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https://www.courtlistener.com/api/rest/v3/opinions/8477448/
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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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https://www.courtlistener.com/api/rest/v3/opinions/8477449/
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MEMORANDUM **
Kenneth Slayton appeals from his guilty-plea conviction and 72-month sentence for distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(iii). Pursuant to Anders v. California, 386 U.S. 738, 87 *48S.Ct. 1896, 18 L.Ed.2d 493 (1967), Slay-ton’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8477451/
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477453/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477455/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477457/
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477464/
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ORDER
PER CURIAM.
This court received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Shin-*222seki v. Sanders, — U.S. -, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on October 30, 2007, is hereby recalled and the appeal is reinstated.
(2) The Supreme Court of the United States has remanded the case to this court, and directs us to reinstate the judgment of the United States Court of Appeals for Veterans Claims. Accordingly, we hereby reinstate the judgment of the United States Court of Appeals for Veterans Claims, which affirmed the Board of Veterans’ Appeals denial of Mr. Sanders’ claim for service connection for choriore-tinitis of his right eye.
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https://www.courtlistener.com/api/rest/v3/opinions/8477466/
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ORDER
PER CURIAM.
The court has received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Shinseki v. Sanders, — U.S. -, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on October 31, 2007, is hereby recalled and the appeal is reinstated.
(2) The Supreme Court of the United States vacated this court’s judgment and directed us to remand the case to the United States Court of Appeals for Veterans Claims. Accordingly, we hereby remand the case to the United States Court of Appeals for Veterans Claims so that it may determine whether reconsideration of its decision is necessary in light of the Supreme Court’s opinion.
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https://www.courtlistener.com/api/rest/v3/opinions/8477468/
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477450/
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MEMORANDUM **
Kenneth Slayton appeals from his guilty-plea conviction and 72-month sentence for distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(iii). Pursuant to Anders v. California, 386 U.S. 738, 87 *48S.Ct. 1896, 18 L.Ed.2d 493 (1967), Slay-ton’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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https://www.courtlistener.com/api/rest/v3/opinions/8477452/
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ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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https://www.courtlistener.com/api/rest/v3/opinions/8477456/
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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*220
ORDER
The court considers whether to reinstate Wanda N.D. Thomas’s petition for review.
This petition was dismissed by this court on July 14, 2009, 363 Fed.Appx. 740, for failure to pay the court’s docketing fee. The court recently granted Thomas’s request for an extension of time to pay the docketing fee.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate is recalled, the court’s July 14, 2009 order is vacated, and the petition is reinstated.
(2) The Office of Personnel Management should calculate its brief due date from the date of filing of this order.
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https://www.courtlistener.com/api/rest/v3/opinions/8477462/
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ON MOTION
ORDER
Robert W. Scroggins moves for leave to proceed in forma pauperis. Scroggins also submits a July 11, 2009 letter which the court construes to be his brief.
The court notes that it is returning to Scroggins the credit report attached to his motion. The credit report is not necessary for the submission of the motion for leave to proceed in forma pauperis and should not be included in the court’s public file.
(1) The motion for leave to proceed in forma pauperis is granted. The case may proceed without payment of the docketing fee.
(2) The credit report attached to Scrog-gins’ motion is returned to Scroggins herewith.
(3) The mandate is recalled, the court’s dismissal order is vacated, and the appeal is reinstated.
(4) Unless Scroggins files an informal brief on the enclosed form within 21 days of the date of filing of this order, the court will treat Scroggins’ July 11, 2009 letter as his informal brief and will accept it for filing. The Secretary of Veterans Affairs’ brief is due within 75 days of the date of filing of this order.
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ORDER
PER CURIAM.
This court received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Shin-*222seki v. Sanders, — U.S. -, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on October 30, 2007, is hereby recalled and the appeal is reinstated.
(2) The Supreme Court of the United States has remanded the case to this court, and directs us to reinstate the judgment of the United States Court of Appeals for Veterans Claims. Accordingly, we hereby reinstate the judgment of the United States Court of Appeals for Veterans Claims, which affirmed the Board of Veterans’ Appeals denial of Mr. Sanders’ claim for service connection for choriore-tinitis of his right eye.
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https://www.courtlistener.com/api/rest/v3/opinions/8477465/
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ORDER
PER CURIAM.
The court has received a certified copy of the judgment from the Clerk of the Supreme Court of the United States in Shinseki v. Sanders, — U.S. -, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009).
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The mandate issued on October 31, 2007, is hereby recalled and the appeal is reinstated.
(2) The Supreme Court of the United States vacated this court’s judgment and directed us to remand the case to the United States Court of Appeals for Veterans Claims. Accordingly, we hereby remand the case to the United States Court of Appeals for Veterans Claims so that it may determine whether reconsideration of its decision is necessary in light of the Supreme Court’s opinion.
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https://www.courtlistener.com/api/rest/v3/opinions/8477475/
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*225
ORDER
PER CURIAM.
Upon consideration of the motion for a certificate of appealability and for summary reversal, it is
ORDERED that the motion for certificate of appealability be denied. See 28 U.S.C. § 2253(c). Because appellant has not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), no certificate of appealability is warranted. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Appellant may not challenge his District of Columbia conviction in federal court unless his remedy under D.C.Code § 23-110(g) is inadequate or ineffective to test the legality of his detention. See, e.g., Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C.Cir.1998). It is
FURTHER ORDERED that the motion for summary reversal be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. Because no certificate of appealability has been allowed, no mandate will issue.
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https://www.courtlistener.com/api/rest/v3/opinions/8477478/
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SUMMARY ORDER
Appellants (collectively, “the Chiumento Group”), appeal from an order of the United States District Court for the Southern District of New York (Pauley, J.) appointing Appellees (collectively, “Local 649”) as lead plaintiffs in this securities class action litigation and appointing Appellees’ counsel, Bernstein Liebhard & Lifshitz, LLP, as lead counsel. As required by the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), the District Court based its selection of lead plaintiff on its determination of “which member or members of the purported plaintiff class ... [were] most capable of adequately representing the interests of class members.” 15 U.S.C. § 78u-4(a)(8)(B)(i). Finding that Local 649 had a “significantly greater” financial interest in the relief sought than the Chiumento Group, the court concluded that Local 649 was presumptively the most adequate plaintiff under the PSLRA. Because Local 649 also satisfied Federal Rule of Civil Procedure 23(a)’s requirements that a class representative have “claims ... typical of the class” and be capable of “fairly and adequately protecting] the interests of the class,” the court deemed Local 649 as an adequate appointment as lead plaintiff. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented on appeal.
We review a district court’s appointment of a lead plaintiff for abuse of discretion. Hevesi v. Citigroup, Inc., 366 F.3d 70, 83 (2d Cir.2004). The PSLRA provides that a court should appoint as lead plaintiff “the member or members of the purported plaintiff class that [it] determines to be most capable of adequately representing the interests of the class members.” 15 U.S.C. § 78u-4(a)(3)(B)(i). The plaintiff with the “largest financial interest in the relief sought by the class” and who “otherwise satisfies the requirements of [Fed. R.Civ.P.] 23” is presumptively the most adequate plaintiff. Id. § 78u-4(a)(3)(B)(iii)(I). The Rule 23 requirements applicable here mandate that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class,” Fed.R.Civ.P. 23(a)(3) (the “typicality” requirement), and that “the representative parties ... fairly and adequately protect the interests of the class,” *300Fed.R.Civ.P. 23(a)(4) (the “adequacy” requirement).
We are satisfied that Local 649 has established its significant financial interest in the outcome of this litigation. We are also satisfied that Local 649 meets the class requirements of Rule 23. For these reasons and those outlined in the district court’s opinion, we find no abuse of discretion in the court’s selection of lead plaintiff and lead counsel.
The order of the District Court is AFFIRMED.
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OPINION
PER CURIAM.
Tyree A. Gregory appeals from an order of the United States District Court for the District of New Jersey, which dismissed his petition for a writ of habeas corpus for lack of jurisdiction. As the appeal presents no substantial issue, we will summarily affirm the District Court’s judgment.
