun toward her and said, “you’re going to die.” (App. at A44.) As she was closing the door, the victim heard King running upstairs and she looked out the door again in time to see him run into Apartment Cl, on the third floor.
Kucharski and Hamrick next proceeded to Apartment Cl, with the victim following close behind. Kucharski knocked on the apartment door, which was opened by Res-sa Cottingham, King’s girlfriend. Cotting-ham allowed them to enter the apartment to discuss the incident and confirmed to the officers that she lived in the apartment and her name was on the lease. Once inside, the officers noticed that there were children in the apartment, but they did not immediately observe any other adults.1 Cottingham informed the officers that *783King was also in the apartment. After the officers asked to speak with him, Cotting-ham yelled down the hallway for King, who came out of a bedroom. As King came out, the victim, who was able to see into the apartment from the outside hallway through the open door, identified King as the man who had threatened her.
Kueharski then patted down King and felt what he believed to be a bag of illegal drugs in his front right jacket pocket. Kueharski asked King what the object was, and King responded, “I don’t know, check.” (App. at A51.) Kueharski retrieved the bag from King’s pocket and found it contained marijuana. He then placed King under arrest and took him to the patrol car. According to the officers, as King left the apartment, he told Cot-tingham not to let the officers search the apartment without a warrant.
While Kueharski remained with King outside the apartment, Hamrick spoke to Cottingham about the incident and obtained Cottingham’s consent to search the apartment. Prior to receiving such consent, Hamrick reviewed a Wilmington Department of Police Consent to Search form with Cottingham and read the entire document to her. Cottingham signed the form, which acknowledges that Cottingham had the right to refuse the police to search her property, that she in fact waived this right of refusal, and that her written permission to search the property was given without threat, promises, or inducements of any kind. After obtaining Cottingham’s written consent, Hamrick proceeded to search the bedroom where King had been when the officers arrived at the apartment. While searching in the closet, Hamrick found a silver revolver, which the victim identified as the gun that King had brandished when he threatened to kill her.
After King’s arrest, Officer David Rosenblum took his statement. King said that he was living in the apartment with Cottingham and her child, but he also mentioned that he lived at another address. Rosenblum also interviewed Cot-tingham, who asserted that King did not live in the apartment and only stayed there occasionally.
B. Procedural Background
On March 4, 2008, a grand jury sitting in the District of Delaware returned a one-count indictment against King, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). King filed a motion to suppress evidence and statements, arguing that law enforcement officials had conducted a warrantless search in violation of the Fourth Amendment. At the suppression hearing that ensued, the focus was on whether King had standing to raise a Fourth Amendment challenge to the search of Cottingham’s apartment, as either a co-resident at the apartment or an overnight guest.
During the hearing, Nicholas Riley, a friend of King’s for the last five years, testified that King had a six-month-old baby with Cottingham and had been living with her in the apartment for approximately one year. When asked how he knew King lived with Cottingham, Riley stated, “I usually pick him up. I see him hanging out and visiting with her. I would go over and call.” (App. at A106.) In addition, Riley testified that King had keys to the apartment and kept his clothes and car at the apartment.
Riley also testified that he was sitting on the couch in Cottingham’s apartment when the officers entered and witnessed the events immediately before the arrest.2 He *784testified that Cottingham initially refused to give the officers permission to search the apartment and only consented to the search after they threatened to call Social Services and have her children taken from her. In addition, Riley claimed that the door to apartment Cl was closed while the officers were inside Cottingham’s apartment and that the victim was not present to identify King when he exited the bedroom. Thus, Riley testified that the identification did not occur as the officers claimed it did.
Sean Williams, an investigator for the Federal Public Defender’s Office, testified that he interviewed Cottingham, who informed him that she was being evicted from her apartment because of allegations that King lived with her. However, Cot-tingham never told Williams that the allegations were true (ie., that King was in fact living there.) Cottingham did not appear at the suppression hearing because the lawyer representing her in eviction proceedings instructed her not to speak about the incident.
The District Court denied King’s motion to suppress, concluding that King had not established a reasonable expectation of privacy in Cottingham’s residence as either a coresident or as an overnight guest. The Court found Riley’s testimony to be unworthy of belief. Instead, the Court credited the testimony of Officers Kucharski and Hamrick. Specifically, the Court stated:
Mr. Riley testified that he was with Mr. King throughout the day, but he was not with him when he ran from downstairs to Ms. Cottingham’s apartment upstairs. However, Mr. Riley testified that he was present when the Officers entered Ms. Cottingham’s apartment. Mr. Riley’s version of the events that transpired after the marijuana was found in Mr. King’s pocket differs from the testimony of the Officers, and the Court credits the testimony of Officers Kucharski and Hamrick. For example, Mr. Riley testified that there was a twenty minute gap between the time the Officers found the marijuana and the time they took Mr. King out of the apartment. During this twenty minute gap, Mr. Riley testified that the Officers were threatening Ms. Cottingham saying that they would take her kids away from her, and yet, Mr. King “was standing, just standing there looking’ ... This testimony is not only inconsistent with the Officer’s testimony, but it is also inconsistent with the position advanced by Mr. King in his Motion, i.e., that Mr. King was expressing his lack of consent to the search by telling Ms. Cottingham not to provide the Officers with consent to search the premises.
(App. at A17-18.) The Court also stated that Riley’s use of the words “hanging around” and “visiting” are inconsistent with the premise that King lived at the apartment. According to the Court, “a resident would not merely be ‘hanging out’ and ‘visiting’ with Ms. Cottingham, he would be living with her in the apartment on a consistent and regular basis.” (App. at A18.) The Court also found that Riley’s testimony was contradicted by Cotting-ham’s lease, which prohibited King’s full or part-time residence at the apartment, and by Detective Rosenblum’s testimony regarding his interview with Cottingham. Thus, the Court concluded that King had failed to adduce sufficient evidence to establish that he was a co-resident of the apartment at the time of the search.
The Court also concluded that King’s occasional presence at the apartment was insufficient evidence to establish that he was an overnight guest at the time in question. Further, aside from Riley’s tes*785timony, which the Court rejected, there was no evidence that King had clothes, belongings, or any overnight bags in the apartment.
On October 9, 2008, King pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), reserving the right to appeal the District Court’s suppression ruling. On January 16, 2009, the Court sentenced King to 78 months of imprisonment and three years of supervised release. King has timely appealed.
II. Discussion3
Under Anders v. California, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). “That request must ... be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. In United States v. Youla, we summarized the requirements for counsel’s withdrawal and our review of the record as follows:
The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous. Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the “conscientious examination” standard set forth in Anders.
241 F.3d 296, 300-01 (3d Cir.2001) (citations omitted). An appeal is frivolous where “none of the legal points are arguable on the merits.” Id. at 301 (citations omitted).
In this case, the only potential issues mentioned in King’s counsel’s brief relate to the motion to suppress and the reasonableness of King’s sentence. After describing those issues, counsel acknowledged that there was no sound basis for advancing them on appeal. King apparently concedes that there are no non-frivolous arguments regarding the reasonableness of his sentence, as the only argument raised in his pro se brief pertains to the motion to suppress.4
Turning to the argument raised by King in his pro se brief, “[w]e review [a] district court’s denial of [a] motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (citations omitted).
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. Amend. IV. Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause, unless it falls within an exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If voluntary consent is obtained from the individual whose property is to be searched or a third party with common authority or joint control over the premises, the government may search the premises without a warrant. Schneckloth v. Bustamonte, 412 U.S. 218, *786222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In his motion to suppress, King argued that the evidence obtained by the government should be suppressed because the government did not obtain valid consent to search the apartment where King’s gun was found.5 In order to maintain such a challenge, King must show that his own constitutional rights have been violated by the search in question, ie., that he has standing. United States v. Padilla, 508 U.S. 77, 81-82, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993).
To establish standing, the party contesting the legality of the search bears the threshold burden of establishing that he or she had a reasonable expectation of privacy in the property searched and the item seized. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). At issue here is whether King has standing to challenge the search of Cottingham’s apartment by virtue of being a coresident or an overnight guest.6 King does not take issue with the District Court’s application of law, but argues that the Court erred in its factual determinations that he was not a co-resident or overnight guest. Essentially, he argues that the Court erred by rejecting the testimony of Riley and accepting the testimony and statements of Kucharski, Hamrick, Rosenblum, and King’s own girlfriend, Cottingham. However, “assessments of credibility by the trial court are entitled to great deference at the appellate level.” Givan, 320 F.3d at 452 (quoting United States v. Brothers, 75 F.3d 845, 853 (3d Cir.1996)).
Further, the record reveals that the District Court’s factual findings are not clearly erroneous. The evidence supporting King’s position that he was a co-resident or overnight guest was limited and rebutted. Not only was Riley’s testimony inconsistent with that offered by the officers, it was also inconsistent with the arguments advanced by King at the suppression hearing and with statements made by Cotting-ham. For example, while Riley claimed that King lived at the apartment, Cotting-ham, who undisputably lived at the apartment, told officers that King did not live there. The Court was fully justified in accepting the testimony it chose to accept and in concluding that King was not a coresident or overnight guest. Having made that determination, the Court properly concluded that King lacked standing to challenge the search of Cottingham’s apartment.
We also conclude that counsel’s brief adequately demonstrates a thorough examination of the record in search of ap-pealable issues and an adequate explanation of why the issues are frivolous. Thus, counsel for King has satisfied the Anders requirements and we will grant the motion to withdraw.
III. Conclusion
For the foregoing reasons, will grant counsel’s request to withdraw representation and affirm the judgment of the District Court.
. In contrast, Nicholas Riley, a friend of King, testified that he was in Cottingham's apartment sitting on the couch when the officers entered.
. It is unclear whether Riley was in fact present when the officers entered Cottingham's apartment. Kueharski seems to recall Riley, or at least some adult male other than King, *784being present. However, Hamrick does not recall seeing Riley in the apartment.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. After reviewing the record, we also find that any argument with respect to the sentence would be frivolous. The District Court properly calculated King's Guideline range, meaningfully considered the Sentencing Guidelines and § 3553(a) factors, and provided detailed reasons for its imposition of a sentence at the top of the advisory Guidelines range.
. King did not dispute that Cottingham had the authority to permit the search. Rather, he argued that Cottingham's consent was not given freely and voluntarily, because it was only after the officers threatened to call Social Services and have her children taken from her that Cottingham consented to the search of her residence.
. A co-resident of a shared dwelling and an overnight guest of a dwelling are typically held to have a reasonable expectation of privacy in that dwelling. See e.g., Olson, 495 U.S. at 97, 110 S.Ct. 1684; United States v. Villegas, 495 F.3d 761, 772 (7th Cir.2007).
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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/8477413/
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Relator Robert Pritzker appeals the District Court’s dismissal of this qui tam action against defendants Sodexho, Inc., Sodexho America, LLC, Sodexho Marriott Management, Inc., and Sodexho Management, Inc. (“Sodexho”); ARAMARK Corporation and Aramark Educational Services, Inc. (“ARAMARK”); and Compass Group USA, Inc., doing business as Chart-wells (“Chartwells”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. Pritzker filed this qui tam action by filing a complaint, pro se, under seal in the District Court for the Eastern District of Pennsylvania on October 30, 2003. He filed an amended complaint, represented by counsel, on August 1, 2007. Pritzker alleges that the defendants caused the submission of false claims in connection with the National School Lunch Program and the School Breakfast Program, in violation of 31 U.S.C. §§ 3729(a)(1) and 3729(a)(2). These federal school programs are administered by the Food and Nutrition Service (“FNS”) of the United States Department of Agriculture (“USDA”). FNS provides grants to the relevant State Agencies (“SAs”), who in turn distribute these funds to the School Food Authorities (“SFAs”) responsible for administering the federal school food programs in individual school districts. Many SFAs operate their own school food programs, but some SFAs contract with food service management companies (“FSMCs”) such as the defendants to manage and operate the lunch and breakfast programs in their school districts.
Pritzker alleges that the defendants caused SFAs and SAs to certify falsely compliance with the regulations governing the National School Lunch Program and the School Breakfast Program, in two different ways. First, Pritzker alleges that the defendants retained rebates and credits they received from their suppliers, in violation of regulations requiring that costs reimbursed in cost-reimbursable contracts be net of any rebates or credits (the “rebate claims”). Second, Pritzker alleges that the defendants purchased food and supplies from higher cost national distributors who offered to pay rebates and credits rather than from lower cost regional distributors, in violation of procurement regulations requiring free and open competition (the “procurement claims”).
Before Pritzker filed his complaint, several government agencies had investigated the issues underlying the rebate claims. In 1996, the General Accounting Office published a report on the “Role and Impacts of Private Food Service Companies.” Joint Appendix (“J.A.”) 125-190 (“1996 GAO Report”). The 1996 GAO Report observed “[flood service contracts vary in their treatment of rebates and discounts received by the food service company when it purchases food for the food authorities.” J.A. 132. Of the contracts reviewed for the report, 40 percent did not address rebates or discounts, 37 percent required the FSMCs to pass through rebates and discounts, and 18 percent permitted FSMCs to retain rebates and discounts. J.A. 163.
Beginning in 2001, the USDA’s Office of Inspector General (“OIG”) conducted a series of audits examining various issues regarding the federal school food programs, including the retention of rebates by FSMCs. This investigation culminated in an audit report published April 30, 2002 (the “April 2002 Audit Report”). J.A. 329-*789370. The objective of this report was “to determine whether sufficient controls existed to ensure that management companies complied with program requirements in crediting [SFAs] for the value of USDA-donated commodities and purchase discounts and rebates.” J.A. 331. The report disclosed that:
Two management companies that maintained cost-reimbursable contracts nationwide profited at the expense of 7 of the 19 [SFAs] we reviewed by retaining over $280,000 in discounts and rebates they received on purchases made for their food service operations. To accomplish this, the management companies amended, eliminated, or ignored terms in the requests for proposal issued by the [SFAs], Contrary to FNS regulations, the management companies were able to include contract terms that favored them, because FNS did not mandate specific contract terms and provisions.