Gregory’s petition, filed pursuant to 28 U.S.C. § 2241, sought a credit against his prison sentence at a 3:1 ratio for time served at correctional centers whose conditions, he alleged, bordered on cruel and unusual punishment.1 The District Court determined that the relief Gregory sought was not available via a § 2241 petition, as Gregory was not challenging the execution of his sentence, but was rather seeking a reduction or modification of his sentence. The District Court noted that such relief was potentially available only by way of motions filed pursuant to 28 U.S.C. § 2255 or 18 U.S.C. § 3582(c). We agree.
*327As the District Court noted, a § 2241 petition is the proper means for a federal prisoner to challenge the execution of his sentence. Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir.2001). A federal prisoner may challenge, for example, such matters as the administration of parole, computation of his sentence by prison officials, prison disciplinary actions, prison transfers, type of detention or prison conditions by way of a § 2241 petition. Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 242 (3d Cir.2005). Here, Gregory was not challenging the execution of his sentence; e.g., the computation of the sentence that was imposed for his criminal conviction, or the conditions of his current imprisonment. Instead, he was asking the District Court to modify the sentence originally imposed to reflect a credit based on conditions in his places of pretrial confinement. We agree with the District Court that the only potential vehicles for relief would be a motion to correct the sentence filed pursuant to 28 U.S.C. § 2255, or a motion to reduce the sentence pursuant to 18 U.S.C. § 3582 filed with the sentencing court.2
For the foregoing reasons, we will summarily affirm the District Court’s judgment.
. Gregory complained of pre-trial detention conditions at three different correctional facilities, and alleged, inter alia, that he was forced to live in overcrowded and unsanitary conditions, that he was stabbed with a homemade shank, that meals were inadequate and unsafe, and that he was exposed to potentially life-threatening diseases from other inmates.
. We express no opinion as to whether Gregory could meet the procedural prerequisites for either of these forms of relief, nor whether such motions would be found to have merit.
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https://www.courtlistener.com/api/rest/v3/opinions/8477486/
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OPINION
PER CURIAM.
Ronald Jackson, a state prisoner proceeding pro se, appeals from the District Court’s order denying his motion for summary judgment and granting defendants’ cross-motion for summary judgment. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
Jackson, an inmate incarcerated at SCI-Graterford, Pennsylvania, filed a pro se civil rights action against a host of prison officials, alleging that his constitutional rights were violated over the course of nine months. Jackson claimed that from September 2006 to June 2007, prison officials wrongly charged him with misconduct and repeatedly assaulted him in retaliation for his complaints. The District Court dismissed some of Jackson’s claims with prejudice and other claims without prejudice to his filing of an amended complaint. Jackson filed an amended complaint and moved for summary judgment. Defendants then filed a cross-motion for summary judgment. The District Court denied Jackson’s summary judgment motion and granted defendants’ cross-motion for summary judgment. The court concluded that Jackson failed to present any evidence to support his claims. Jackson now appeals from the order of the District Court denying his motion for summary judgment and granting summary judgment for defendants.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s dismissal. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.2004). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir.2006). If a motion for summary judgment demonstrates that no genuine issue of material fact exists, the non-moving party must set forth specific facts showing a genuine material issue for trial and may not rest upon the mere allegations or denials of its pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir.1994).
Upon careful review of the record, we agree with the District Court that summary judgment for defendants was appropriate. Jackson failed to provide any evidence to support the elements of his claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Jackson’s conclusory allegations of retaliation and excessive force— without any additional evidence — are insufficient to plausibly demonstrate that a genuine issue of material fact exists. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (listing elements of retaliation claim); Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir.2002) (listing factors for excessive force claims). His mere denials of facts do not merit the rejection of defendants’ summary judgment motion. See Fed.R.Civ.P. 56(e)(2) (“an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial”). Accordingly, the District Court properly denied Jackson’s summary judgment motion and granted defendants’ cross-motion for summary judgment. *334As Jackson’s appeal presents no substantial question, we will summarily affirm the District Court judgment. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. Jackson’s motion for appointment of counsel and motion for a preliminary injunction are denied.
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*335OPINION
PER CURIAM.
Appellant Joseph Peter Frankenberry seeks review of a final order by the United States District Court for the Western District of Pennsylvania entered on November 6, 2009, 2009 WL 3734140. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
In 1981, after a jury trial, the Court of Common Pleas of Fayette County convicted Frankenberry of first degree murder. Frankenberry was sentenced to life imprisonment. The state courts affirmed Frankenberry’s conviction on direct appeal. Frankenberry filed three petitions under Pennsylvania’s Post Conviction Relief Act (“PCRA”) and all were unsuccessful.
Frankenberry filed his first federal petition for a writ of habeas corpus in February 1991. The District Court denied the petition1 and we denied his application for a certificate of probable cause. See Frankenberry v. Morgan, C.A. No. 92-3146 (3d Cir. August 31, 1992). In September 1996, Frankenberry filed an application pursuant to 28 U.S.C. § 2244 in this Court, seeking leave to file a second habe-as corpus petition. We denied the application. See In re: Frankenberry, C.A. No. 96-8060 (October 3, 1996). In October 1999, Frankenberry filed a motion in the District Court entitled “Application Pursuant to In Re Minarik for Leave to File Second 28 U.S.C. § 2254 Petition Under the Pre-AEDPA Law and Standards.” The District Court concluded that the motion was an unauthorized attempt to file a successive habeas corpus petition and transferred it to this Court. We denied leave to file a successive petition. See In re: Frankenberry, C.A. No. 01-1890 (3d Cir. June 1, 2001).
Frankenberry filed the instant petition for a writ of habeas corpus, ostensibly pursuant to 28 U.S.C. § 2241, in the District Court in May 2009. The Magistrate Judge issued a detailed Report and Recommendation recommending that it be dismissed as “jurisdictionally improper and/or meritless.” Frankenberry filed objections. The District Court considered the objections, adopted the Report and Recommendation, denied the petition, and, to the extent one would be necessary, declined to issue a Certificate of Appealability (“COA”).
Frankenberry filed a timely pro se notice of appeal.
II. Analysis
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s denial of the petition for a writ of habeas corpus. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted in April 1996. Because Franken-*336berry filed his first habeas corpus petition before AEDPA’s enactment, AEDPA’s restrictions on filing second or successive petitions do not apply if they would have an impermissible retroactive effect on Frankenberry’s petition.2 See In re Minarik, 166 F.3d 591, 600 (3d Cir.1999).
Prior to AEDPA, in order to pursue a habeas corpus claim that he did not present in his first petition, Frankenberry would have had to demonstrate either (1) cause and prejudice for the failure to raise the claim in the first habeas corpus petition; or (2) that the alleged constitutional violations probably resulted in the conviction of one who is actually innocent. See In re Minarik, 166 F.3d at 607. If Frank-enberry’s new claims would have been barred as an “abuse of the writ,” then AEDPA’s gatekeeping standards apply.3 Id. at 608.
Frankenberry has failed to set forth his new habeas corpus claims with clarity. In his Response, he vaguely describes his claims as the same as those he raised in his first PCRA petition, which he filed in state court in 1994. See Response at 12 (“[W]hen petitioner stated ‘restates and realleges’ the issue in his first PCRA ..., [t]hen naturally it presupposes the same claim of ineffective assistance of counsel continues in the instant habeas petition.”). Frankenberry has made no effort to establish cause and prejudice for failing to raise these claims in his first habeas corpus petition and he does not argue actual innocence. We see no basis for applying these principles. Frankenberry’s claims cannot survive the pre-AEDPA “abuse of the writ” standard and, accordingly, the § 2244 gatekeeping standards properly apply-
B.
We next turn to the District Court’s conclusion that Frankenberry’s petition was an attempt to file an unauthorized second or successive petition under § 2254. Frankenberry contends that the current petition, while concededly not his first habeas corpus petition, should not be considered “second or successive.” See Response at 6 (“[T]he instant habeas petition ... must be considered a first habeas petition.”).
First, Frankenberry argues that the District Court dismissed his first habeas corpus petition as unexhausted, so it does not “count” for purposes of determining whether his subsequent petitions are successive. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). However, the District Court did not dismiss his first petition as unexhausted. The District Court denied the petition on the merits.4 *337Accordingly, Marbinez-Villareal does not apply.