These 2 management companies contracted with over 18 percent of the 1,648 SFA’s that had management contracts nationwide.
J.A. 332; see also J.A. 340. The results of this April 2002 Audit Report were also highlighted in a newspaper article, J.A. 363, and congressional testimony, J.A. 432.
In response to these OIG audits, FNS promulgated new regulations explicitly requiring SFAs to include contract terms prohibiting FSMC retention of rebates and other credits. See Procurement Requirements for the National School Lunch, School Breakfast and Special Milk Programs, 69 Fed.Reg. 78340 (Dec. 30, 2004). The proposed rules were issued in 2004, and the regulations became effective in 2007.
The District Court entered a final order dismissing the complaint on March 6, 2009, 2009 WL 579380. The District Court dismissed the rebate claims for lack of subject matter jurisdiction, holding that the False Claim’s Act jurisdictional bar, 31 U.S.C. § 3730(e)(4), precluded it from exercising jurisdiction.1 The court concluded that “critical elements of the Relator’s allegations, indeed, the fraud itself, were public long before Relator filed suit.” J.A. 16. The “meat and potatoes of the fraud — retention of rebates despite regulations requiring those rebates to be passed through to the SFAs — was revealed” in the April 2002 Audit Report, and Pritzker “merely molds this publicly disclosed regulatory violation into a false certification theory....” Id. The court also held that Pritzker was not an original source of the information underlying the rebate claims. The court dismissed the procurement claims for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6), holding that although the procurement regulations required SFAs to engage in competitive bidding when contracting with FSMCs, these regulations did not require competitive bidding in the FSMCs’ subsequent procurement of food and supplies.
Pritzker timely appealed.
II.
The District Court had jurisdiction, if at all, pursuant to 31 U.S.C. §§ 3730(b)(1) and 3732(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s dismissal of the rebate claims based on the statute’s jurisdictional bar, see, e.g., United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 737 (3d Cir.1997) (citation omitted), and over the District Court’s *790dismissal of the procurement claims for failure to state a claim, see, e.g., Umland v. Planco Financial Services, Inc., 542 F.3d 59, 63-64 (3d Cir.2008).
III.
Pritzker’s first argument on appeal is that the District Court erred by dismissing the rebate claims as barred by § 3730(e)(4). The False Claims Act bars qui tam suits where the fraud has been publicly disclosed in certain enumerated sources prior to the commencement of the suit, unless the relator was the original source of the information.2 31 U.S.C. § 3730(e)(4). Section 3730(e)(4) provides:
(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or [GAO] report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
(B) For purposes of this paragraph, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.
Id.
We hold that the District Court properly dismissed the rebate claims because the court lacked jurisdiction over these claims pursuant to § 3730(e)(4). We hereby adopt the careful and detailed analysis employed by Judge Schiller on this issue.3
IV.
Pritzker’s second argument is that the District Court erred by dismissing the procurement claims for failure to state a claim. The “full and open competition” regulations apply only to grantees and subgrantees of federal funds, in this case SAs and SFAs. See 7 C.F.R. §§ 3016.36(a) (requiring that grantees and subgrantees follow the listed procurement standards), 3016.36(c)(1) (requiring “full and open competition” in all “procurement transactions”). Pritzker acknowledges that FSMCs are not directly covered by these regulations but argues that since the defendants procured food and supplies on behalf of SFAs, the defendants’ failure to employ competitive bidding caused the SFAs to falsely certify compliance with the regulations. Pritzker cannot, however, identify any regulation requiring competitive bidding on the part of FSMCs. As the National School Lunch Program regulations make clear, an SFA is required to “[a]dhere to the procurement standards ... when contracting with the food service management company.” 7 C.F.R. § 210.16(a)(1) (emphasis added). The SFAs, as subgrantees, are required to conduct competitive bidding when selecting an FSMC, see 7 C.F.R. § 3016.36(c)(1), but Pritzker cannot identify any authority suggesting that these procurement regulations reach any deeper into the supply chain. We agree with the District Court that Pritzker has failed to state a claim with respect to the procurement claims.
*791V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. As an alternative basis for dismissing the rebate claims, the District Court also concluded that Pritzker had failed to allege a false claim, because the regulations did not clearly prohibit the defendants' conduct until they were revised in 2007.
. Counsel for Pritzker conceded during oral argument that Pritzker was not an "original source” for purposes of § 3730(e)(4).
. The District Court also concluded that, even if the rebate claims were not jurisdictionally barred, Pritzker failed to state a claim because he could establish that the claims submitted by SAs and SFAs were false or fraudulent. Because we conclude that the rebate claims are barred by § 3730(e)(4), we do not reach this issue.
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OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Joseph F. Laffey appeals the judgment of the District Court (1) dismissing his *792complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and (2) denying his motion for leave to amend complaint. We will affirm.
I.
Because we write exclusively for the parties, we recount only the facts necessary to our decision. We accept Laffey’s well-pleaded facts as true following the District Court’s dismissal of his case.
Laffey has served as a Court Security Officer (CSO) assigned to the United States Courthouse in Camden, New Jersey since 1988 and is employed by MVM, Inc. (MVM), a private company working under contract with the United States Marshals Service (Marshals Service) to provide security in the District of New Jersey. From June 2002 until February 2005, Laffey served as the Lead Court Security Officer (LCSO) in Camden. In conjunction with his CSO duties, Laffey has served since 2003 as President of the Security Officers, Police and Guards Union, Local No. 1586 (Union), which represents CSOs assigned to the federal courts in New Jersey.
In 2003, Hansel Torriero, a CSO serving at the United States Courthouse in Newark, New Jersey, requested that MVM transfer him to Camden. Laffey opposed the transfer in his capacity as President of the Union, arguing that Torriero lacked the necessary seniority to qualify for the transfer under the collective bargaining agreement (CBA) between the Union and MVM. After Torriero was denied a transfer, he sued Laffey, MVM, and the Union.
Following his opposition to Torriero’s transfer request, Laffey alleged that MVM and the Marshals Service harassed and retaliated against him. According to Laf-fey, he was told that the Deputy Chief United States Marshal for the District of New Jersey, Donald Rackley, wanted Tor-riero to work in Camden, blamed Laffey for blocking the transfer, and instructed Laffey’s supervisor “to do something about Officer Laffey or have something done to him.” In November 2004, Laffey allegedly was told that “things would get worse and worse until” Rackley, James Plousis (the United States Marshal for the District of New Jersey), and MVM “get you.” Laffey also alleged that James Elcik, a Marshals Service employee who liaised with MVM, told him that Rackley was “upset with him because he would not allow Torriero to transfer.” Finally, Laffey claimed that in the fall of 2004, Elcik criticized him for mishandling CSO time sheets and told him not to attend security meetings at the Camden courthouse.
In January 2005, Plousis allegedly asked Elcik: “what are we going to do now” about punishing Laffey? Laffey also alleged that MVM investigated Laffey’s performance at the request of the Marshals Service in early January 2005. According to Laffey, “most” of the charges against him were “not sustained.” Laffey concludes that this campaign of retaliation resulted in his suspension without pay for over two weeks in January 2005 and his removal from the LCSO position by MVM in February 2005.
Laffey sued Plousis, Rackley, and Tor-riero in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that they violated his First Amendment rights to freedom of speech and freedom of association by “interfering with his employment” in retaliation for his opposition to Torriero’s transfer. Plousis and Rackley, joined by Torriero, filed a motion to dismiss, contending that Laffey’s complaint failed to state a claim for relief. On June 29, 2007- — over two years after filing suit — Laffey sought leave to amend his complaint to add Elcik as a defendant and to allege that he had been denied *793promotion to the LCSO position in 2006 in retaliation for his prior conduct.
The District Court granted the motion to dismiss, finding that Laffey’s complaint failed to allege that Plousis, Raekley, Tor-nero, or any Marshals Service employee either was directly involved in Laffey’s suspension and demotion or had the ability to control or influence disciplinary actions taken by MVM. Laffey’s motion to amend complaint was likewise denied.
II.
Laffey appeals the District Court’s dismissal of his complaint and the denial of his motion for leave to amend.1 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a District Court’s decision granting a motion to dismiss pursuant to Rule 12(b)(6). Ballentine v. United States, 486 F.3d 806, 808 (3d Cir.2007). Our review of the denial of Laffey’s motion for leave to amend is for abuse of discretion. Bechtel v. Robinson, 886 F.2d 644, 647 (3d Cir.1989).
III.
A.
Bivens authorizes a private cause of action for damages to redress an alleged deprivation of a federal constitutional right caused by an official acting under color of federal law.2 See Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). In dismissing Laffey’s First Amendment claim, the District Court held that Laffey’s complaint failed to allege that Plousis, Raekley, or any other Marshals Service employee was “directly involved in the suspension or demotion of’ Laffey or that any Marshals Service employee “had any control over the disciplinary actions executed by MVM against CSOs.” Accordingly, Laffey failed to allege that any deprivation of his constitutional rights was caused by a defendant acting under color of federal law.
Laffey now contends that this was error, arguing that the complaint “clearly avers that MVM took actions at the direction and instigation of [Marshals Service employees].” We are unpersuaded that Laf-fey’s complaint is quite so clear. As the District Court observed, Laffey did not allege any specific facts which identify any employee of the Marshals Service who was directly involved in Laffey’s demotion or suspension. Nor did he allege that Plous-is, Raekley, or Elcik were able to intervene in MVM’s internal disciplinary proceedings. “Because vicarious liability is inapplicable to Bivens ... suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. Here, the complaint did not allege that the individual defendants were personally and directly involved in any retaliatory employment ac*794tions taken against Laffey, as Iqbal requires. See id.
Laffey did allege that Plousis and Rack-ley were displeased with his opposition to Torriero’s transfer request and that they told Laffey’s supervisor to “do something” to or about Laffey. He also alleged that Elcik criticized his handling of CSO time sheets and prevented him from attending courthouse security meetings. Such allegations are consistent with a conclusion that Plousis, Rackley, and Elcik sought to retaliate against Laffey. But Iqbal makes clear that allegations that are “merely consistent with” liability are insufficient to “state a claim for relief that is plausible on its face” in a Bivens action. Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Under this standard, Laffey’s complaint is deficient because it fails to allege specific facts suggesting that Plousis, Rackley, and Elcik actually did— or even could — personally intervene to cause MVM to discipline Laffey in violation of his First Amendment rights.
Laffey relies heavily on our decision in Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir.2007), where several CSOs were terminated by MVM after they failed medical tests mandated by the Marshals Service. After the CSOs sued both the Marshals Service and MVM, the Marshals Service argued that it could not be held liable for MVM’s independent decision to terminate the CSOs. We disagreed, holding that the Marshals Service’s “determination that appellants were medically disqualified led directly to their termination.” Wilson, 475 F.3d at 178 (citing Greene v. McElroy, 360 U.S. 474, 483, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)).
Laffey’s case differs significantly from Wilson, where MVM’s decision -to terminate the plaintiffs stemmed directly from their failure of medical tests required by the Marshals Service. Id. at 176. Indeed, the Wilson plaintiffs’ inability to pass the Marshals Service’s medical tests prevented them from serving as “qualified” CSOs under the terms of the contract between the Marshals Service and MVM. Id. at 170-71. By contrast, Laffey alleged no facts which would establish a causal link between his suspension or demotion and the actions of any individual Marshals Service employee.
Finally, Laffey observes that several circuits recognize that in the § 1983 context, one can be held liable for a constitutional violation by “setting in motion” certain events which he knows or should know will result in a constitutional violation. See, e.g., Sales v. Grant, 158 F.3d 768, 776 (4th Cir.1998). Laffey asks us to adopt and apply a similar standard in this Bivens action and to find that Rackley, Plousis, and Elcik are liable because “they pressured MVM into disciplining Laffey....” We have yet to apply such a standard in cases arising under § 1983, much less in the context of a Bivens action. Furthermore, we are hesitant to adopt this standard following Iqbal, a Bivens action in which the Supreme Court emphasized “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948 (emphasis added). And finally, although Laffey argues that Plousis, Rackley, and Elcik “pressured” MVM into disciplining him, his complaint alleges insufficient facts to support such an inference.
In sum, the District Court did not err because Laffey failed to allege facts sufficient to demonstrate that any individual Marshals Service defendant was responsible for his demotion or suspension.
B.
Laffey also challenges the District Court’s denial of his motion for leave to amend to allege that he was denied pro*795motion to the vacant LCSO position in retaliation for his opposition to the Torne-ro transfer and to add Elcik, a Marshals Service employee, as a defendant. We conclude that the District Court’s refusal to allow Laffey to amend his complaint was not an abuse of discretion. As discussed previously, Laffey failed to allege sufficient facts to show that Elcik or any other Marshals Service employee was directly involved in MVM’s decision to discipline him. See Part III.A, supra. Accordingly, any amendment adding Elcik as a defendant or alleging that MVM denied Laffey a promotion would have been futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that leave to amend should be freely granted unless an amendment would be futile).
IV.
For the foregoing reasons, we will affirm the District Court’s judgment in all respects.
. Laffey settled his claims against MVM and its individual employees. Accordingly, we consider only the dismissal of Laffey’s claims against the individual Marshals Service defendants, Raekley and Plousis, as well as the District Court’s refusal to allow Laffey to add a claim against Elcik.
. We note that the Supreme Court has "declined to extend Bivens to a claim sounding in the First Amendment." See Ashcroft v. Iqbal, - U.S. -, -, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). Because Laffey's complaint fails on other grounds, we assume for the purposes of analysis — as did the Supreme Court in Iqbal — that a First Amendment claim is cognizable under Bivens. Id. (”[W]e assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens."). We also assume without deciding that Laffey's speech was protected by the First Amendment.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roy Hunt, Jr., appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hunt v. Sandhir, No. 3:06-cv-00539-RLW (E.D.Va. June 30, 2009). We deny Hunt’s motions for appointment of counsel and summary disposition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martell Whitaker petitions for a writ of mandamus, alleging that the district court has unduly delayed acting on a Fed. *814R.Civ.P. 60(b) motion. He seeks an order from this court directing the district court to act.
Our review of the district court’s docket sheet reveals that the district court issued a final opinion and order denying Whitaker’s motion on December 21, 2009. Accordingly, because Whitaker has received the relief he sought, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Eugene Cook appeals the district court’s order adopting the recommendation of the magistrate judge and dismissing two of his three claims 'in his 42 U.S.C. § 1983 (2006) complaint, and affirming the magistrate judge’s order denying Cook’s motion for sanctions. We have reviewed the record and find no reversible error. Nor does the record support Cook’s assertion that the district court is biased against him. Accordingly, we affirm for the reasons stated by the district court. Cook v. Bennett, No. 1:07-cv-00031-JAB-DPD (M.D.N.C. Dec. 10, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torina A. Collis filed a civil action alleging she was terminated in violation of the whistleblower provisions of the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A' (West Supp.2009). Collis appeals the district court’s order granting summary judgment, for reasons stated from the bench, in favor of the Defendant. Accordingly, we affirm. See Livingston v. Wyeth, Inc., 520 F.3d 344, 351 (4th Cir.2008) (discussing elements needed to establish a retaliation *820claim under the Act). 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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ORDER
Lisa Gillard claims that a lawyer trying to execute a judgment for unpaid rentvio-lated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-16920. The district court dismissed the complaint for failure to state a claim. We affirm that decision.
Gillard rented a Chicago condominium from Delphin and Angela Melchor. When she failed to pay the rent, the Melchors filed an eviction action in state court and were awarded possession and $17,375. More than a year later, in October 2008, Gillard brought this lawsuit claiming that the Melchors and their lawyer, Alexander Michalakos, had violated the FDCPA in trying to collect the judgment. The complaint, which we accept as true, see Lake v. Neal, 585 F.3d 1059, 1060 (7th Cir.2009), alleges that the Melchors assaulted Gillard on a city bus, and that Michalakos placed a lien on her bank account by serving the bank with a citation to discover assets, see 735 Ill. Comp. Stat. 5/2-1402. These actions, according to Gillard, constituted “abusive, deceptive, and unfair” debt-collection practices.
The Melchors were never served with process, and thus were never made parties to the lawsuit. See Fed.R.Civ.P. 4; Leber v. Universal Music & Video Distrib., Inc., 332 F.3d 452, 454-53 (7th Cir.2003); Bagola v. Kindt, 131 F.3d 632, 637 (7th Cir.1997). We need not mention them further. Michalakos moved to dismiss the complaint for failure to state a claim. See Fed.R.CivP. 12(b)(6). In granting that motion, the district court reasoned that Gillard nowhere alleges that Michalakos was acting as a “debt collector” within the meaning of the FDCPA, and that, at all events, his actions did not violate the statute.
On appeal Gillard principally contends that Michalakos is a debt collector and that by placing the hen on her bank account he violated the FDCPA’s proscription against using “unconscionable means” to collect a debt. See 15 U.S.C. § 1692f. A lawyer’s collection efforts can potentially lead to liability under the FDCPA, but only if the attorney qualifies as a “debt collector” as defined in the statute. See 15 U.S.C. § 1692(a)(6); McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir.2006); Boyd v. Wexler, 275 F.3d 642, 644 (7th Cir.2001); Jenkins v. Heintz, 25 F.3d 536, 538 (7th Cir.1994). The district court concluded that Gillard’s complaint does not allege that Michalakos was *3acting as debt collector; he is not explicitly described as a “debt collector,” and neither does the complaint' say that he regularly collected debts or that the principal purpose of his law practice was to collect debts. But whether or not Michalakos was functioning as a “debt collector,” his use of § 5/2-1402 to obtain a lien on Gil-lard’s bank account did not violate § 1692f. We so held in Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 475 (7th Cir.2007), and Gillard’s only answer to that decision is that we should disregard it. See also Shimek v. Weissman, Nowack, Curry, & Wilco, P.C., 374 F.3d 1011, 1013-14 (11th Cir.2004).
Gillard’s remaining contentions are likewise meritless. She insists that her complaint states a claim under 15 U.S.C. § 1692e(7), which imposes liability if a debt collector tries to disgrace a debt- or by falsely implying or representing that he committed a crime or engaged in other misconduct. See McMillan v. Collection Prof'ls Inc., 455 F.3d 754, 760-61 (7th Cir.2006). As the district court pointed out, nowhere in her complaint does Gillard allege that Michalakos said or implied anything about her that was not true. The absence of allegations also dooms Gillard’s suggestion that her complaint accuses Michalakos of engaging in harassing conduct, see 15 U.S.C. § 1692d, by sending his clients to assault her on the bus. There is no hint of a connection between Michalakos and the assault.
AFFIRMED.
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ORDER
Sherman Johnson pleaded guilty to possessing crack with intent to distribute and was sentenced as a career offender to a term of 170 months. In the plea agreement Johnson waived his right to appeal all issues except whether his prior Illinois conviction for aggravated battery qualified as a crime of violence under the career-offender guideline. As the government concedes, circuit precedent controls the outcome here, and so we vacate the sentence and remand.
In the presentence investigation report, the probation officer classified Johnson as a career offender under § 4B1.1 of the sentencing guidelines because of two prior convictions for crimes of violence. Johnson objected that one of the convictions— for aggravated battery — was not a crime of violence under the residual, “otherwise involves” clause of § 4B1.2(a)(2).1 An aggravated battery under Illinois law is committed either by causing great bodily harm, 720 Ill. Comp. Stat. 5/12-4(a), or by performing a simple battery in the presence of a listed aggravating factor, such as being in a public place of accommodation, id. 5/12-4(b)(8). A simple battery can occur either by causing bodily harm, id. 5/12-3(a)(l), or by making contact “of an insulting or provoking nature,” id. 5/12— 3(a)(2). See People v. Ojeda, 397 Ill. App.3d 285, 336 Ill.Dec. 876, 921 N.E.2d 490 (2009). According to the charging document here, Johnson “knowingly made contact of an insulting or provoking nature with [the victim], in that the defendant struck [the victim] in the face with his fist” while in Club Tequila, a public place of accommodation. Johnson noted that he was charged with the part of the statute criminalizing insulting or provoking contact in a public place, not the section prohibiting causing bodily harm. See 720 Ill. Comp. Stat. 5/12-4(b)(8). He argued that the offense should not be categorized as a crime of violence under § 4B1.2(a)(2)’s residual clause because insulting or provoking contact did not encompass the kind of violent and aggressive conduct required by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
After a hearing, the district court concluded that the aggravated-battery conviction — and specifically Johnson’s act of striking a woman in the face — qualified as *5a crime of violence. As a career offender, Johnson had an advisory guidelines range of 262-827 months. The court’s 170-month sentence was far below the low end of the recommended range. Had Johnson not qualified as a career offender, the guidelines range would have fallen below the statutory minimum of 120 months’ imprisonment, making the statutory minimum the recommended sentence.
After Johnson filed a notice of appeal, we decided United States v. Evans, 576 F.3d 766, 767, 769 (7th Cir.2009), concluding that the defendant’s prior Illinois conviction for aggravated battery — charged as making physical contact of an insulting or provoking nature against a woman known to be pregnant — was not a crime of violence for purposes of the career offender guideline. See 720 Ill. Comp. Stat. 5/12-4(b)(11). In Evans, we noted that the terms “insulting” or “provoking” derived from the common law tort of battery. Battery can be offensive (such as spitting on a person) or forcible (such as pushing a person to the floor) — and only the latter is a crime of violence. 576 F.3d at 768-69. But the statute is not divisible — that is, the same words, “insulting or provoking,” describe both a violent and nonviolent way of committing the crime. Thus, we could examine only which crime the defendant committed, not how he committed that crime. Id. at 769 (citing United States v. Woods, 576 F.3d 400, 407-08 (7th Cir.2009)). And because most insulting or provoking contact with a pregnant woman is not violent, the defendant’s conviction for aggravated battery was not a crime of violence. Evans, 576 F.3d at 769.
Johnson argues that Evans is dispositive because if insulting or provoking contact with a pregnant woman is not a crime of violence, making insulting or provoking contact in a public place also cannot be. He asserts that the district court imper-missibly considered how he committed the crime for more than determining which part of the statute he violated. The government concedes that Evans is indistinguishable from this case. We agree. The presence of a different aggravating factor — a public place rather than a pregnant victim — does not change Evans’s conclusion that insulting or provoking contact, in the ordinary case, is not violent. See Woods, 576 F.3d at 403-06. The kind of insulting or provoking contact Johnson made is irrelevant, and so the district court erred by considering Johnson’s specific acts beyond the extent necessary to determine that Johnson was convicted of making insulting or provoking contact, not causing bodily harm. Johnson’s prior conviction for aggravated battery is not a crime of violence.
Accordingly, the sentence is VACATED and the case is REMANDED for resen-tencing.
. The guidelines define "crime of violence” as any offense under federal or state law punishable by imprisonment of more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or "is a burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).
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ORDER
First Bank and Trust Company of Illinois (“First Bank”) filed a lawsuit for breach of contract against Avram and Cindy G. Cimerring. The suit alleged that loans made by First Bank and guaranteed by the Cimerrings were in default, and demanded that the Cimerrings pay the amount due on the loans. The Cimerrings responded by denying that any amounts were past due, and by asserting counterclaims which we will not discuss because they are irrelevant to the current appeal. The district court granted summary judgment to First Bank, holding that the loans were in default and entering judgment for the amount owed.
*7The loans underlying the case were commercial loans that were guaranteed personally by the Cimerrings. The first was initiated in March 2004 to CGC Wintergreen Apartments, known as the Wintergreen loan, and the second loan was made two months later to a number of borrowers including CGC Bridgeway Apartments, LLC, and known as the Bridgeway loan. The Cimerrings executed a Guaranty of Payment and Performance for each of the loans which personally guaranteed the loans until paid in full.
As a result of subsequent amendments, the loans were cross-collateralized and incorporated terms under which a default on one loan would be considered a default of the other as well. We need not detail the subsequent amendments, because there is no disagreement as to the relevant default provisions for the loans. The only issue is whether the district court properly determined that the Cimerrings defaulted on the loan as a matter of law.
The loan agreements provided for over 20 “Events of Default” — a number of which are arguably met here. In the initial complaint, First Bank alleged a default based on the failure to make timely payments. In subsequent amendments, First Bank added a number of other bases for the default, including: the filing of criminal charges for which forfeiture of assets is a potential penalty, against the “borrower party” or any of the managers; the filing of bankruptcy by any of the borrower party; and the failure of the borrower to diligently prosecute compliance with the building code regulations. First Bank argues to this court that the Cimerrings were barred by collateral estoppel from contesting default. First Bank could have obtained summary judgment on any number of these grounds. The district court considered only the default related to the filing of a criminal charge, and granted summary judgment on that ground. We affirm on that as well, and therefore need not consider the other potential grounds of default.
The default clause related to the criminal charge provides that an event of default occurs upon “[t]he filing of formal charges by any governmental or quasi-governmental entity, including, without limitation, the issuance of an indictment, under a RICO Related Law against any Borrower Party.” The term “RICO Related Law” is defined as “the Racketeer Influenced and Corrupt Organizations Act of 1970 or any other federal, state, or local law for which forfeiture of assets is a potential penalty.” On June 7, 2005, Av-ram Cimerring pled guilty in Kentucky state court to 11 counts of theft by deception of over $300.00 in violation of Kentucky Revised Statute § 514.040 and was sentenced to three years’ pretrial diversion. Under Kentucky law, upon a conviction for certain offenses including theft by deception, property held in violation of the chapter and any personal property used in the commission or furtherance of the offense shall be forfeited. Ky.Rev.Stat. § 514.030. Therefore, Avram Cimerring, a borrower party under the loan agreement, pled guilty to 11 counts of violation of a state law for which forfeiture of assets was a potential penalty.
Cimerring first attempts to avoid this default by asserting that there is no evidence that he was actually charged with theft by deception, as the only evidence of record indicates the counts to which he pled guilty. The contention that Avram Cimerring pled guilty to 11 counts of theft by deception but was never charged with those offenses is specious. The Cimer-rings are entitled only to reasonable inferences of fact. SMS Demag Aktiengesells-chaft v. Material Sciences Corp., 565 F.3d 365, 369 (7th Cir.2009); Omosegbon v. *8Wells, 335 F.3d 668, 677 (7th Cir.2003). They have presented no evidence from which one can reasonably infer that Avram Cimerring was not charged with the counts to which he pled guilty. When presented with that apparent contradiction, the Cimerrings resort to an equally insupportable alternate argument that Avram Cimerring was never convicted of theft by deception because his guilty plea was accepted and he was granted pretrial diversion. The Cimerrings further argue that not all convictions under theft by deception will result in forfeiture of assets, and under some facts forfeiture of assets will not occur.
We need not tarry over any of these contentions, because they are red herrings. The loan agreement states that it is a default if the borrower party is charged under a law for which forfeiture of assets is a potential penalty. The undisputed evidence of record is that Avram Cimer-ring, a borrower party, was charged with 11 counts of theft by deception, as evidenced by his plea of guilty to those charges, and that law provides as a potential penalty the forfeiture of assets. Cim-erring ignores the plain language of the loan agreement in arguing such irrelevancies as whether he was convicted or whether on the facts of his criminal case — undeveloped given the guilty plea — his assets could have been forfeited. The agreement requires only a charge, and that the law provide for the potential penalty of forfeiture of assets. Those conditions are indisputably met: he was charged under a law that provides for forfeiture of assets, and that constitutes a default under the loan agreement regardless of whether he was convicted and whether forfeiture actually was ordered. Therefore the district court properly determined that First Bank had established default as a matter of law.