Next, Frankenberry argues that, when he filed his first habeas corpus petition, he attempted to proceed under 28 U.S.C. § 2241, but the District Court “recharac-terized” his petition under 28 U.S.C. § 2254 without providing prior notice pursuant to Castro v. United States, 540 U.S. 875, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Frankenberry has failed to establish that the District Court “recharacter-ized” his first habeas corpus petition. The Docket Sheet from that action reflects that Frankenberry filed a document entitled “APPLICATION for Leave to Amend 28 U.S.C. § 2254 w/ petition,” along with an amended petition, in April 1991. See Response Exhibit B-l (Docket, Civ. Action No. 91-cv-241 (W.D.Pa.)). The District Court granted Frankenberry’s motion to amend. Thus, Frankenberry himself sought relief under § 2254.
C.
Frankenberry’s initial submissions stated that he filed the instant petition pursuant to 28 U.S.C. § 2241 rather than § 2254. To the extent Frankenberry continues to attempt to proceed under § 2241, we agree with the District Court’s conclusion that he is not entitled to do so. A state prisoner who, like Frankenberry, is challenging the validity or execution of his state court sentence must proceed under 28 U.S.C. § 2254. See Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir.2001).
Frankenberry argues that he may proceed under § 2241 pursuant to In re Dor-sainvil, 119 F.3d 245, 251 (3d Cir.1997). In In re Dorsainvil, we held that a motion under 28 U.S.C. § 2255 was “inadequate or ineffective” to test the legality of a federal prisoner’s detention where an intervening change in the law had decriminalized the prisoner’s conduct. However, Franken-berry is not a federal prisoner and his claims do not fit within the narrow In re Dorsainvil exception. Frankenberry essentially claims that § 2241 should apply because his past attempts to proceed under § 2254 were unsuccessful. We have held that § 2241 does not apply merely so that a petitioner may avoid AEDPA’s strict gatekeeping requirements. See Coady, 251 F.3d at 484-85.
III. Conclusion
For all of the foregoing reasons, the District Court properly dismissed the petition as an attempt to file a second or successive habeas corpus petition under § 2254 without first obtaining the necessary authorization under § 2244.5 See 28 U.S.C. §§ 2244, 2254. Having closely reviewed the record, we conclude that there is no substantial question to be presented on appeal. We will therefore summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
. Frankenberry raised three claims of trial court error and one claim that he was sentenced in violation of the Interstate Agreement on Detainers Act. The District Court concluded that the three trial error claims lacked merit. See Frankenberry v. Morgan, Docket No. 21, Report and Recommendation, Civ. Action No. 91-0241 (W.D.Pa. Jan. 27, 1992). The District Court concluded that the Detainers Act claim was unexhausted and procedurally defaulted and Frankenberry did not establish a basis to excuse the procedural default. Id.
. With respect to Frankenberry’s 1999 attempt to seek habeas corpus relief, we concluded that, under In re Minarik, the claims Frankenberry wished to raise would have been dismissed under the pre-AEDPA standard and there was no impermissible retroactive application of AEDPA’s gatekeeping standards. See In re Frankenberry, C.A. No. 01-1890 (3d Cir. May 17, 2001).
. Under AEDPA, Frankenberry would be required to apply to this Court to file a second or successive petition, and must make a prima facie showing that any claim he wishes to raise either relies upon a new, retroactively applicable rule of constitutional law or upon newly discovered evidence of actual innocence. See 28 U.S.C. § 2244(b)(2); In re Olo-pade, 403 F.3d 159, 162 (3d Cir.2005). We note that, if Frankenberry had filed the instant petition as a § 2244 application in this Court, the record does not reflect that his claims would meet the § 2244 standard.
.Although the District Court concluded that one claim was unexhausted, it further found that the claim was procedurally defaulted and Frankenberiy did not establish a basis for excusing the procedural default. See Frankenberry v. Morgan, Docket No. 21, Report and Recommendation, Civ. Action No. 91-0241 (W.D.Pa. Jan. 27, 1992); see also, e.g., Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998) (a denial based on a procedural default not overcome by a showing of cause *337and prejudice constitutes an adjudication on the merits).
. We will not address the District Court's alternative conclusion that Frankenberry’s claims lacked merit. See Goldblum v. Klem, 510 F.3d 204, 217 (3d Cir.2007) (citing Benchoff v. Colleran, 404 F.3d 812, 816 (3d Cir. 2005)) ("Unless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.”).
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PER CURIAM: *
The attorney appointed to represent Bennie D. Emeary, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 *553U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Emeary has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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ORDER
PER CURIAM.
Upon consideration of the motion for summary affirmance and the opposition thereto; and the motion for appointment of counsel, it is
ORDERED that the motion for appointment of counsel be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion for summary affirmance be granted. The merits of the parties’ positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987) (per curiam). Appellant alleges that appellee libeled him by printing articles that included misleading testimony from his criminal trial, an opinion concerning the sentence he should receive, and reports that he attempted to break into his ex-wife’s apartment. Under either District of Columbia or Maryland law, the fair report privilege protects ap-pellee’s reporting of testimony from appellant’s trial. See Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88 (D.C.1980); Chesapeake Publishing Corp. v. Williams, 389 Md. 285, 661 A.2d 1169, 1174 (1995). Appellant has not addressed the district court’s conclusion that his other allegations failed to meet the standard in Federal Rule of Civil Procedure 8, and thus he has forfeited this issue on appeal. See U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C.Cir.2004).
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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*225
ORDER
PER CURIAM.
Upon consideration of the motion for a certificate of appealability and for summary reversal, it is
ORDERED that the motion for certificate of appealability be denied. See 28 U.S.C. § 2253(c). Because appellant has not made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), no certificate of appealability is warranted. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Appellant may not challenge his District of Columbia conviction in federal court unless his remedy under D.C.Code § 23-110(g) is inadequate or ineffective to test the legality of his detention. See, e.g., Blair-Bey v. Quick, 151 F.3d 1036, 1042-43 (D.C.Cir.1998). It is
FURTHER ORDERED that the motion for summary reversal be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. Because no certificate of appealability has been allowed, no mandate will issue.
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OPINION
PER CURIAM.
Tyree A. Gregory appeals from an order of the United States District Court for the District of New Jersey, which dismissed his petition for a writ of habeas corpus for lack of jurisdiction. As the appeal presents no substantial issue, we will summarily affirm the District Court’s judgment.
Gregory’s petition, filed pursuant to 28 U.S.C. § 2241, sought a credit against his prison sentence at a 3:1 ratio for time served at correctional centers whose conditions, he alleged, bordered on cruel and unusual punishment.1 The District Court determined that the relief Gregory sought was not available via a § 2241 petition, as Gregory was not challenging the execution of his sentence, but was rather seeking a reduction or modification of his sentence. The District Court noted that such relief was potentially available only by way of motions filed pursuant to 28 U.S.C. § 2255 or 18 U.S.C. § 3582(c). We agree.
*327As the District Court noted, a § 2241 petition is the proper means for a federal prisoner to challenge the execution of his sentence. Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir.2001). A federal prisoner may challenge, for example, such matters as the administration of parole, computation of his sentence by prison officials, prison disciplinary actions, prison transfers, type of detention or prison conditions by way of a § 2241 petition. Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 242 (3d Cir.2005). Here, Gregory was not challenging the execution of his sentence; e.g., the computation of the sentence that was imposed for his criminal conviction, or the conditions of his current imprisonment. Instead, he was asking the District Court to modify the sentence originally imposed to reflect a credit based on conditions in his places of pretrial confinement. We agree with the District Court that the only potential vehicles for relief would be a motion to correct the sentence filed pursuant to 28 U.S.C. § 2255, or a motion to reduce the sentence pursuant to 18 U.S.C. § 3582 filed with the sentencing court.2
For the foregoing reasons, we will summarily affirm the District Court’s judgment.
. Gregory complained of pre-trial detention conditions at three different correctional facilities, and alleged, inter alia, that he was forced to live in overcrowded and unsanitary conditions, that he was stabbed with a homemade shank, that meals were inadequate and unsafe, and that he was exposed to potentially life-threatening diseases from other inmates.
. We express no opinion as to whether Gregory could meet the procedural prerequisites for either of these forms of relief, nor whether such motions would be found to have merit.
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OPINION
PER CURIAM.