Cimerring attempts to avoid that conclusion by arguing that, under the “mend the hold” doctrine, First Bank cannot assert the criminal charge as a basis for default because it first asserted the Cimerrings were in default based on the shortfall in payments. The mend the hold doctrine provides that a contract party is not permitted to change its position on the meaning of a contract in the middle of litigation over it. See RLI Insurance Co. v. Conseco, Inc., 543 F.3d 384, 392 (7th Cir.2008); Thorogood v. Sears, Roebuck and Co., 547 F.3d 742, 746 (7th Cir.2008); Utica Mut. Ins. Co. v. Vigo Coal Co., Inc., 393 F.3d 707, 716 (7th Cir.2004). First Bank has consistently maintained that the loans are in default because payments were not timely made, but had added additional grounds of default as well, thus not reversing its position but expanding it. We need not determine whether such an action can be considered a change of position under the mend the hold doctrine, because the Illinois courts have held that the mend the hold doctrine cannot be applied absent a showing of detriment or unfair surprise. United Farm Family Mut. Ins. Co. v. Frye, 381 Ill.App.3d 960, 320 Ill.Dec. 639, 887 N.E.2d 783, 790 (Ill. App. 4 Dist.2008); Trossman v. Philipsborn, 373 Ill.App.3d 1020, 312 Ill.Dec. 156, 869 N.E.2d 1147, 1164 (Ill.App. 1 Dist. 2007); Grinnell Mut. Reinsurance Co. v. LaForge, 369 Ill.App.3d 688, 309 Ill.Dec. 235, 863 N.E.2d 1132, 1141 (Ill.App. 4 Dist. 2006). The Cimerrings have made no argument to this court that the additional grounds of default resulted in such detriment or unfair surprise, nor is any apparent on the record. In fact, the record indicates the opposite. Avram Cimerring pled guilty on June 7, 2005. On July 8, 2005, the Cimerrings signed an amendment to the loan agreement increasing the loan amount, at which time they represented that no conditions of default existed of *9which they were aware. Avram Cimerring was, of course, aware of his own guilty plea, and the existence of the default provision related to the filing of criminal charges. There is no indication of detriment or unfair surprise here, and therefore the Cimerrings have failed to demonstrate a basis for application of the mend the hold doctrine. The only remaining argument, that the default was not a continuing one, was not raised in the district court and is waived. Metzger v. Illinois State Police, 519 F.3d 677, 681-682 (7th Cir.2008); Mote v. Aetna Life Ins. Co., 502 F.3d 601, 608 n. 4 (7th Cir.2007).
The decision of the district court granting summary judgment in favor of First Bank is AFFIRMED.
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*11ORDER
Clarence Hendrix appeals from the denial of his motion for a new trial. We affirmed his conviction and sentence on a drug distribution charge, United States v. Hendrix, 482 F.3d 962, 966-67 (7th Cir.2007), but he now contends that he is entitled to a new trial because he has discovered new information that he believes discredits both a government agent and a confidential informant and thus casts doubt on the integrity of the government’s case. The district court denied the motion after concluding that the evidence was neither newly discovered nor material to the jury’s verdict. We affirm.
We upheld the judgment and sentence in a published opinion, Id. at 482 F.3d at 966-67, so we presume familiarity with the facts. As relevant here, Hendrix is in prison because he sold crack cocaine in 2002 to a confidential informant named Isadore Gee. The government captured the exchange on audio and video surveillance, and the recordings — supplemented by the observations of the investigating officers and recordings of two previous encounters between Gee and Hendrix— formed the basis for Hendrix’s conviction.
At trial the government introduced a recording of the transaction. While listening to the recording at trial, FBI Special Agent Michael Culloton identified the voices of Hendrix and Gee; other voices he did not recognize. A transcript of the recording bore the initials of Culloton and Gee, and attributed the words “Go ahead” to someone named “James Lee,” who turned out to be Hendrix’s brother, James Lee Carr. Upon questioning by defense counsel, Culloton testified that Gee had identified Lee’s voice in the recording. Gee, for various reasons, was never called to testify. The jury convicted Hendrix of crack distribution. He was sentenced to 20 years’ imprisonment and we affirmed.
In 2007 Hendrix moved under Federal Rule of Criminal Procedure 33 for a new trial based on what he described as newly discovered evidence that his brother James Lee, who Gee claimed was present during the transaction, was in fact incarcerated. Hendrix argued that the government knew or should have known that Agent Culloton presented perjured testimony about James Lee, and that the inaccurate statement influenced the verdict by depriving the jury of material information about the credibility of Gee and Culloton. He appended to his motion a document from the Illinois Department of Corrections verifying that Lee was in prison until 2003 — nearly a year after the controlled sale. The district court denied the motion as untimely, but we noted that the motion had been filed within three years after the verdict, and then vacated the judgment. United States v. Hendrix, 280 Fed.Appx. 540 (7th Cir.2008).
On remand the district court denied the motion, explaining that the evidence that the voice on the recording was not James Lee was not newly discovered because Hendrix knew about it by the first day of trial. Further, the court noted that this was at worst an agent’s mistake: Agent Culloton never vouched that James Lee was the man behind the door but merely repeated what he was told by Gee. In any event, Culloton’s mistake was immaterial: the identity of the man who opened the door for the cooperating witness did not affect the strength of the government’s case against Hendrix.
On appeal Hendrix renews his argument that his evidence was newly discovered and material. He thus contends that the district court abused its discretion by denying his motion for a new trial.
The parties disagree about the appropriate test to apply in evaluating a motion for *12new trial based on newly discovered evidence. Hendrix favors a test reserved by the Supreme Court for rare cases involving the known presentation by the government of perjured testimony. See United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Under Agurs, a new trial is warranted where 1) the government presented perjured testimony; 2) the government knew or should have known of the perjury; and 3) there is some likelihood that the testimony could have affected the verdict. See United States v. Ogle, 425 F.3d 471, 476 (7th Cir. 2005) (citing Agurs, 427 U.S. at 103, 96 S.Ct. 2392.) The government counters that the statement was neither perjurious nor offered with knowledge that it was false, and so encourages us to use the more stringent, four-part test for evaluating false testimony that was presented unintentionally. Under that test, a new trial is warranted if the false statement 1) came to light only after the trial; 2) could not have been discovered by the defendant sooner with reasonable effort; 3) was material; and 4) likely would have resulted in an acquittal had it not been introduced to the jury. Ogle, 425 F.3d at 476; United States v. Mitrione, 357 F.3d 712, 717-18 (7th Cir.2004), vacated on other grounds, Mitrione v. United States, 543 U.S. 1097, 125 S.Ct. 984, 160 L.Ed.2d 988 (2005).
We need not choose between these slightly different tests because each requires finding that a witness’s false testimony affected the jury’s verdict. Here the weight of the evidence of Hendrix’s guilt was so overwhelming that the jury would have convicted him with or without Cullo-ton’s testimony. The jury reached its verdict after watching a recording that looked and sounded like a drug deal. The government’s case was circumstantial but still solid: the tapes indicated that after Gee asked Hendrix for the “same thing” — code, the government argued, for a specific quantity of drugs — Hendrix told Gee he could find what he was looking for wrapped in a napkin on the front porch. Gee proceeded to the porch, where he sat in the same place Hendrix had sat moments before, took something white off the bench, and placed it in his pocket. Gee later turned over to federal agents a paper towel containing more than 50 grams of crack.
Hendrix argues that evidence suggesting that Gee falsely identified James Lee would have discredited Gee as a confidential informant. He reasons that had the jury cause to discredit Gee, they may have been more likely to finger him rather than Hendrix as the source of the crack, particularly since Gee, while off camera, made unauthorized visits to his girlfriend’s apartment. We rejected this argument on direct appeal; Gee, we acknowledged, might have obtained the crack during one of his off-camera visits, but the mere possibility of this was too abstract to create a reasonable doubt that he bought the crack from Hendrix, especially in light of the overwhelming evidence suggesting otherwise. Hendrix, 482 F.3d at 966. A different identity attached to a voice on the recording adds nothing to disturb our earlier conclusion.
In light of our conclusion here, we need not reach Hendrix’s remaining arguments.
AFFIRMED.
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*14ORDER
Michael Brown sued North Chicago and Waukegan Township under the Americans with Disabilities Act, see 42 U.S.C. §§ 12101-213, but a jury found against him. Brown appeals an evidentiary ruling that excluded a letter written by a North Chicago commissioner. The district court was well within its discretion under Federal Rule of Evidence 403 to determine that the probative value of the letter was substantially outweighed by a risk of unfair prejudice, and in any event, the letter would not have affected the outcome of the trial. We affirm.
Brown’s suit stemmed from his participation in EarnFare, a voluntary program administered by the Illinois Department of Human Services that allows eligible food-stamp recipients to gain skills and become self-sufficient by “working off’ the value of their benefits each month. Waukegan Township determines EarnFare eligibility and assigns participants to worksites. Waukegan Township assigned Brown to North Chicago’s Street Department to perform manual labor.
At trial, the parties disputed what da/ Brown notified the Street Department of his disability and what tasks the Street Department assigned Brown to perform during his short tenure. Brown testified that before starting work on October 1, 2003, he informed the Street Department commissioner that he suffered from a heart condition and was assured that he would only be picking up litter. But in fact, Brown continued, he was maliciously given more arduous tasks that he couldn’t perform because of his heart condition. The last straw occurred on October 8, Brown explained, when the Street Department foreman instructed him to separate pieces of asphalt from pieces of concrete. According to Brown, he went straight to the commissioner to remind him of his disability and to request, as an accommodation, that his assignments be limited to picking up litter.
North Chicago’s witnesses challenged Brown’s story. The foreman testified that he never instructed Brown to separate asphalt from concrete. The commissioner testified that Brown did not inform him that he suffered from a disability until October 8 and never requested an accommodation.
The parties agreed that after Brown told the commissioner about his disability on October 8, the commissioner immediately notified Waukegan Township, which told Brown to reapply to EarnFare because his current application did not disclose any disabilities. Brown never reapplied to EarnFare or returned to the Street Department.
In order to bolster his disputed testimony about his assignments and impeach the credibility of North Chicago’s witnesses, Brown sought to introduce into evidence a letter that the commissioner wrote to the Waukegan Township supervisor in January 2004. The letter was written in response to a notice the commissioner received from the Equal Employment Opportunity Commission concerning Brown’s allegations of discrimination and contained following sentence: “On October 8th, the Street Department Foreman, Gabriel Albarran, gave Mr. Brown a job assignment to separate black top and concrete chunks.”
Waukegan Township objected, and the district court ruled that the commissioner’s letter should be excluded under Federal Rule of Evidence 403 because it was written three months after the events giving rise to Brown’s allegations and because it might prejudice Waukegan Township by suggesting a cover-up conspiracy between the two defendants. Nevertheless, the *15district court allowed Brown to question the commissioner about the facts contained in the letter. The commissioner testified that he had no personal knowledge whether the foreman had assigned Brown to separate asphalt from concrete. The district court denied Brown’s request to impeach the commissioner by introducing the letter, describing its contents as hearsay.
Brown argues on appeal that the district court erred because the commissioner’s letter was admissible under Federal Rule of Evidence 801(d)(2)(D). That rule provides that a statement is not hearsay if it was made by an agent of the party against whom it is offered, concerns a matter within the scope of the agency, and was made during the existence of the agency. See Mister v. Ne. Ill. Commuter R.R. Corp., 571 F.3d 696, 698-99 (7th Cir.2009).
But evidence that is admissible under Rule 801(d)(2)(D) may nevertheless be excluded under Rule 403 if its probative value is substantially outweighed by a risk of unfair prejudice. Mister, 571 F.3d at 699. The district court gave little explanation for excluding the commissioner’s letter under Rule 403, but we do not think it was an abuse of discretion to sustain Waukegan Township’s objection. It was not unreasonable for the district court to fear that the letter could confuse the jury and unfairly prejudice Waukegan Township by suggesting that the township knew about or concealed evidence regarding Brown’s disputed tenure at the Street Department. See Finchum v. Ford Motor Co., 57 F.3d 526, 532 (7th Cir.1995) (upholding exclusion under Rule 403 of evidence suggesting defendant had engaged in inappropriate conduct not at issue). And the probative value of the letter is limited because it was prepared three months after the events it describes, see Grassi v. Info. Res., Inc., 63 F.3d 596, 602 (7th Cir.1995) (upholding exclusion under Rule 403 of records prepared six months after events at issue), and because the relevant passage is based on hearsay and appears only in a paragraph summarizing Brown’s allegations, see Mister, 571 F.3d at 699. These concerns adequately justify the district court’s determination that the letter should be excluded under Rule 403.
But even if Brown could show that the district court erred by excluding the commissioner’s letter, his appeal would still fail because any error was harmless and would not have affected the outcome of the trial. See Alverio v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 943 (7th Cir.2001). As we explained above, the probative value of the letter is scant at best. We must strain to interpret the relevant passage as the damning admission Brown urges. We do not think the jury would have credited Brown’s testimony about the disputed assignments if only the commissioner’s letter had been admitted.
Brown’s remaining arguments are quickly dismissed. There is no Sixth Amendment right to counsel in a civil case. Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001). Any claim Brown may have against Waukegan Township under the Freedom of Information Act was not presented at trial and is not properly before this court. And although Brown lists other issues for review, he does not develop them in his opening brief, so those arguments are waived. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.2009).
AFFIRMED.
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ORDER
Miguel Mariscal pleaded guilty to conspiracy to distribute cocaine and marijuana, conspiracy to possess cocaine and marijuana with the intent to distribute, and possession of cocaine with the intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 240 months’ imprisonment. Mariscal appeals, but his appointed counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous issues to raise on Mariscal’s behalf. We confine our review to the potential issues identified in counsel’s facially adequate brief and Mariscal’s response under Circuit Rule 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We grant counsel’s motion to withdraw and dismiss Mariscal’s appeal.