Appellant, Warren Arsad, appeals the District Court’s order dismissing his pro se complaint. Upon consideration of the record, we conclude that the District Court properly determined that the Arsad’s claims were legally frivolous. Therefore, because the appeal presents no arguable issues of fact or law, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
Arsad, a state prisoner currently incarcerated at SCI-Cresson, filed a civil rights action pursuant to 42 U.S.C. § 1983 against the Honorable Rayford A. Means of the Philadelphia Court of Common Pleas, and three attorneys from the Philadelphia District Attorney’s Office. In his complaint, Arsad challenges, inter alia, Judge Means’ jurisdiction and sentencing determinations with respect to a state criminal action, and accuses the Assistant District Attorneys of prosecutorial and professional misconduct with respect to that same criminal action. Arsad sought various monetary damages for what he alleges were violations of his “civil and human” rights. In an order entered on July 15, 2009, the District Court dismissed Arsad’s complaint as legally frivolous under the in forma pauperis statute. This timely appeal followed.
We will dismiss the appeal as lacking legal merit pursuant to 28 U.S.C. § 1915(e)(2)(B), as Arsad’s complaint was properly disposed of by the District Court. Initially we note that, insofar as appellant seeks money damages as a result of his conviction or sentence, Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars the action because Arsad has not alleged that his conviction or sentence has been invalidated. In Heck, the Supreme Court held that a state prisoner could not maintain an action for damages under the civil rights laws if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487, 114 S.Ct. 2364.
*329To the extent that Arsad seeks monetary damages for an alleged constitutional violation in connection with his criminal proceedings that would not imply the invalidity of his conviction or sentence, the District Court correctly concluded that appellant’s claims were meritless. Any challenge Arsad sought to assert with respect to the actions of a state court judge was properly disposed of with little discussion as judges are entitled to absolute immunity in § 1983 actions seeking monetary damages for acts performed in their judicial capacities. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Likewise, the District Court committed no error in rejecting Arsad’s claims against the state prosecuting attorneys as it is a well established principle that a prosecuting attorney acting within the scope of his duties is absolutely immune from a § 1983 suit for damages. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).
Accordingly, the appeal lacks merit and we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Arsad’s motions to “aggregate” and “consolidate” several of his many appeals are denied without discussion. We briefly note that some of the appeals Ar-sad seeks to have consolidated have already been closed.
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OPINION
PER CURIAM.
Sean Pressley appeals the District Court’s order denying his motion for a preliminary injunction. For the reasons below, we will affirm.
Pressley was transferred to SCI-Maha-noy in February 2007. At the time of his transfer, he was in disciplinary confinement. After completing his disciplinary sentence in October 2007, he was placed in Administrative Custody (AC). In November 2008, Pressley filed a complaint and a motion for a preliminary injunction. In his complaint, Pressley alleged that he was denied procedural due process by (1) his placement on the Restricted Release List; (2) his placement in AC; and (3) appellees’ denials of meaningful periodic reviews of his AC status. He contended that appel-lees violated his rights to equal protection by denying him access to rehabilitative and educational programming. In his motion for a preliminary injunction, Pressley requested that appellees be directed to (1) refrain from transferring him to the Special Management Unit (SMU); (2) make programs available that he needs for parole eligibility; (3) provide him with GED programming; and (4) provide him with the privileges provided to similarly-situated inmates. The District Court denied the motion for a preliminary injunction, and Pressley filed a notice of appeal.
We have jurisdiction over the appeal of the order denying Pressley’s request for injunctive relief. 28 U.S.C. § 1292(a)(1). We review the denial of a motion for a preliminary injunction to determine whether the District Court abused its discretion, committed an obvious error in applying the law, or made a serious mistake in considering the proof. In re Assets of Myles Martin, 1 F.3d 1351, 1357 (3d Cir.1993). In deciding whether to issue a preliminary injunction, the District Court must consider “(1) whether the movant has a reasonable probability of success on the merits; (2) whether irreparable harm would result if the relief sought is not granted; (3) whether the relief would result in greater harm to the non-moving party, and (4) whether the relief is in the public interest.” Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir.2002).
In order to demonstrate a violation of the right to procedural due process, a litigant must show (1) that the state deprived him of a protected interest in life, liberty, *331or property; and (2) that the deprivation occurred without due process of law. Burns v. PA Dept. of Correction, 544 F.3d 279 (3d Cir.2008). In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2298, 132 L.Ed.2d 418 (1995), the Supreme Court held that in a prison setting, protected liberty interests are generally limited to freedom from restraint that “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” We have held that exposure to the conditions of administrative custody, even for periods as long as 15 months, “falls within the expected parameters of the sentence imposed [on a prisoner] by a court of law.” Griffin v. Vaughn, 112 F.3d 703, 707 (3d Cir.1997).
Pressley requested that the District Court enjoin appellees from placing him in the SMU. He alleged that the Periodic Review Committee (PRC) decided in September 2008 to release him to general population but that Superintendent Johnson denied the request and requested that Pressley be returned to the SMU.1 Pressley has not shown that the conditions in the SMU are so different from those in AC that he has a liberty interest in avoiding transfer to the SMU.2 Moreover, it is speculative for Pressley to argue that any future transfer to SMU will violate his rights to due process. He has not demonstrated that he will be transferred without being provided with the appropriate procedural protections.3
In his request for a preliminary injunction, Pressley also sought access to educational and parole programs.4 He requested unspecified privileges consistent with his status. The District Court denied relief on this claim on the ground that Pressley had no right to the programming or privileges. Pressley, however, admitted that he has no per se right to programming, education, and privileges. He argued that he is entitled to them as a matter of equal protection because the prison officials make these privileges available to other inmates. Because he did not argue that he is being treated unfairly based on any membership in a protected class, we will construe his claim as alleging an equal protection violation against a “class of one.” To succeed on a claim based on a “class of one” theory, Pressley must show that he was intentionally treated differently from others similarly situated and there was no rational basis for the *332treatment. See Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir.2008). Pressley has a serious history of institutional misconducts and has served several lengthy sentences in disciplinary confinement. Pressley has not shown a reasonable probability of success in demonstrating that a similarly-situated inmate with an equally serious disciplinary background has been treated differently and that there is no rational reason for the treatment.
Summary action is appropriate if there is no substantial question presented in the appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the District Court, we will summarily affirm the District Court’s order. See Third Circuit I.O.P. 10.6. Pressley’s motion for the appointment of counsel is denied.
. Pressley argued that he has received one misconduct in the last 18 months and any return to the SMU would be arbitrary and capricious. However, we have held that "due process is not violated by placing an inmate in administrative custody based on past conduct that furnishes a basis for predicting that the inmate will engage in future acts of violence if corrective measures are not taken.” Fraise v. Terhune, 283 F.3d 506, 523 (3d Cir. 2002) citing Shoats v. Horn, 213 F.3d 140, 146-47 (3d Cir.2000). Pressley has an extensive disciplinary history.
. We note that in his supplemental declaration in support of his motion for a prelimi-naiy injunction, Pressley asserted that inmates in the SMU are permitted to have televisions, education, programming, and all the entitlements that he is seeking. Thus, it is not clear why Pressley seeks to avoid being transferred to the SMU.
. To the extent that Pressley seeks to challenge his continued confinement in AC, the District Court did not abuse its discretion in determining that Pressley’s stay in the AC did not rise to the level of an atypical and significant hardship.
. Pressley argues that he is eligible for parole in August 2010 and his placement in AC or SMU would disqualify him for parole. Press-ley also requested that prison officials be directed to make programming available that he needs for parole eligibility. Pressley has not identified any specific programming he needs or provided any documentation demonstrating that such programs are required before he will be considered for parole.
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OPINION
PER CURIAM.
Ronald Jackson, a state prisoner proceeding pro se, appeals from the District Court’s order denying his motion for summary judgment and granting defendants’ cross-motion for summary judgment. Because the appeal does not present a substantial question, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
Jackson, an inmate incarcerated at SCI-Graterford, Pennsylvania, filed a pro se civil rights action against a host of prison officials, alleging that his constitutional rights were violated over the course of nine months. Jackson claimed that from September 2006 to June 2007, prison officials wrongly charged him with misconduct and repeatedly assaulted him in retaliation for his complaints. The District Court dismissed some of Jackson’s claims with prejudice and other claims without prejudice to his filing of an amended complaint. Jackson filed an amended complaint and moved for summary judgment. Defendants then filed a cross-motion for summary judgment. The District Court denied Jackson’s summary judgment motion and granted defendants’ cross-motion for summary judgment. The court concluded that Jackson failed to present any evidence to support his claims. Jackson now appeals from the order of the District Court denying his motion for summary judgment and granting summary judgment for defendants.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s dismissal. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.2004). Summary judgment is proper where, viewing the evidence in the light most favorable to the nonmoving party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir.2006). If a motion for summary judgment demonstrates that no genuine issue of material fact exists, the non-moving party must set forth specific facts showing a genuine material issue for trial and may not rest upon the mere allegations or denials of its pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir.1994).