Mariscal’s plea agreement contained a waiver precluding him from appealing or challenging his conviction or sentence under any provision of federal law unless he was sentenced to a term of imprisonment above his guidelines range. It also contained an estimate of Mariscal’s offense level and criminal-history category under the sentencing guidelines. But both Mar-iscal and the government were surprised by the presentence investigation report, which calculated an offense level and criminal-history category greater than either party had anticipated. Mariscal thought his lawyer had misled him and moved to withdraw the plea. The district court appointed a new lawyer, and after consulting with him, Mariscal changed his mind and withdrew his motion. The district court adopted the presentence investigation report’s calculations, granted the government’s motion for a below-guidelines sentence in recognition of the substantial assistance Mariscal had provided, and sentenced Mariscal to 240 months’ imprisonment.
Mariscal advised counsel that he has changed his mind again and now wishes to withdraw his plea, so counsel properly considers challenging whether the plea was knowing and voluntary. We agree with counsel that the only possible error the district court committed during the change-of-plea colloquy was neglecting to inform Mariscal of his right to persist in *17his plea of not guilty. See Fed.R.Crim.P. 11(b)(1)(B). But the error is harmless because, having previously moved to withdraw his guilty plea, Mariscal already knew the information the district court omitted. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001). Mariscal’s plea agreement also advised him of this right.
Counsel next considers challenging Mar-iscal’s sentence. But as counsel properly observes, Mariscal’s appeal waiver forecloses any challenge to his sentence except a claim that it exceeded the statutory maximum, that the district court relied on an unconstitutional factor, or that the appeal waiver itself was the product of ineffective assistance. See United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir.2005); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999).
Mariscal’s response to counsel’s motion does contain allegations that the lawyer who negotiated the appeal waiver provided ineffective assistance. An ineffective-assistance claim, however, is best raised on collateral review, where a complete record can be developed. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
We GRANT counsel’s motion to withdraw and DISMISS Mariscal’s appeal.
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ORDER
Dexter Anderson moved to reduce his prison sentence under 18 U.S.C. § 3582(c)(2) after the Sentencing Commission retroactively lowered the base offense level applicable to his convictions. The district court denied the motion. We affirm that decision.
*18In 2004 a jury found Anderson guilty of participating in a crack conspiracy in Green Bay, Wisconsin. The district court calculated a total offense level of 44 and a criminal history category of III, which yielded a guidelines range of life imprisonment. Applying our holding in United, States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court declined to treat the guidelines as mandatory, concluding instead that a life sentence was too severe in the absence of violent conduct. Still, the court added, a sentence above the statutory minimum was necessary to reflect Anderson’s aggravating conduct: Anderson had tried to retrieve a loaded gun during his arrest and also lied at trial about the extent of his involvement in the conspiracy. The court imposed a total of 25 years’ imprisonment, 5 years above the 20-year statutory minimum applicable because of the drug quantity and Anderson’s criminal history. We affirmed the judgment on direct appeal. United States v. Anderson, 450 F.3d 294 (7th Cir.2006).
In 2008 Anderson moved for a lower sentence due to the retroactive amendments applicable to his crack offenses. See U.S.S.G. Supp. to App. C 226-31, 253 (2009) (Amendments 706 & 713). Under the amended guidelines Anderson’s total offense level is two levels lower and his imprisonment range is 30 years to life; he argued for a comparable reduction of his prison sentence. The district court denied the motion, explaining that Anderson’s original sentence had already been lowered because of the difference in offense levels for powder cocaine and crack cocaine. The court added that dropping the term any closer to the statutory minimum would require overlooking Anderson’s conduct during and after his arrest.
On appeal Anderson argues that the district court abused its discretion. Although the bottom of his modified imprisonment range is higher than the sentence imposed — 30 years compared with 25— Anderson still contends that he is entitled to benefit from the retroactive amendments. He asserts that he has been on good behavior since he was sentenced, and that he finally came around and accepted responsibility for his crimes at the hearing on his § 3582(c)(2) motion. He contends that these factors, combined with the different offense levels for offenses involving like amounts of powder and crack cocaine, gave the district court a compelling basis to resentence him.
We are satisfied that declining to do so was not an abuse of discretion. After considering applicable factors set forth in 18 U.S.C. § 3553(a), a district court has discretion to reduce a term of imprisonment if a reduction would be consistent with the policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2); United States v. Young, 555 F.3d 611, 613-14 (7th Cir.2009); United States v. Woods, 581 F.3d 531, 539 (7th Cir.2009). Those statements instruct the court to consider the movant’s postsen-tencing conduct and the danger to the community posed by releasing him early. U.S.S.G. § lB1.10(b)(2) & cmt. n. l(B)(ii), (B)(iii). After reviewing the record, the district court concluded that Anderson’s below-range sentence already accounted for the difference in offense levels between crack and powder cocaine. The court rejected Anderson’s argument that he should be rewarded for his good behavior in prison and for accepting responsibility; the judge questioned Anderson’s sincerity and opined that further reducing his prison term would diminish the severity of his aggravating conduct contrary to the aims of § 3553(a). This explanation was sufficient. See United States v. Johnson, 580 *19F.3d 567, 570 (7th Cir.2009); United States v. Harris, 490 F.3d 589, 597 (7th Cir.2007).
AFFIRMED.
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ORDER
Terance Taylor was arrested less than two weeks after he entered a Milwaukee bank with a pellet gun and left with more than $130,000 in stolen cash. Dominique Watson, who planned the heist and drove the getaway car, was also arrested. Watson and Taylor pleaded guilty to armed bank robbery, see 18 U.S.C. § 2113(a), (d), and both men received prison sentences within their respective Guidelines range, Watson for 135 months’ imprisonment, Taylor for 96 months. The court also ordered restitution, to be paid jointly and severally by Taylor and Watson, in the amount of $116,881.86. We consolidated their appeals, and in both cases their appointed counsel moved to withdraw because they believe any basis for appealing would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Since both defendants declined to submit statements under Circuit Rule 51(b) explaining why they believe their appeals have merit, we limit our review to issues identified in the facially adequate briefs. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Neither defendant has expressed a desire to withdraw his guilty plea, so their lawyers properly decline to explore a challenge to the voluntariness of the pleas or the adequacy of the plea colloquies. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
We agree with counsel that any challenge to the reasonableness of the defendants’ sentences would be frivolous. Watson and Taylor received prison terms within properly calculated Guidelines ranges, so we would presume that their sentences were reasonable. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Both lawyers assert, and we agree, that there is no *20evidence in the record to rebut those presumptions. Moreover, the district court gave sufficient consideration to the 18 U.S.C. § 3558(a) sentencing factors and supported the ultimate sentences with adequate statements of reasons. In both cases the court explained that within-range sentences were necessary to deter similar conduct in the future, and to reflect the seriousness of the crime, which in this case endangered the life of a bank teller, who was held hostage at gunpoint.
Finally, as both attorneys point out, it would be frivolous to challenge the district court’s restitution orders on the basis that the court failed to set a schedule of payments to be made during the defendants’ incarceration. Congress requires sentencing judges to set payment schedules for defendants who cannot meet restitution obligations up front. See 18 U.S.C. § 3664(f)(2). Precisely when the schedule begins, however, is left to the court. See United States v. Sawyer, 521 F.3d 792, 795 (7th Cir.2008). Here the court set payment schedules for both defendants to begin upon their release. This was a proper exercise of the court’s discretion. Id.
Accordingly, we GRANT the motions to withdraw and DISMISS the appeal. Watson’s motion to appoint new counsel is DENIED.
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ORDER
The district court, relying on Jones v. Takaki, 38 F.3d 321 (7th Cir.1994), dismissed the plaintiffs’ complaint in this case. On appeal, we overruled Jones, explaining, “[0]ur fresh look at this issue causes us to conclude that given the length of time which can result between the seizure of property and the opportunity for an owner to contest the seizure under the DAFPA, some sort of mechanism to test the validity of the retention of the property is required.” Smith v. City of Chicago, 524 F.3d 834, 838 (7th Cir.2008).
We remanded the case to the district court to “fashion appropriate procedural relief consistent with this opinion.” Id. Our opinion, because it overruled Jones, was circulated among all active members of the court pursuant to Circuit Rule 40(e). None of the judges voted to rehear the case en banc. The case was not moot when we entered our judgment reversing the district court.
Subsequently, the Supreme Court granted the defendants’ petition for a writ of certiorari. But then, prior to oral arguments, the last of the named plaintiffs’ seized property was returned to her. The Supreme Court therefore held that the case (and thus the appeal) was moot. It vacated our judgment and remanded the case to us with instructions to dismiss. Alvarez v. Smith, — U.S.-, 130 S.Ct. 576, — L.Ed.2d-(2009). The Court cited United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), as precedent for the vacatur order. Alvarez, 130 S.Ct. at 578, 581-83. The Court did not address the merits of the plaintiffs’ due process claim. Thus, neither the plaintiffs nor the defendants had the benefit of a full and final review of the due process issue that is at the core of this case.
When parties to a controversy cannot secure final review of the merits because the case became moot before the Supreme Court could address the merits, the appropriate relief, it seems, is an order vacating all prior judgments, without prejudice to any party’s right to proceed or defend. See Munsingwear, 340 U.S. at 40, 71 S.Ct. 104. When, through happenstance, a case becomes moot before final review is possible, vacatur is necessary to clear “the path for future relitigation of the issues between the parties, preserving the rights of all parties, while prejudicing none by a decision which ... was only preliminary.” Alvarez, 130 S.Ct. at 581 (quoting Munsingwear, 340 U.S. at 40, 71 S.Ct. 104) *22(internal quotations omitted). Considerations of “equity and fairness,” Alvarez, 180 S.Ct. at 582 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 518 U.S. 18, 25-26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (internal quotations omitted)), dictate that the parties start over, without prejudice, when final review is not possible through no fault of the parties themselves.
For these reasons, we believe the best course of action for us to take at this time is to vacate our judgment and to remand the case to the district court for consideration, or reconsideration, of issues that are not moot.
SO ORDERED.
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ORDER
Following a two-day jury trial at which he represented himself, Kenneth Thomas was convicted of conspiracy to distribute and possess with intent to distribute cocaine and marijuana, 21 U.S.C. §§ 846, 841(a)(1), and possession with intent to distribute crack cocaine, id. § 841(a)(1). The district court sentenced him within the guidelines imprisonment range to a total of 300 months. Thomas appeals, but his appointed lawyers seek to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because they conclude that the appeal is frivolous. Thomas opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Thomas’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Thomas first landed on the government’s radar in July 2007, when an informant fingered him as a drug dealer. During a recorded phone call, the informant arranged to buy crack from Thomas at his house in East St. Louis, Illinois. DEA agents then orchestrated a controlled buy at the residence, followed by three more over the following two months. Those transactions supplied the probable cause for a warrant to search Thomas’s home. Before executing that warrant, the agents arrested Thomas at his parole office and, after giving him Miranda warnings, escorted him to the house, where they found marijuana, a hat concealing a baggy with 12.3 grams of crack, sandwich bags typically used to package drugs, a safe, and a digital scale with crack residue on it. Agents also discovered that the house was monitored by a surveillance system.
After the search Thomas accompanied the agents to their office. Once there he received fresh Miranda warnings and made a series of incriminating admissions. According to the testimony of the agents at trial, Thomas admitted that, between May and July 2007, he “brokered” a total of approximately 30 kilograms of cocaine for a man named Don Johnson. (The agents did not say whether Thomas elaborated on how or with whom he brokered the deals.) Thomas added that he also laundered money for Johnson. Johnson had given him $15,500 in currency to deposit incrementally into the bank account of a third man, though he succeeded in depositing only $12,000 before bank employees became suspicious. According to the agents, Thomas volunteered his dealings with Johnson, apparently because he hoped to exchange his cooperation for favorable consideration down the line.
During the interview Thomas also volunteered that the crack seized from his home was supplied by another dealer named Fontez Combs. He said he bought roughly 2.5 kilograms of crack and powder cocaine from Combs over the previous three months, as well as roughly 1.5 kilograms of cocaine from yet another dealer named Fred Rayford.
After agreeing to cooperate with the agents, Thomas was released, but the deal was short-lived. The agents first hoped that he could help them snare Combs (who was known to be a large-scale dealer), but Combs, apparently aware of the trap, would have nothing to do with Thomas. Later that month Thomas notified one of the agents, Chris Mueth, that Rayford had *24just received a shipment of cocaine and was seeking buyers. The next day, though, Thomas abruptly called the agent and reported that Rayford had come to his house the night before and dropped off a quantity of crack that weighed 164 grams. With the agents watching, Thomas set up a meeting with Rayford, ostensibly to pay him for the crack, but it quickly became clear — as the agents already suspected— that Rayford had not been the source of the drugs. Thomas’s cooperation agreement was terminated, and he was arrested again in March 2008.
The basis of the government’s conspiracy charge was Thomas’s involvement with Don Johnson. By his own admission, Thomas had brokered multiple cocaine sales for Johnson in the spring and summer of 2007. Johnson, who was charged for his role in a broader conspiracy with roots in Mexico, testified against Thomas as part of a cooperation agreement with the government. Johnson for the most part confirmed Thomas’s admissions, though he did not characterize Thomas as a broker. Instead he described Thomas as his sole distributor. Johnson testified that he had fronted Thomas, one kilogram at a time, about 39 kilograms of cocaine (not 30 kilograms, as Thomas had told the agents). He also added that, in addition to cocaine, he fronted Thomas between 40 and 120 pounds of marijuana, one pound at a time, in the early part of 2007. The jury found Thomas guilty of conspiracy to distribute and possess with intent to distribute cocaine and marijuana and returned a special verdict finding that the conspiracy involved at least five kilograms of cocaine. The jury also found Thomas guilty of possession with intent to distribute crack, based on the crack uncovered during the search of his home.