Upon careful review of the record, we agree with the District Court that summary judgment for defendants was appropriate. Jackson failed to provide any evidence to support the elements of his claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Jackson’s conclusory allegations of retaliation and excessive force— without any additional evidence — are insufficient to plausibly demonstrate that a genuine issue of material fact exists. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001) (listing elements of retaliation claim); Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir.2002) (listing factors for excessive force claims). His mere denials of facts do not merit the rejection of defendants’ summary judgment motion. See Fed.R.Civ.P. 56(e)(2) (“an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial”). Accordingly, the District Court properly denied Jackson’s summary judgment motion and granted defendants’ cross-motion for summary judgment. *334As Jackson’s appeal presents no substantial question, we will summarily affirm the District Court judgment. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. Jackson’s motion for appointment of counsel and motion for a preliminary injunction are denied.
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*335OPINION
PER CURIAM.
Appellant Joseph Peter Frankenberry seeks review of a final order by the United States District Court for the Western District of Pennsylvania entered on November 6, 2009, 2009 WL 3734140. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I. Background
In 1981, after a jury trial, the Court of Common Pleas of Fayette County convicted Frankenberry of first degree murder. Frankenberry was sentenced to life imprisonment. The state courts affirmed Frankenberry’s conviction on direct appeal. Frankenberry filed three petitions under Pennsylvania’s Post Conviction Relief Act (“PCRA”) and all were unsuccessful.
Frankenberry filed his first federal petition for a writ of habeas corpus in February 1991. The District Court denied the petition1 and we denied his application for a certificate of probable cause. See Frankenberry v. Morgan, C.A. No. 92-3146 (3d Cir. August 31, 1992). In September 1996, Frankenberry filed an application pursuant to 28 U.S.C. § 2244 in this Court, seeking leave to file a second habe-as corpus petition. We denied the application. See In re: Frankenberry, C.A. No. 96-8060 (October 3, 1996). In October 1999, Frankenberry filed a motion in the District Court entitled “Application Pursuant to In Re Minarik for Leave to File Second 28 U.S.C. § 2254 Petition Under the Pre-AEDPA Law and Standards.” The District Court concluded that the motion was an unauthorized attempt to file a successive habeas corpus petition and transferred it to this Court. We denied leave to file a successive petition. See In re: Frankenberry, C.A. No. 01-1890 (3d Cir. June 1, 2001).
Frankenberry filed the instant petition for a writ of habeas corpus, ostensibly pursuant to 28 U.S.C. § 2241, in the District Court in May 2009. The Magistrate Judge issued a detailed Report and Recommendation recommending that it be dismissed as “jurisdictionally improper and/or meritless.” Frankenberry filed objections. The District Court considered the objections, adopted the Report and Recommendation, denied the petition, and, to the extent one would be necessary, declined to issue a Certificate of Appealability (“COA”).
Frankenberry filed a timely pro se notice of appeal.
II. Analysis
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s denial of the petition for a writ of habeas corpus. See Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.2002). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
A.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted in April 1996. Because Franken-*336berry filed his first habeas corpus petition before AEDPA’s enactment, AEDPA’s restrictions on filing second or successive petitions do not apply if they would have an impermissible retroactive effect on Frankenberry’s petition.2 See In re Minarik, 166 F.3d 591, 600 (3d Cir.1999).
Prior to AEDPA, in order to pursue a habeas corpus claim that he did not present in his first petition, Frankenberry would have had to demonstrate either (1) cause and prejudice for the failure to raise the claim in the first habeas corpus petition; or (2) that the alleged constitutional violations probably resulted in the conviction of one who is actually innocent. See In re Minarik, 166 F.3d at 607. If Frank-enberry’s new claims would have been barred as an “abuse of the writ,” then AEDPA’s gatekeeping standards apply.3 Id. at 608.
Frankenberry has failed to set forth his new habeas corpus claims with clarity. In his Response, he vaguely describes his claims as the same as those he raised in his first PCRA petition, which he filed in state court in 1994. See Response at 12 (“[W]hen petitioner stated ‘restates and realleges’ the issue in his first PCRA ..., [t]hen naturally it presupposes the same claim of ineffective assistance of counsel continues in the instant habeas petition.”). Frankenberry has made no effort to establish cause and prejudice for failing to raise these claims in his first habeas corpus petition and he does not argue actual innocence. We see no basis for applying these principles. Frankenberry’s claims cannot survive the pre-AEDPA “abuse of the writ” standard and, accordingly, the § 2244 gatekeeping standards properly apply-
B.
We next turn to the District Court’s conclusion that Frankenberry’s petition was an attempt to file an unauthorized second or successive petition under § 2254. Frankenberry contends that the current petition, while concededly not his first habeas corpus petition, should not be considered “second or successive.” See Response at 6 (“[T]he instant habeas petition ... must be considered a first habeas petition.”).
First, Frankenberry argues that the District Court dismissed his first habeas corpus petition as unexhausted, so it does not “count” for purposes of determining whether his subsequent petitions are successive. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). However, the District Court did not dismiss his first petition as unexhausted. The District Court denied the petition on the merits.4 *337Accordingly, Marbinez-Villareal does not apply.
Next, Frankenberry argues that, when he filed his first habeas corpus petition, he attempted to proceed under 28 U.S.C. § 2241, but the District Court “recharac-terized” his petition under 28 U.S.C. § 2254 without providing prior notice pursuant to Castro v. United States, 540 U.S. 875, 383, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). Frankenberry has failed to establish that the District Court “recharacter-ized” his first habeas corpus petition. The Docket Sheet from that action reflects that Frankenberry filed a document entitled “APPLICATION for Leave to Amend 28 U.S.C. § 2254 w/ petition,” along with an amended petition, in April 1991. See Response Exhibit B-l (Docket, Civ. Action No. 91-cv-241 (W.D.Pa.)). The District Court granted Frankenberry’s motion to amend. Thus, Frankenberry himself sought relief under § 2254.
C.
Frankenberry’s initial submissions stated that he filed the instant petition pursuant to 28 U.S.C. § 2241 rather than § 2254. To the extent Frankenberry continues to attempt to proceed under § 2241, we agree with the District Court’s conclusion that he is not entitled to do so. A state prisoner who, like Frankenberry, is challenging the validity or execution of his state court sentence must proceed under 28 U.S.C. § 2254. See Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir.2001).
Frankenberry argues that he may proceed under § 2241 pursuant to In re Dor-sainvil, 119 F.3d 245, 251 (3d Cir.1997). In In re Dorsainvil, we held that a motion under 28 U.S.C. § 2255 was “inadequate or ineffective” to test the legality of a federal prisoner’s detention where an intervening change in the law had decriminalized the prisoner’s conduct. However, Franken-berry is not a federal prisoner and his claims do not fit within the narrow In re Dorsainvil exception. Frankenberry essentially claims that § 2241 should apply because his past attempts to proceed under § 2254 were unsuccessful. We have held that § 2241 does not apply merely so that a petitioner may avoid AEDPA’s strict gatekeeping requirements. See Coady, 251 F.3d at 484-85.
III. Conclusion
For all of the foregoing reasons, the District Court properly dismissed the petition as an attempt to file a second or successive habeas corpus petition under § 2254 without first obtaining the necessary authorization under § 2244.5 See 28 U.S.C. §§ 2244, 2254. Having closely reviewed the record, we conclude that there is no substantial question to be presented on appeal. We will therefore summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
. Frankenberry raised three claims of trial court error and one claim that he was sentenced in violation of the Interstate Agreement on Detainers Act. The District Court concluded that the three trial error claims lacked merit. See Frankenberry v. Morgan, Docket No. 21, Report and Recommendation, Civ. Action No. 91-0241 (W.D.Pa. Jan. 27, 1992). The District Court concluded that the Detainers Act claim was unexhausted and procedurally defaulted and Frankenberry did not establish a basis to excuse the procedural default. Id.
. With respect to Frankenberry’s 1999 attempt to seek habeas corpus relief, we concluded that, under In re Minarik, the claims Frankenberry wished to raise would have been dismissed under the pre-AEDPA standard and there was no impermissible retroactive application of AEDPA’s gatekeeping standards. See In re Frankenberry, C.A. No. 01-1890 (3d Cir. May 17, 2001).
. Under AEDPA, Frankenberry would be required to apply to this Court to file a second or successive petition, and must make a prima facie showing that any claim he wishes to raise either relies upon a new, retroactively applicable rule of constitutional law or upon newly discovered evidence of actual innocence. See 28 U.S.C. § 2244(b)(2); In re Olo-pade, 403 F.3d 159, 162 (3d Cir.2005). We note that, if Frankenberry had filed the instant petition as a § 2244 application in this Court, the record does not reflect that his claims would meet the § 2244 standard.
.Although the District Court concluded that one claim was unexhausted, it further found that the claim was procedurally defaulted and Frankenberiy did not establish a basis for excusing the procedural default. See Frankenberry v. Morgan, Docket No. 21, Report and Recommendation, Civ. Action No. 91-0241 (W.D.Pa. Jan. 27, 1992); see also, e.g., Carter v. United States, 150 F.3d 202, 205-06 (2d Cir. 1998) (a denial based on a procedural default not overcome by a showing of cause *337and prejudice constitutes an adjudication on the merits).
. We will not address the District Court's alternative conclusion that Frankenberry’s claims lacked merit. See Goldblum v. Klem, 510 F.3d 204, 217 (3d Cir.2007) (citing Benchoff v. Colleran, 404 F.3d 812, 816 (3d Cir. 2005)) ("Unless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.”).
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PER CURIAM: *
The attorney appointed to represent Bennie D. Emeary, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 *553U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Emeary has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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OPINION
PER CURIAM.
On January 29, 2008, John R. Demos, Jr., an inmate in the State of Washington, filed in the District Court for the District *342of the Virgin Islands a pleading titled “writ of quo warranto, or in the alternative, a civil claim against the President of the United States of America,” purportedly pursuant to 28 U.S.C. § 1651. Although his pleading is largely illegible, Demos appears to claim, among other things, that then-President George W. Bush engaged in “employer discrimination” by failing to hire Demos “for the job of U.S. Secretary of State.” Pleading at 9.
On September 23, 2009, the District Court entered an order dismissing the matter for failure to prosecute because Demos had neither served the defendants nor sought leave to proceed in forma pau-peris. Demos timely filed this appeal.
We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm because the appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6.
The record reflects that Demos neither paid the fees nor submitted a motion in the District Court for leave to proceed in forma pauperis. His suit was thus properly dismissed on that basis alone.1 The filing fee issue aside, Federal Rule of Civil Procedure 4(m) provides that if service is not made within 120 days after the complaint is filed, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Id. Although Demos asserts on appeal that he served the complaint, see “Petitioner’s Rebuttal” at 2, there is no record evidence to support that assertion. Under Rule 4(?), “[u]nless service is waived, proof of service must be made to the court.... [P]roof must be made by the server’s affidavit.” Demos did not demonstrate proper service.
For these reasons, we will affirm the order dismissing this matter for failure to prosecute.
. We note that Demos is a litigant with "three strikes” under 28 U.S.C. § 1915(g). To the extent that he filed the present suit under "28 U.S.C. § 1651” in a thinly veiled attempt to evade the provisions of the Prison Litigation Reform Act, the District Court should have required Demos either to pay the filing fee for a civil action in full, or to demonstrate "imminent danger of serious physical injury” within the meaning of § 1915(g) if he wished to proceed in forma pauperis.
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OPINION
PER CURIAM
On August 27, 2009, John R. Demos, Jr., an inmate in Washington State, filed in the District Court for the District of the Virgin Islands a pleading in which he requested, among other things, a declaratory ruling that he is being held in violation of Article 36(b)(1) of the Vienna Convention on Consular Relations. According to Demos, his incarceration violates the Vienna Convention because he owes allegiance to “foreign power[s]” — ie., “the Vatican, and the Rothschild family of France.” Compl. at 2. The District Court dismissed the matter for lack of jurisdiction. Demos appeals.
We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm the District Court’s judgment because the appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6. Demos made no showing at all to establish that a Virgin Islands District Court has jurisdiction over his purported request for declaratory relief.1
. To the extent that Demos sought some form of habeas relief, and to the extent that a certificate of appealability ("COA”) is necessary for this appeal, a COA is denied.
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OPINION OF THE COURT
PER CURIAM:
Appellant Samuel O. Rivera-Padilla was charged with possession of a gun by an illegal alien in violation of 18 U.S.C. § 922(g); making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A); and making a false claim of United States citizenship in violation of 18 U.S.C. § 911. Prior to trial, he filed a motion to suppress evidence which was granted in part and denied in part. Rivera-Padilla then pled guilty, while preserving his right to appellate review of the District Court’s ruling denying the bulk of his suppression motion. We will reverse.
I.
The relevant facts are not in dispute. Special agents of the United States Immigration and Customs Enforcement Agency (“ICE”) arrived at Rivera-Padilla’s home in Reading, Pennsylvania, at 6:30 in the morning with an arrest warrant charging him with immigration offenses. Rivera-Padilla answered their knock on his front door wearing a pair of boxer shorts. He immediately acknowledged that he was the individual they were seeking. They handcuffed him in his living room and conducted a protective sweep of both floors of the home.
Special Agent Michael Pausic asked Rivera-Padilla where his clothes were and whether he had any identification. Rivera-Padilla told Pausic to go to the upstairs bedroom facing the street. When Pausic reached that bedroom, he saw a closed wallet lying on the bed. He seized the wallet, opened it, and searched its contents. He hoped to find confirmation of Rivera-Padilla’s identity and evidence of his country of origin. Among those contents was a gun permit. His inspection revealed that it belonged to Rivera-Padilla. Agent Pausic did not ask Rivera-Padilla to consent to the search or whether there was identification inside the wallet.
Agent Pausic, without informing Rivera-Padilla of his Miranda rights, called down the stairs to Rivera-Padilla and asked him where the firearm was. Rivera-Padilla responded that it was in a box in the closet of the same bedroom. Pausic located a lock-box on a shelf in the closet but was unable to locate a key. When asked, Riv*345era-Padilla told him that the keys were on the dresser. In the lock-ox, Pausic found a handgun.1 The agents then let Rivera-Padilla dress and drove him to the Philadelphia ICE facility, a trip that consumed an hour and a half to two hours.
The agents processed Rivera-Padilla and placed him by himself in a holding cell. Approximately five hours after his arrest in Reading, Pausic and another agent conducted the second interrogation of Rivera-Padilla. Pausic, who had conducted the earlier, unwarned interrogation of Rivera-Padilla, also led this second interrogation. This time, Pausic gave Rivera-Padilla the Miranda warnings. Rivera-Padilla acknowledged and waived his Miranda rights. Pausic then interviewed Rivera-Padilla. Rivera-Padilla confessed to ownership of the gun and to making false statements in the gun permit application.
Rivera-Padilla moved to suppress the gun, the gun permit, and his inculpatory statements. The District Court held that the search of the wallet and seizure of the gun permit were lawful. While it agreed with Rivera-Padilla that the inculpatory statements made in his home without Miranda warnings should be suppressed, it further held that this violation of his Fifth Amendment rights did not require suppression of the gun or the statements made at the ICE facility.
II.
By its very terms, the Fourth Amendment affords protection against unreasonable searches and seizures of a person’s “effects.” U.S. Const, amend. IV. Accordingly, a warrantless search of a closed wallet is an unreasonable search under the Fourth Amendment unless it is justified by one of the recognized exceptions to the warrant requirement. United States v. Berenguer, 562 F.2d 206 (2d Cir. 1977). Here, the government acknowledges that Rivera-Padilla did not consent to the search of the wallet. Nor does it contend that it was . a search of Rivera-Padilla’s person and surrounding area incident to his arrest. Rather, the government insists that Pausic’s actions were justified by the “plain view” exception to the Fourth Amendment warrant requirement.
The Supreme Court explained the “plain view” doctrine and the rationale behind it in Minnesota v. Dickerson, 508 U.S. 366, 875, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (citations omitted; brackets in original):
Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.