In their Anders submission, counsel first consider whether Thomas might challenge the district court’s decision to permit him to represent himself at trial, a decision we would review for abuse of discretion. See United States v. Berry, 565 F.3d 385, 389 (7th Cir.2009). A criminal defendant may waive his right to counsel and proceed pro se so long as the waiver is knowing and intelligent. United States v. Johnson, 534 F.3d 690, 693-94 (7th Cir.2008); United States v. Avery, 208 F.3d 597, 601 (7th Cir.2000). Although there is no formal checklist of warnings, the defendant must “be made aware of the dangers and disadvantages of self-representation” so that “his choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (internal quotation marks and citation omitted). To determine whether Thomas made an informed choice to represent himself, we would consider (1) whether and to what extent the district court conducted a formal hearing on the issue, (2) other evidence in the record that establishes whether Thomas understood the risks of self-representation, (3) Thomas’s background and experience, and (4) the context of Thomas’s decision. See United States v. Alden, 527 F.3d 653, 660 (7th Cir.2008); United States v. England, 507 F.3d 581, 586 (7th Cir.2007).
We agree with counsel that it would be frivolous for Thomas to challenge the district court’s decision to permit him to proceed pro se. The court conducted a hearing on Thomas’s request to represent himself and thoroughly admonished Thomas about the dangers of self-representation. The court warned Thomas about the complexity of federal conspiracy law, alerted him that the proceedings would differ from those he had experienced in state court, and cautioned him that being incarcerated might impede his access to discovery. The court suggested that Thomas would likely fare much better with the assistance of his attorney, *25whom the district judge regarded as “one of the most accomplished lawyers” in the pool of court-appointed counsel. The court inquired about Thomas’s educational background, and Thomas reported that he had studied criminal justice for two years at a community college, earning a B average. He also has an extensive criminal history including more than a dozen arrests and state prosecutions since 1980, and he told the court he was once acquitted by a state jury. Although the court might have pressed Thomas further on his motivation for waiving counsel — Thomas explained only that his attorney had not spent enough time discussing the case with him and would give him information about only two of his codefendants — the court’s warnings, combined with Thomas’s extensive exposure to the criminal-justice system, would satisfy us that he understood the serious nature of the proceedings and the risks of representing himself. See Johnson, 534 F.3d at 694; United States v. Todd, 424 F.3d 525, 533 (7th Cir.2005).
Counsel next evaluate whether Thomas could raise a nonfrivolous challenge to the district court’s evidentiary rulings. Counsel first consider whether Thomas could contest the adverse ruling on his motion to suppress the incriminating statements he made to the DEA agents after his arrest— statements that put the agents on notice of Thomas’s involvement with Johnson and served as the basis for the conspiracy charge. At the hearing on Thomas’s motion, Agent Mueth testified that he gave Miranda warnings when Thomas was first arrested and again after Thomas accompanied the agents back to their office following the search of his home. Before speaking to the agents, Thomas initialed and signed a written Miranda waiver, which the government introduced at the hearing. Thomas did not cross-examine Mueth or offer any testimony of his own to cast doubt on the voluntariness of his statements; he argued only that Mueth’s testimony was “hearsay” and insisted that he never spoke at all to Mueth about drug activity. In short, Thomas’s contention was that Mueth was lying about the extent and content of the postarrest interview; he was not contending that the interview was compelled or involuntary. We thus agree with counsel that any challenge to the district court’s decision to admit his post-arrest statements would be frivolous.
Counsel next consider whether Thomas could challenge the district court’s refusal to subpoena Louis McCottrell, another player in the larger conspiracy. The Sixth Amendment guarantees a criminal defendant the right to compulsory process to secure the appearance at trial of a witness whose testimony would be “material and favorable to his defense.” United States v. Valenzuela-Bemal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982); see also Fed.R.Crim.P. 17(b) (providing that district court must subpoena witness for indigent defendant if necessary to “an adequate defense”). McCottrell initially was a rung above Don Johnson on the conspiracy’s ladder. McCottrell received shipments of cocaine and marijuana from a supplier in Mexico, which Johnson offloaded and stored for him until McCottrell’s arrest in December 2006. After that, Johnson began receiving drugs directly from the supplier. But McCottrell had pleaded guilty to drug-conspiracy charges in February 2007, three months before Thomas began receiving cocaine from Johnson, and the government represented that it would not be calling McCottrell as a witness because his involvement with Thomas was too remote to be relevant in this case. Thomas offered an indecipherable explanation as to how McCottrell’s testimony could help him, and thus we agree with counsel that it would be frivolous to *26assert that the district court abused its discretion in declining to subpoena McCottrell. See United, States v. Williamson, 202 F.3d 974, 978-80 (7th Cir.2000).
It would also be frivolous to renew any of Thomas’s evidentiary objections at trial. Thomas repeatedly objected on hearsay grounds to the agents’ testimony recounting his postarrest statements, but these objections were unfounded because a defendant’s admissions are not hearsay when offered against him. See Fed.R.Evid. 801(d)(2)(A); United States v. Simpson, 479 F.3d 492, 502 n. 2 (7th Cir.2007). Also unfounded was Thomas’s objection when the court permitted Agent Mueth to identify Thomas’s voice on a telephone recording introduced by the government. Thomas challenged the authentication of the recording on the ground that Mueth is not an expert in voice identification, but lay-opinion testimony is acceptable to establish a speaker’s identity, and Mueth’s extensive contact with Thomas gave him the requisite familiarity with Thomas’s voice to identify it. See Fed.R.Evid. 901(b)(5); Fed.R.Evid. 901(b) advisory committee’s note Example (5); United States v. Recendiz, 557 F.3d 511, 527 (7th Cir.), cert. denied, — U.S.-, 130 S.Ct. 340, 175 L.Ed.2d 138 (2009). Thomas’s remaining evidentiary objections were so frivolous as not to require any further discussion.
Next, counsel evaluate whether Thomas could argue that the government constructively amended the indictment because the evidence at trial centered on a period of time shorter than that alleged in the indictment. Thomas did not raise this argument in the district court, so we would review only for plain error. See United States v. Presbitero, 569 F.3d 691, 698 (7th Cir.2009). A constructive amendment occurs when the permissible bases for conviction are broadened beyond those presented to the grand jury. United States v. Blanchard, 542 F.3d 1133, 1143 (7th Cir. 2008). Here, the indictment charged a conspiracy between Thomas and Johnson running from August 2005 until October 2007, but the government’s evidence did not establish any dealings between the two men until 2007. What that means, however, is that Thomas’s involvement in the conspiracy was narrower, not broader, than what was charged in the indictment, and thus there could not have been a constructive amendment. See United States v. Thomas, 520 F.3d 729, 734 (7th Cir.2008); United States v. Duff, 76 F.3d 122, 126 (7th Cir.1996). Counsel contemplates recasting the argument as one that there was a “fatal variance” between the indictment and the evidence produced at trial, but the argument is frivolous under any label. See Blanchard, 542 F.3d at 1142-43; United States v. Bolivar, 532 F.3d 599, 604 (7th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 962, 173 L.Ed.2d 154 (2009).
Counsel next evaluate whether Thomas could challenge the sufficiency of the evidence underlying his convictions. Although Thomas filed a motion for a judgment of acquittal, see Fed.R.CRIm.P. 29(c), he did not supply any particular reason why the evidence is insufficient. Indeed, the evidence supporting Thomas’s conviction for possession with intent to distribute crack cocaine is overwhelming. The government introduced evidence that a confidential informant purchased crack out of Thomas’s home on four occasions over a two-month period, that agents later uncovered at his home 12.3 grams of crack and common tools of the drug trade, and that Thomas admitted the drugs were his. Although Thomas attempted to cast doubt at trial about whether he lived in the house, his own witnesses — including his father and a neighbor — testified that Thomas lived there alone in 2007.
*27Any challenge to the sufficiency of the evidence supporting the conspiracy conviction would also be frivolous. A wholesale customer of a conspiracy is not necessarily a coconspirator, and we repeatedly have cautioned against conflating buyer-seller transactions with conspiracy. United States v. Johnson, 592 F.3d 749, 754-56 (7th Cir.2010); United States v. Kincannon, 567 F.3d 893, 897 (7th Cir.2009); United States v. Colon, 549 F.3d 565, 567-69 (7th Cir.2008). A drug-conspiracy conviction requires proof of an agreement to commit some other crime on top of the drug sale, and thus evidence of standardized transactions, large quantities of drugs, and an ongoing relationship between buyer and seller is, without more, insufficient to sustain a conviction. See Johnson, 592 F.3d at 755-56; Colon, 549 F.3d at 567-68. We have explained, however, that a consignment sale permitting the middleman to return unsold drugs is “quintessential evidence of a conspiracy because it shows that the supplier will not get paid until the middleman resells the drugs.” Johnson, 592 F.3d at 756 n. 5. For the same reason, evidence of sales on credit coupled with large quantities of drugs, repeat purchases, or “ ‘some other enduring arrangement’ ” is sufficient to distinguish a conspiracy from a nonconspiratorial buyer-seller relationship. Id. (quoting United States v. Baker, 905 F.2d 1100, 1106 (7th Cir.1990)).
The evidence at trial was that Johnson provided large quantities of marijuana and cocaine to Thomas in a series of at least 70 standardized transactions. Johnson testified that, when he received a 10-kilogram shipment of cocaine, he “immediately gave Mr. Thomas one of the kilos” and then Thomas “went out, sold it, brought the money back and he received the other nine in increments of one kilogram per transaction.” Whether this method of supplying drugs can be described more fairly as “on consignment” or “on credit” is unclear— Johnson testified that Thomas never had difficulty getting rid of the drugs, and so we do not know what would have happened had he tried to return them unsold. And, according to the uncontested testimony of the agents at trial, Thomas actually characterized his role as that of broker. In any event, the arrangement between Thomas and Johnson sufficiently supports an inference that the men were co-ventur-ers in the distribution of the drugs. Johnson testified that Thomas was his sole cocaine distributor, demonstrating trust and his complete reliance on Thomas to see any proceeds from the sale of the drugs. See Johnson, 592 F.3d at 756 n. 5; United States v. Bustamante, 493 F.3d 879, 885 (7th Cir.2007). Further, the government’s case included evidence that Johnson gave Thomas $15,500 in currency — proceeds from drug transactions — to deposit into a bank account, demonstrating a mutual trust between the men suggestive of much more than a buyer-seller relationship. See Colon, 549 F.3d at 567-68. We thus agree with counsel that it would be frivolous to argue that, on these facts, no rational jury could find Thomas guilty of conspiracy beyond a reasonable doubt. See United States v. Morris, 576 F.3d 661, 665-66 (7th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1313, — L.Ed.2d -(2010).
Finally, counsel consider whether Thomas could challenge his prison sentence. Counsel first ask whether Thomas could dispute the district court’s guidelines calculations. In the presentence investigation report, the probation officer recommended finding Thomas responsible for 228.7 grams of crack cocaine and 39.5 kilograms of powder cocaine. The probation officer converted these amounts to their marijuana equivalents, see U.S.S.G. § 2D1.1, cmt. 10(B), (D), (E), for a total of 12,474 kilograms of marijuana, which *28produced a base offense level of 84. The district court adopted the recommendation.
Thomas objected to the drug-quantity calculation, but we agree with counsel that it would be frivolous to renew the argument on appeal. The basis of Thomas’s conviction for possession with intent to distribute crack was the 12.8 grams of crack that were discovered during the search of his home, and the basis of the conspiracy conviction was the 35.5 kilograms of crack he sold for Don Johnson. (Thomas admitted to- 30 kilograms, but Johnson testified that the amount was slightly more than 39 kilograms. The district court settled on an estimate of 35.5 kilograms.) Although the district court did not make an explicit finding that the remaining uncharged quantities of crack and powder cocaine were sufficiently related to the offenses of conviction, relevant conduct may be used in calculating the base offense level if it is part of the same “common scheme or plan” or “course of conduct” that gave rise to the defendant’s conviction and is established by a preponderance of the evidence. See United States v. Farmer, 543 F.3d 363, 373 (7th Cir.2008); United States v. Wilson, 502 F.3d 718, 721-22 (7th Cir.2007). Here, agents orchestrated four controlled buys of a total of 52.4 grams of crack in the two months preceding the search of Thomas’s home. Thomas also later turned over 164 grams of crack to the agents under suspicious circumstances, and he reported to the agents that he had recently purchased 1.5 and 2.5 kilograms of cocaine, respectively, from Fred Rayford and Fontez Combs. This evidence was enough for the district court to conclude that Thomas was engaged in continuous drug dealing during 2007 and thus that these additional drug quantities were part of the same course of conduct as the offenses of conviction. See Farmer, 543 F.3d at 373; United States v. Panaigua-Verdugo, 537 F.3d 722, 726-27 (7th Cir.2008).
Counsel next consider whether Thomas could challenge the district court’s calculation of his criminal history. Thomas was convicted in 1994 of unlawful possession of a stolen motor vehicle and sentenced to 8 years’ imprisonment. Thomas challenged the inclusion of that conviction in his criminal history on the ground that it was too old, but as counsel correctly point out, any prior sentence of imprisonment exceeding one year and one month that was imposed within 15 years of the commencement of the instant offense counts towards a defendant’s criminal history. See U.S.S.G. § 4A1.2(e)(1); United States v. Gabel, 85 F.3d 1217, 1222-23 (7th Cir.1996).