The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point.
Agent Pausic was authorized to enter Rivera-Padilla’s home for the purpose of *346arresting him. After accomplishing that task and associated precautionary measures, he decided that he would look for evidence tending to confirm Rivera-Padilla’s identity and establish his country of origin, a search which he was not authorized to make. While the plain view doctrine might arguably have extended his authority to seize such evidence had it been in plain view, no such evidence, or any other incriminating evidence, was in plain view. All that was in plain view was an ordinary wallet whose contents, in which Rivera-Padilla retained a reasonable expectation of privacy, were not visible. It was not until Pausic searched inside the wallet that the gun permit came into plain view. The plain view doctrine does not authorize an otherwise unauthorized search, even if it is a fruitful one. Indeed, the plain view doctrine does not authorize searches; by definition, it only authorizes seizures of items in plain view to which the officer has a right of access. See Dickerson, 508 U.S. at 375, 113 S.Ct. 2130.
In Berenguer, the Court of Appeals for the Second Circuit was confronted with a situation almost identical to the one before us. Berenguer was arrested in his apartment on a drug charge. After he had been shackled and placed on a bed, the arresting agents conducted a protective sweep of the apartment. They observed a billfold, which when searched was found to contain approximately $3,200 in $100 bills. The District Court declined to suppress the cash, relying on the “plain view” doctrine. The Court of Appeals reversed because that doctrine required that “the incriminating nature [of the seized item] must be immediately apparent,” and this requirement was clearly not met. Berenguer, 562 F.2d at 210. There, as here, the “billfold offered no immediately apparent evidence of an inculpatory nature. It was only after the billfold itself had been searched that the large denomination currency was revealed.” Id.
The “plain view” doctrine did not authorize the search of Rivera-Padilla’s wallet under the circumstances before us.2
III.
The government acknowledges that, if the search and seizure of Rivera-Padilla’s wallet were unlawful, the gun permit and the gun must be suppressed as “fruits of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It insists, however, that Rivera-Padilla’s confession at the ICE facility would remain admissible evidence even if the wallet search and seizure violated the Fourth Amendment.
The parties agree on the factors to be considered in determining whether this confession was fruit of the Fourth Amendment violation: Miranda warnings do not alone break the causal connection between the illegality and the confession. They are, however, an important factor to be considered in determining whether the confession was obtained by exploitation of an illegal search and seizure. Also to be considered are the temporal proximity between the illegality and the confession, the presence of intervening circumstances, and “particularly, the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The government bears the burden of establishing, based on the totality of the circumstances, that *347there was a break in the chain of causation between the constitutional violation and the later confession. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).
We conclude that the government has not carried its burden. Each step in the chain of events from the discovery of the gun permit to the confession of the crime of conviction followed directly and quickly from the preceding step. Agent Pausic immediately used the gun permit to extract incriminating statements from Rivera-Padilla and to find the gun. Thereafter, in the space of only a few hours all in uninterrupted detention, the permit, gun, and incriminating, un-Mirandavzed statements were used to extract a full confession. The temporal separation between the unlawful search and the confession was about five hours, and there were no intervening events to break the chain. Rivera-Padilla had no contact with anyone other than ICE agents, he was not taken before a magistrate, and he had no contact with a lawyer. And the misconduct of Agent Pausic was serious indeed. But for his utilization of the fruits of his Fourth and Fifth Amendment violations, we are confident there would have been no confession to the crime of conviction.
IV.
Rivera-Padilla mounts a second challenge to his conviction. He contends that the felon-in-possession statute, 18 U.S.C. § 922(g), under which he was convicted is unconstitutional on its face because it does not constitute a valid exercise of Congress’ authority under the Commerce Clause. He also insists that it is unconstitutional as applied to him in this case in the absence of evidence that his alleged intrastate possession of the gun was in or affected interstate commerce. Rivera-Padilla candidly acknowledges, however, that this Court has explicitly upheld the constitutionality of this statute despite consideration of these arguments, see United States v. Singletary, 268 F.3d 196 (3d Cir.2001), and that he asserts them here solely to preserve them.
V.
We will reverse the judgment of the District Court and remand with instructions to grant Rivera-Padilla’s motion to suppress in full.
. The District Court did suppress Rivera-Padilla's statement as to where in the house the gun was located, ruling that the fruit of the poisonous tree doctrine does not apply to Fifth Amendment violations, citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). This issue was not appealed. As noted hereafter, however, the discovery of the gun was clearly a direct result of the illegal search of the wallet, absent which Agent Pausic would not have asked Rivera-Padilla about the existence or location of the gun.
. Here, as in Berenguer, ”[n]o claim is made here that the money was taken to the station house and inventoried for appellant's protection .... Such a claim would be inconsistent with the government’s contention that it seized evidence whose incriminating nature was readily apparent.” Berenguer, 562 F.2d at 211, n. 7.
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Molfetta Industries, Co, Inc. (“Molfetta Industries”) and Molfetta Construction (“Molfetta Construction”) (collectively “Molfetta”) appeal from the District Court’s confirmation of an arbitration award in favor of New Jersey Building Laborers District Council and Local 325, Laborers’ International Union of North America (collectively the “Union”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summa*349rize the essential facts. On September 2002, Molfetta Construction signed a contract to perform work on a highway construction project in Hoboken, New Jersey known as the Jackson and Observer job site. Appendix (“App.”) 131. On December 13, 2002, Michael Nirchio signed a collective bargaining agreement with the Union on behalf of Molfetta Industries (the “CBA”). App. 102. The CBA required Molfetta to give the Union the first opportunity to provide laborers for all of its construction jobs in New Jersey. App. 39-40. The CBA applies to work performed by Molfetta Industries “under its own name,” as well as to any work performed
under the name of another entity (whether a corporation, company, partnership, joint venture, or any other business entity) where [Mofietta Industries], including its owners, stockholders, officers, directors, or partners, exercise either directly or indirectly (such as through family members or company employees) any significant degree of ownership, management or control.
App. 85.1 On March 5, 2003, Nirchio executed a short form agreement on behalf of Molfetta Construction, agreeing to bind Molfetta Construction “to all the provisions, terms and conditions of’ the CBA. App. 103.
Notwithstanding these written contractual provisions, Molfetta argues that the Union, through its representative Lou Mosca, agreed to allow Molfetta to operate as a “double-breasted” company, with Mol-fettta Industries operating as a union contractor and Molfetta Construction operating as a non-union contractor. App. 132-33.
Molfetta also argues that during a March 2004 meeting, Mosca solicited a bribe from Nirchio in March 2004, offering to “take care of the problem” involving the Union for $5,000. App. 132-33. On February 6, 2008, Mosca was charged in a federal indictment with honest services mail fraud in violation of 18 U.S.C. §§ 1341, 1346 and 2, and embezzlement of union assets in violation of 29 U.S.C. § 501(e) and 18 U.S.C. § 2.App. 206-07. The indictment charges, inter alia, that “Louis Mosca agreed to accept and accepted a thing of value ... with the intent to be influenced in his decisions” as a Union representative. Id.
In September 2007, the Union submitted a request for arbitration with the New Jersey State Board of Mediation, contending that Molfetta had violated the terms of the CBA by failing to employ Union laborers at the Jackson and Observer job site. The arbitrator held a hearing on January 3, 2008 and issued a written decision on April 11, 2008. The arbitrator acknowledged the arguments raised by Molfetta, but concluded that the CBA completely and unambiguously expressed the terms of the parties’ agreement. App. 122-24. Since the CBA obligates Molfetta to offer the Union the opportunity to supply laborers for construction jobs in New Jersey and Molfetta used non-union labor for the Jackson and Observer job site, the arbitrator awarded the Union $77,356 in lost wages, along with costs and fees. App. 125. On May 20, 2008, Molfetta requested that the arbitrator re-open the hearing to allow a witness to testify concerning the allegation that Mosca had solicited a bribe, but the arbitrator declined this request.