Lastly, we agree with counsel that any potential challenge to the reasonableness of Thomas’s total prison sentence would be frivolous. After evaluating the sentencing factors in 18 U.S.C. § 3553(a), the district court imposed total imprisonment of 300 months, slightly higher than the midpoint of the properly calculated guidelines range of 262 to 327 months. Counsel have not identified any reason to disturb the presumption of reasonableness that we would apply to this within-guidelines sentence on appeal. See United States v. Mendoza, 576 F.3d 711, 723 (7th Cir.2009). Although the district court did not explicitly address Thomas’s request for a sentence reduction on account of his cooperation with the government, the argument was so weak that it did not require discussion because Thomas never cooperated. See United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.2009) (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). The agents initially released Thomas under an agreement to cooperate, but they promptly terminated the agreement after he lied to them about his crack source. Thomas also asked the district court to reduce his sentence because, he asserted, the seriousness of his criminal *29history had been overstated. But he argued only that sentences he received in 1994 and 1998 were too old to be counted, and we have already explained why that argument is frivolous. Nor did the district court err in rejecting Thomas’s requests for leniency on account of sentencing manipulation or sentencing entrapment. Even assuming, as we recently did in United States v. Knox, 573 F.3d 441, 451-52 (7th Cir.2009), that evidence of sentencing entrapment and manipulation may both be relevant to a district court’s analysis of the § 3553(a) factors, we agree with counsel that it would be frivolous for Thomas to assert that the government abused its discretion by rejecting his requests for leniency on those grounds. As for sentencing entrapment, there was no evidence that “unrelenting government persistence” led Thomas to commit a crime he lacked a predisposition to commit. See United States v. Turner, 569 F.3d 637, 641 (7th Cir.2009) (internal quotation marks and citation omitted). And, to the extent that Thomas asserted that the agents elicited information from him about his transactions with other dealers using false promises of leniency in order to later manipulate his sentence, the agents’ uncon-tradieted testimony at trial was that Thomas offered up that information without any prompting.
That leaves Thomas’s response under Circuit Rule 51(b), in which he proposes to challenge the district court’s use of a special verdict to determine the amount of cocaine, but not the amount of marijuana, involved in the conspiracy. A drug conspiracy involving at least 5 kilograms of cocaine carries a sentence of 10 years’ to life imprisonment, 21 U.S.C. § 841(b)(1)(A)(ii), while a conspiracy involving less than 50 kilograms of marijuana carries a maximum penalty of 5 years’ imprisonment, id. § 841(b)(1)(D). The 40 to 120 pounds of marijuana that Johnson estimated he supplied to Thomas converts to approximately 18 to 54 kilograms. Thomas insists that, when an indictment refers to multiple drugs, a defendant “must be sentenced as if he distributed only the drug carrying the lower penalty,” and thus asserts that if the jury had credited the lower end of Johnson’s marijuana estimate in a special verdict, his statutory maximum prison sentence would have been five years. What Thomas misunderstands, however, is that a special verdict finding that he conspired to distribute less than 50 kilograms of marijuana would not get him off the hook for the cocaine portion of the conspiracy. Once the jury determined that he distributed more than five kilograms of cocaine — making him eligible for life imprisonment — the quantity of other drugs he distributed had no impact on his maximum sentence. See Knox v. United States, 400 F.3d 519, 522 (7th Cir.2005).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
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MEMORANDUM ***
Arizona state prisoner Barry Northcross Patterson appeals pro se from the district court’s summary judgment in his 42 U.S.C. *47§ 198B action alleging constitutional violations related to his kosher meal plan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Beene v. Terhune, 380 F.3d 1149, 1150 (9th Cir.2004), and we affirm.
The district court properly granted summary judgment with respect to Patterson’s Free Exercise claim because he failed to raise a triable issue as to whether defendants’ policy of providing Patterson with a consistent kosher meal plan was reasonably related to a legitimate penological interest. See Shakur v. Schriro, 514 F.3d 878, 886 (9th Cir.2008) (recognizing simplified food service as a legitimate penological interest); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.2001) (explaining that conelusory allegations unsupported by factual data are insufficient to defeat a motion for summary judgment).
The district court properly granted summary judgment with respect to Patterson’s retaliation claim because he failed to raise a triable issue as to whether defendants’ conduct was based on retaliatory motive, rather than legitimate penological goals. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003).
Patterson’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
Petitioner having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 24, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Petitioner’s brief is due on or before February 12, 2010.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torina A. Collis filed a civil action alleging she was terminated in violation of the whistleblower provisions of the Sarbanes-Oxley Act, 18 U.S.C.A. § 1514A' (West Supp.2009). Collis appeals the district court’s order granting summary judgment, for reasons stated from the bench, in favor of the Defendant. Accordingly, we affirm. See Livingston v. Wyeth, Inc., 520 F.3d 344, 351 (4th Cir.2008) (discussing elements needed to establish a retaliation *820claim under the Act). 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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ORDER
Sherman Johnson pleaded guilty to possessing crack with intent to distribute and was sentenced as a career offender to a term of 170 months. In the plea agreement Johnson waived his right to appeal all issues except whether his prior Illinois conviction for aggravated battery qualified as a crime of violence under the career-offender guideline. As the government concedes, circuit precedent controls the outcome here, and so we vacate the sentence and remand.
In the presentence investigation report, the probation officer classified Johnson as a career offender under § 4B1.1 of the sentencing guidelines because of two prior convictions for crimes of violence. Johnson objected that one of the convictions— for aggravated battery — was not a crime of violence under the residual, “otherwise involves” clause of § 4B1.2(a)(2).1 An aggravated battery under Illinois law is committed either by causing great bodily harm, 720 Ill. Comp. Stat. 5/12-4(a), or by performing a simple battery in the presence of a listed aggravating factor, such as being in a public place of accommodation, id. 5/12-4(b)(8). A simple battery can occur either by causing bodily harm, id. 5/12-3(a)(l), or by making contact “of an insulting or provoking nature,” id. 5/12— 3(a)(2). See People v. Ojeda, 397 Ill. App.3d 285, 336 Ill.Dec. 876, 921 N.E.2d 490 (2009). According to the charging document here, Johnson “knowingly made contact of an insulting or provoking nature with [the victim], in that the defendant struck [the victim] in the face with his fist” while in Club Tequila, a public place of accommodation. Johnson noted that he was charged with the part of the statute criminalizing insulting or provoking contact in a public place, not the section prohibiting causing bodily harm. See 720 Ill. Comp. Stat. 5/12-4(b)(8). He argued that the offense should not be categorized as a crime of violence under § 4B1.2(a)(2)’s residual clause because insulting or provoking contact did not encompass the kind of violent and aggressive conduct required by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).
After a hearing, the district court concluded that the aggravated-battery conviction — and specifically Johnson’s act of striking a woman in the face — qualified as *5a crime of violence. As a career offender, Johnson had an advisory guidelines range of 262-827 months. The court’s 170-month sentence was far below the low end of the recommended range. Had Johnson not qualified as a career offender, the guidelines range would have fallen below the statutory minimum of 120 months’ imprisonment, making the statutory minimum the recommended sentence.
After Johnson filed a notice of appeal, we decided United States v. Evans, 576 F.3d 766, 767, 769 (7th Cir.2009), concluding that the defendant’s prior Illinois conviction for aggravated battery — charged as making physical contact of an insulting or provoking nature against a woman known to be pregnant — was not a crime of violence for purposes of the career offender guideline. See 720 Ill. Comp. Stat. 5/12-4(b)(11). In Evans, we noted that the terms “insulting” or “provoking” derived from the common law tort of battery. Battery can be offensive (such as spitting on a person) or forcible (such as pushing a person to the floor) — and only the latter is a crime of violence. 576 F.3d at 768-69. But the statute is not divisible — that is, the same words, “insulting or provoking,” describe both a violent and nonviolent way of committing the crime. Thus, we could examine only which crime the defendant committed, not how he committed that crime. Id. at 769 (citing United States v. Woods, 576 F.3d 400, 407-08 (7th Cir.2009)). And because most insulting or provoking contact with a pregnant woman is not violent, the defendant’s conviction for aggravated battery was not a crime of violence. Evans, 576 F.3d at 769.
Johnson argues that Evans is dispositive because if insulting or provoking contact with a pregnant woman is not a crime of violence, making insulting or provoking contact in a public place also cannot be. He asserts that the district court imper-missibly considered how he committed the crime for more than determining which part of the statute he violated. The government concedes that Evans is indistinguishable from this case. We agree. The presence of a different aggravating factor — a public place rather than a pregnant victim — does not change Evans’s conclusion that insulting or provoking contact, in the ordinary case, is not violent. See Woods, 576 F.3d at 403-06. The kind of insulting or provoking contact Johnson made is irrelevant, and so the district court erred by considering Johnson’s specific acts beyond the extent necessary to determine that Johnson was convicted of making insulting or provoking contact, not causing bodily harm. Johnson’s prior conviction for aggravated battery is not a crime of violence.
Accordingly, the sentence is VACATED and the case is REMANDED for resen-tencing.
. The guidelines define "crime of violence” as any offense under federal or state law punishable by imprisonment of more than one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1), or "is a burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,” U.S.S.G. § 4B1.2(a)(2).
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*11ORDER
Clarence Hendrix appeals from the denial of his motion for a new trial. We affirmed his conviction and sentence on a drug distribution charge, United States v. Hendrix, 482 F.3d 962, 966-67 (7th Cir.2007), but he now contends that he is entitled to a new trial because he has discovered new information that he believes discredits both a government agent and a confidential informant and thus casts doubt on the integrity of the government’s case. The district court denied the motion after concluding that the evidence was neither newly discovered nor material to the jury’s verdict. We affirm.
We upheld the judgment and sentence in a published opinion, Id. at 482 F.3d at 966-67, so we presume familiarity with the facts. As relevant here, Hendrix is in prison because he sold crack cocaine in 2002 to a confidential informant named Isadore Gee. The government captured the exchange on audio and video surveillance, and the recordings — supplemented by the observations of the investigating officers and recordings of two previous encounters between Gee and Hendrix— formed the basis for Hendrix’s conviction.
At trial the government introduced a recording of the transaction. While listening to the recording at trial, FBI Special Agent Michael Culloton identified the voices of Hendrix and Gee; other voices he did not recognize. A transcript of the recording bore the initials of Culloton and Gee, and attributed the words “Go ahead” to someone named “James Lee,” who turned out to be Hendrix’s brother, James Lee Carr. Upon questioning by defense counsel, Culloton testified that Gee had identified Lee’s voice in the recording. Gee, for various reasons, was never called to testify. The jury convicted Hendrix of crack distribution. He was sentenced to 20 years’ imprisonment and we affirmed.
In 2007 Hendrix moved under Federal Rule of Criminal Procedure 33 for a new trial based on what he described as newly discovered evidence that his brother James Lee, who Gee claimed was present during the transaction, was in fact incarcerated. Hendrix argued that the government knew or should have known that Agent Culloton presented perjured testimony about James Lee, and that the inaccurate statement influenced the verdict by depriving the jury of material information about the credibility of Gee and Culloton. He appended to his motion a document from the Illinois Department of Corrections verifying that Lee was in prison until 2003 — nearly a year after the controlled sale. The district court denied the motion as untimely, but we noted that the motion had been filed within three years after the verdict, and then vacated the judgment. United States v. Hendrix, 280 Fed.Appx. 540 (7th Cir.2008).
On remand the district court denied the motion, explaining that the evidence that the voice on the recording was not James Lee was not newly discovered because Hendrix knew about it by the first day of trial. Further, the court noted that this was at worst an agent’s mistake: Agent Culloton never vouched that James Lee was the man behind the door but merely repeated what he was told by Gee. In any event, Culloton’s mistake was immaterial: the identity of the man who opened the door for the cooperating witness did not affect the strength of the government’s case against Hendrix.
On appeal Hendrix renews his argument that his evidence was newly discovered and material. He thus contends that the district court abused its discretion by denying his motion for a new trial.
The parties disagree about the appropriate test to apply in evaluating a motion for *12new trial based on newly discovered evidence. Hendrix favors a test reserved by the Supreme Court for rare cases involving the known presentation by the government of perjured testimony. See United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Under Agurs, a new trial is warranted where 1) the government presented perjured testimony; 2) the government knew or should have known of the perjury; and 3) there is some likelihood that the testimony could have affected the verdict. See United States v. Ogle, 425 F.3d 471, 476 (7th Cir. 2005) (citing Agurs, 427 U.S. at 103, 96 S.Ct. 2392.) The government counters that the statement was neither perjurious nor offered with knowledge that it was false, and so encourages us to use the more stringent, four-part test for evaluating false testimony that was presented unintentionally. Under that test, a new trial is warranted if the false statement 1) came to light only after the trial; 2) could not have been discovered by the defendant sooner with reasonable effort; 3) was material; and 4) likely would have resulted in an acquittal had it not been introduced to the jury. Ogle, 425 F.3d at 476; United States v. Mitrione, 357 F.3d 712, 717-18 (7th Cir.2004), vacated on other grounds, Mitrione v. United States, 543 U.S. 1097, 125 S.Ct. 984, 160 L.Ed.2d 988 (2005).
We need not choose between these slightly different tests because each requires finding that a witness’s false testimony affected the jury’s verdict. Here the weight of the evidence of Hendrix’s guilt was so overwhelming that the jury would have convicted him with or without Cullo-ton’s testimony. The jury reached its verdict after watching a recording that looked and sounded like a drug deal. The government’s case was circumstantial but still solid: the tapes indicated that after Gee asked Hendrix for the “same thing” — code, the government argued, for a specific quantity of drugs — Hendrix told Gee he could find what he was looking for wrapped in a napkin on the front porch. Gee proceeded to the porch, where he sat in the same place Hendrix had sat moments before, took something white off the bench, and placed it in his pocket. Gee later turned over to federal agents a paper towel containing more than 50 grams of crack.
Hendrix argues that evidence suggesting that Gee falsely identified James Lee would have discredited Gee as a confidential informant. He reasons that had the jury cause to discredit Gee, they may have been more likely to finger him rather than Hendrix as the source of the crack, particularly since Gee, while off camera, made unauthorized visits to his girlfriend’s apartment. We rejected this argument on direct appeal; Gee, we acknowledged, might have obtained the crack during one of his off-camera visits, but the mere possibility of this was too abstract to create a reasonable doubt that he bought the crack from Hendrix, especially in light of the overwhelming evidence suggesting otherwise. Hendrix, 482 F.3d at 966. A different identity attached to a voice on the recording adds nothing to disturb our earlier conclusion.
In light of our conclusion here, we need not reach Hendrix’s remaining arguments.
AFFIRMED.
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*14ORDER
Michael Brown sued North Chicago and Waukegan Township under the Americans with Disabilities Act, see 42 U.S.C. §§ 12101-213, but a jury found against him. Brown appeals an evidentiary ruling that excluded a letter written by a North Chicago commissioner. The district court was well within its discretion under Federal Rule of Evidence 403 to determine that the probative value of the letter was substantially outweighed by a risk of unfair prejudice, and in any event, the letter would not have affected the outcome of the trial. We affirm.
Brown’s suit stemmed from his participation in EarnFare, a voluntary program administered by the Illinois Department of Human Services that allows eligible food-stamp recipients to gain skills and become self-sufficient by “working off’ the value of their benefits each month. Waukegan Township determines EarnFare eligibility and assigns participants to worksites. Waukegan Township assigned Brown to North Chicago’s Street Department to perform manual labor.
At trial, the parties disputed what da/ Brown notified the Street Department of his disability and what tasks the Street Department assigned Brown to perform during his short tenure. Brown testified that before starting work on October 1, 2003, he informed the Street Department commissioner that he suffered from a heart condition and was assured that he would only be picking up litter. But in fact, Brown continued, he was maliciously given more arduous tasks that he couldn’t perform because of his heart condition. The last straw occurred on October 8, Brown explained, when the Street Department foreman instructed him to separate pieces of asphalt from pieces of concrete. According to Brown, he went straight to the commissioner to remind him of his disability and to request, as an accommodation, that his assignments be limited to picking up litter.
North Chicago’s witnesses challenged Brown’s story. The foreman testified that he never instructed Brown to separate asphalt from concrete. The commissioner testified that Brown did not inform him that he suffered from a disability until October 8 and never requested an accommodation.
The parties agreed that after Brown told the commissioner about his disability on October 8, the commissioner immediately notified Waukegan Township, which told Brown to reapply to EarnFare because his current application did not disclose any disabilities. Brown never reapplied to EarnFare or returned to the Street Department.
In order to bolster his disputed testimony about his assignments and impeach the credibility of North Chicago’s witnesses, Brown sought to introduce into evidence a letter that the commissioner wrote to the Waukegan Township supervisor in January 2004. The letter was written in response to a notice the commissioner received from the Equal Employment Opportunity Commission concerning Brown’s allegations of discrimination and contained following sentence: “On October 8th, the Street Department Foreman, Gabriel Albarran, gave Mr. Brown a job assignment to separate black top and concrete chunks.”
Waukegan Township objected, and the district court ruled that the commissioner’s letter should be excluded under Federal Rule of Evidence 403 because it was written three months after the events giving rise to Brown’s allegations and because it might prejudice Waukegan Township by suggesting a cover-up conspiracy between the two defendants. Nevertheless, the *15district court allowed Brown to question the commissioner about the facts contained in the letter. The commissioner testified that he had no personal knowledge whether the foreman had assigned Brown to separate asphalt from concrete. The district court denied Brown’s request to impeach the commissioner by introducing the letter, describing its contents as hearsay.
Brown argues on appeal that the district court erred because the commissioner’s letter was admissible under Federal Rule of Evidence 801(d)(2)(D). That rule provides that a statement is not hearsay if it was made by an agent of the party against whom it is offered, concerns a matter within the scope of the agency, and was made during the existence of the agency. See Mister v. Ne. Ill. Commuter R.R. Corp., 571 F.3d 696, 698-99 (7th Cir.2009).
But evidence that is admissible under Rule 801(d)(2)(D) may nevertheless be excluded under Rule 403 if its probative value is substantially outweighed by a risk of unfair prejudice. Mister, 571 F.3d at 699. The district court gave little explanation for excluding the commissioner’s letter under Rule 403, but we do not think it was an abuse of discretion to sustain Waukegan Township’s objection. It was not unreasonable for the district court to fear that the letter could confuse the jury and unfairly prejudice Waukegan Township by suggesting that the township knew about or concealed evidence regarding Brown’s disputed tenure at the Street Department. See Finchum v. Ford Motor Co., 57 F.3d 526, 532 (7th Cir.1995) (upholding exclusion under Rule 403 of evidence suggesting defendant had engaged in inappropriate conduct not at issue). And the probative value of the letter is limited because it was prepared three months after the events it describes, see Grassi v. Info. Res., Inc., 63 F.3d 596, 602 (7th Cir.1995) (upholding exclusion under Rule 403 of records prepared six months after events at issue), and because the relevant passage is based on hearsay and appears only in a paragraph summarizing Brown’s allegations, see Mister, 571 F.3d at 699. These concerns adequately justify the district court’s determination that the letter should be excluded under Rule 403.
But even if Brown could show that the district court erred by excluding the commissioner’s letter, his appeal would still fail because any error was harmless and would not have affected the outcome of the trial. See Alverio v. Sam’s Warehouse Club, Inc., 253 F.3d 933, 943 (7th Cir.2001). As we explained above, the probative value of the letter is scant at best. We must strain to interpret the relevant passage as the damning admission Brown urges. We do not think the jury would have credited Brown’s testimony about the disputed assignments if only the commissioner’s letter had been admitted.
Brown’s remaining arguments are quickly dismissed. There is no Sixth Amendment right to counsel in a civil case. Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir.2001). Any claim Brown may have against Waukegan Township under the Freedom of Information Act was not presented at trial and is not properly before this court. And although Brown lists other issues for review, he does not develop them in his opening brief, so those arguments are waived. See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th Cir.2009).
AFFIRMED.
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ORDER
Miguel Mariscal pleaded guilty to conspiracy to distribute cocaine and marijuana, conspiracy to possess cocaine and marijuana with the intent to distribute, and possession of cocaine with the intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 240 months’ imprisonment. Mariscal appeals, but his appointed counsel seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because she cannot identify any nonfrivolous issues to raise on Mariscal’s behalf. We confine our review to the potential issues identified in counsel’s facially adequate brief and Mariscal’s response under Circuit Rule 51(b). See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We grant counsel’s motion to withdraw and dismiss Mariscal’s appeal.
Mariscal’s plea agreement contained a waiver precluding him from appealing or challenging his conviction or sentence under any provision of federal law unless he was sentenced to a term of imprisonment above his guidelines range. It also contained an estimate of Mariscal’s offense level and criminal-history category under the sentencing guidelines. But both Mar-iscal and the government were surprised by the presentence investigation report, which calculated an offense level and criminal-history category greater than either party had anticipated. Mariscal thought his lawyer had misled him and moved to withdraw the plea. The district court appointed a new lawyer, and after consulting with him, Mariscal changed his mind and withdrew his motion. The district court adopted the presentence investigation report’s calculations, granted the government’s motion for a below-guidelines sentence in recognition of the substantial assistance Mariscal had provided, and sentenced Mariscal to 240 months’ imprisonment.
Mariscal advised counsel that he has changed his mind again and now wishes to withdraw his plea, so counsel properly considers challenging whether the plea was knowing and voluntary. We agree with counsel that the only possible error the district court committed during the change-of-plea colloquy was neglecting to inform Mariscal of his right to persist in *17his plea of not guilty. See Fed.R.Crim.P. 11(b)(1)(B). But the error is harmless because, having previously moved to withdraw his guilty plea, Mariscal already knew the information the district court omitted. See United States v. Driver, 242 F.3d 767, 769 (7th Cir.2001). Mariscal’s plea agreement also advised him of this right.
Counsel next considers challenging Mar-iscal’s sentence. But as counsel properly observes, Mariscal’s appeal waiver forecloses any challenge to his sentence except a claim that it exceeded the statutory maximum, that the district court relied on an unconstitutional factor, or that the appeal waiver itself was the product of ineffective assistance. See United States v. Lockwood, 416 F.3d 604, 608 (7th Cir.2005); United States v. Bownes, 405 F.3d 634, 637 (7th Cir.2005); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999).
Mariscal’s response to counsel’s motion does contain allegations that the lawyer who negotiated the appeal waiver provided ineffective assistance. An ineffective-assistance claim, however, is best raised on collateral review, where a complete record can be developed. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
We GRANT counsel’s motion to withdraw and DISMISS Mariscal’s appeal.
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ORDER
Dexter Anderson moved to reduce his prison sentence under 18 U.S.C. § 3582(c)(2) after the Sentencing Commission retroactively lowered the base offense level applicable to his convictions. The district court denied the motion. We affirm that decision.
*18In 2004 a jury found Anderson guilty of participating in a crack conspiracy in Green Bay, Wisconsin. The district court calculated a total offense level of 44 and a criminal history category of III, which yielded a guidelines range of life imprisonment. Applying our holding in United, States v. Booker, 375 F.3d 508 (7th Cir. 2004), aff'd, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court declined to treat the guidelines as mandatory, concluding instead that a life sentence was too severe in the absence of violent conduct. Still, the court added, a sentence above the statutory minimum was necessary to reflect Anderson’s aggravating conduct: Anderson had tried to retrieve a loaded gun during his arrest and also lied at trial about the extent of his involvement in the conspiracy. The court imposed a total of 25 years’ imprisonment, 5 years above the 20-year statutory minimum applicable because of the drug quantity and Anderson’s criminal history. We affirmed the judgment on direct appeal. United States v. Anderson, 450 F.3d 294 (7th Cir.2006).
In 2008 Anderson moved for a lower sentence due to the retroactive amendments applicable to his crack offenses. See U.S.S.G. Supp. to App. C 226-31, 253 (2009) (Amendments 706 & 713). Under the amended guidelines Anderson’s total offense level is two levels lower and his imprisonment range is 30 years to life; he argued for a comparable reduction of his prison sentence. The district court denied the motion, explaining that Anderson’s original sentence had already been lowered because of the difference in offense levels for powder cocaine and crack cocaine. The court added that dropping the term any closer to the statutory minimum would require overlooking Anderson’s conduct during and after his arrest.
On appeal Anderson argues that the district court abused its discretion. Although the bottom of his modified imprisonment range is higher than the sentence imposed — 30 years compared with 25— Anderson still contends that he is entitled to benefit from the retroactive amendments. He asserts that he has been on good behavior since he was sentenced, and that he finally came around and accepted responsibility for his crimes at the hearing on his § 3582(c)(2) motion. He contends that these factors, combined with the different offense levels for offenses involving like amounts of powder and crack cocaine, gave the district court a compelling basis to resentence him.
We are satisfied that declining to do so was not an abuse of discretion. After considering applicable factors set forth in 18 U.S.C. § 3553(a), a district court has discretion to reduce a term of imprisonment if a reduction would be consistent with the policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2); United States v. Young, 555 F.3d 611, 613-14 (7th Cir.2009); United States v. Woods, 581 F.3d 531, 539 (7th Cir.2009). Those statements instruct the court to consider the movant’s postsen-tencing conduct and the danger to the community posed by releasing him early. U.S.S.G. § lB1.10(b)(2) & cmt. n. l(B)(ii), (B)(iii). After reviewing the record, the district court concluded that Anderson’s below-range sentence already accounted for the difference in offense levels between crack and powder cocaine. The court rejected Anderson’s argument that he should be rewarded for his good behavior in prison and for accepting responsibility; the judge questioned Anderson’s sincerity and opined that further reducing his prison term would diminish the severity of his aggravating conduct contrary to the aims of § 3553(a). This explanation was sufficient. See United States v. Johnson, 580 *19F.3d 567, 570 (7th Cir.2009); United States v. Harris, 490 F.3d 589, 597 (7th Cir.2007).
AFFIRMED.
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ORDER
The district court, relying on Jones v. Takaki, 38 F.3d 321 (7th Cir.1994), dismissed the plaintiffs’ complaint in this case. On appeal, we overruled Jones, explaining, “[0]ur fresh look at this issue causes us to conclude that given the length of time which can result between the seizure of property and the opportunity for an owner to contest the seizure under the DAFPA, some sort of mechanism to test the validity of the retention of the property is required.” Smith v. City of Chicago, 524 F.3d 834, 838 (7th Cir.2008).
We remanded the case to the district court to “fashion appropriate procedural relief consistent with this opinion.” Id. Our opinion, because it overruled Jones, was circulated among all active members of the court pursuant to Circuit Rule 40(e). None of the judges voted to rehear the case en banc. The case was not moot when we entered our judgment reversing the district court.
Subsequently, the Supreme Court granted the defendants’ petition for a writ of certiorari. But then, prior to oral arguments, the last of the named plaintiffs’ seized property was returned to her. The Supreme Court therefore held that the case (and thus the appeal) was moot. It vacated our judgment and remanded the case to us with instructions to dismiss. Alvarez v. Smith, — U.S.-, 130 S.Ct. 576, — L.Ed.2d-(2009). The Court cited United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950), as precedent for the vacatur order. Alvarez, 130 S.Ct. at 578, 581-83. The Court did not address the merits of the plaintiffs’ due process claim. Thus, neither the plaintiffs nor the defendants had the benefit of a full and final review of the due process issue that is at the core of this case.
When parties to a controversy cannot secure final review of the merits because the case became moot before the Supreme Court could address the merits, the appropriate relief, it seems, is an order vacating all prior judgments, without prejudice to any party’s right to proceed or defend. See Munsingwear, 340 U.S. at 40, 71 S.Ct. 104. When, through happenstance, a case becomes moot before final review is possible, vacatur is necessary to clear “the path for future relitigation of the issues between the parties, preserving the rights of all parties, while prejudicing none by a decision which ... was only preliminary.” Alvarez, 130 S.Ct. at 581 (quoting Munsingwear, 340 U.S. at 40, 71 S.Ct. 104) *22(internal quotations omitted). Considerations of “equity and fairness,” Alvarez, 180 S.Ct. at 582 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 518 U.S. 18, 25-26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (internal quotations omitted)), dictate that the parties start over, without prejudice, when final review is not possible through no fault of the parties themselves.
For these reasons, we believe the best course of action for us to take at this time is to vacate our judgment and to remand the case to the district court for consideration, or reconsideration, of issues that are not moot.
SO ORDERED.
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