*350On June 4, 2008, the Union petitioned the District Court to confirm the arbitration award, and Molfetta moved to vacate the award or remand the case to the arbitrator for further proceedings. The District Court rejected Molfetta’s arguments that the arbitrator had committed misconduct and that the arbitration award should be vacated as contrary to public policy. By order dated August 18, 2008, 2008 WL 3833460, the District Court granted the Union’s motion to confirm the arbitration award and denied Molfetta’s motion to vacate or remand. Molfetta timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
This court’s review of the District Court’s decision is plenary, but both courts’ review of an arbitration award is “exceedingly narrow.” Eichleay Corp. v. Int’l Ass’n of Bridge, Structural, & Ornamental Iron Workers, 944 F.2d 1047, 1056 (3d Cir.1991). “The district court may not vacate an arbitration award merely because it would decide the merits differently.” Id. (citing Tanoma Mining Co. v. Local Union No. 1269, United Mine Workers of America, 896 F.2d 745, 747 (3d Cir.1990)). “So long as the arbitration award has some support in the record, and the arbitrator has not manifestly disregarded the law, we will affirm the award.” Id. (citing Tanoma, 896 F.2d at 748-49).
III.
Molfetta argues that the arbitrator committed misconduct by refusing to reopen the arbitration hearing to permit additional testimony regarding the alleged bribe attempt. See Molfetta Br. 13-15 (citing Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 506 v. E.D. Clapp Corp., 551 F.Supp. 570, 577-78 (N.D.N.Y.1982)). Molfetta sought to introduce testimony from another witness to “corroborate Nirchio’s testimony” regarding the bribe attempt and “impeach Mosca’s credibility regarding his failed recollection of his attempt to bribe Nir-chio....” Id. 15.
A court may vacate a labor arbitration award based on the arbitrator’s “misconduct in ... refusing to hear evidence pertinent and material to the controversy,” 9 U.S.C. § 10(a)(3), but the arbitrator’s “error must be one that is not simply an error of law, but which so affects the rights of a party that ... he was deprived of a fair hearing.” Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.1968).
Molfetta does not argue that it was denied the opportunity to present its case at the initial hearing; rather, Molfetta sought to supplement the evidentiary record after the arbitrator had reached his decision. We agree with the District Court that this is not one of the limited circumstances under which an arbitration proceeding must be reopened. See App. 10 (citing Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 332 (3d Cir. 1991)). Molfetta has not established that the arbitrator’s decision deprived Molfetta of a fair hearing.
IV.
Molfetta also argues that the arbitrator’s evaluation of the evidence should be rejected as “in violation of public policy.” Molfetta Br. 17 (citing Acands, Inc. v. Travelers Cas. and Sur. Co., 435 F.3d 252, 255-60 (3d Cir.2006)). Specifically, Molfet-ta contends that the arbitrator’s failure to “consider the federal indictment as probative of Mosca’s credibility ... is in violation of the [Federal Rules of Evidence] and public policy.” Id. 18.
We have held that “courts may refuse to enforce arbitration awards that *351violate well-defined public policy as embodied by federal law.” Acands, 435 F.3d at 258 (citing Exxon Shipping Co. v. Exxon Seamen’s Union, 11 F.3d 1189 (3d Cir. 1994)). However, the only basis for Mol-fetta’s argument is the contention that the arbitrator erred by misapplying the “statutorily promulgated Federal Rules of Evidence.” Molfetta Br. 17. Of course, the arbitrator was not bound by federal procedural rules, see, e.g., Rosensweig v. Morgan Stanley & Co., Inc., 494 F.3d 1328, 1333 (11th Cir.2007), and Molfetta has not established that enforcing the CBA in this case would violate a “well defined and dominant” public policy. Exxon Shipping, 11 F.3d at 1196. We agree with the District Court that none of the issues raised by Molfetta warrants vacating the arbitration award.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The CBA also includes an integration clause, stating that the "relationship of the parties is fully and exclusively set forth by this Agreement and by no other means, oral or written,” App. 27, and an arbitration clause, referring disputes regarding the interpretation of the CBA to the New Jersey State Board of Mediation for final and binding arbitration, App. 88.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Appellant-Petitioner Mahamadou Dara-my appeals the denial of his applications for asylum, withholding of removal, and protection under Article 3 of the UN Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) held that the “law of the case” doctrine precluded Dara-m/s applications because they are “in sum and substance the same applications for relief’ as the ones Daramy previously submitted and which were denied. Additionally, the IJ found Daramy’s applications untimely because they were not filed “within one year after the date of the alien’s arrival in the United States.” The Board of Immigration Appeals (“BIA”) affirmed on both grounds. Daramy filed a timely appeal. We will vacate and remand.1
I.
Daramy is a native and citizen of Sierra Leone. He first arrived in the United States, without inspection or authorization, on or about April 1, 2001. On May 5, 2001, he filed an application for asylum based on race, religion, and nationality; withholding of removal; and protection under CAT. In support of his application, Daramy stated that Revolutionary United Front (“RUF”) rebels attacked his village in 1999, destroyed his family home, shot his parents to death, and took him to a rebel camp, where he was beaten and jailed for refusing to join their cause. Daramy claimed he was freed when the camp was liberated and then traveled to a refugee camp in Guinea, where he spent six months. Dara-my stated that a friend at the camp assisted him in procuring documents and a ticket to come to the United States.
On December 21, 2004, the Department of Homeland Security (“DHS”) served Daramy with a Notice to Appear. The hearing was held before the Immigration *353Court in Seattle, Washington on April 20, 2005, and on November 2, 2005, the IJ denied Daramy’s application. The IJ found Daramy not credible because of “material inconsistencies between [his] testimony and his written statements,” and questioned the authenticity of Daramy’s documents. The IJ also concluded Dara-my’s application was untimely because Daramy did not have a passport and therefore could not prove when he first arrived in the United States. Additionally, the IJ stated that even if Daramy was found credible, the court would deny relief for failure to show that alleged persecution occurred on account of a protected ground: “The respondent testified that he does not know if his family was politically active and he stated no grounds why he or his family was targeted by the rebels other then [sic] to recruit the respondent and his brother into the rebel forces. A recruitment is not a protective ground.” Finally, the IJ noted that country conditions in Sierra Leone had changed since 1999 “to such a material extent that they have rebutted any reasonably [sic] possibility that the respondent would be harmed should he be returned to Sierra Leone.” The IJ also denied CAT protection, finding “no competent credible objective evidence that should the respondent be returned to Sierra Leone,” he would be tortured. Daramy’s request for voluntary departure was also denied because he did not have a valid travel passport.
On November 8, 2005, Daramy filed a motion to reopen and reconsider, arguing that the court made numerous errors in its November 2, 2005 decision. In the alternative, Daramy requested that the court grant him voluntary departure because he had since obtained valid travel documents. On November 29, 2005, the Immigration Court reopened the proceedings and granted Daramy voluntary departure. On the merits, however, the court denied the motion, stating that even if adverse findings regarding Daramy’s credibility were erroneous, the outcome would not change because of the alternative ground for the IJ’s November 2, 2005 decision — material change in country conditions.
On November 30, 2005, Daramy filed a timely appeal with the BIA. During the pendency of the appeal, on or about April 19, 2007, Daramy departed from the United States to Gambia to look for his sister. While he was in Gambia, the BIA affirmed the IJ’s decision, adopting the portions of the IJ’s opinion regarding untimeliness of the asylum application, change in country conditions in Sierra Leone, and lack of evidence for protection under CAT. Dara-my did not file a petition for review with the Court of Appeals for the Ninth Circuit.
On July 8, 2007, Daramy returned to the United States, without inspection or authorization. On July 19, 2007, the DHS served him with a Notice to Appear. At the hearing before the Immigration Court in Newark, New Jersey, on August 2, 2007, Daramy conceded removability. On August 17, 2007, Daramy filed new applications for asylum based on political opinion and membership in a particular social group, withholding of removal, and CAT protection. The factual basis for these applications was the same as that for the applications filed in 2001.
On December 20, 2007, the IJ of the Immigration Court in Newark, New Jersey denied Daramy’s new applications. Finding the applications were “in sum and substance the same applications for relief submitted to the court on April 20, 2005,” the IJ concluded that the law of the case doctrine precluded Daramy from making the same applications for relief. Additionally, the IJ held the applications were untimely because “[w]hile the Respondent ‘last arrived’ in the United States on July 8, 2007 the court finds that the Respondent has in actuality been ‘present’ in the United States since April 2001, except for *354a brief trip to Gambia for the express intention of returning to the United States to reapply for asylum.” Accordingly, the court found “that in determining Respondent[’s] eligibility for asylum, April 2001 and not July 8, 2007, is the date on which RespondentPs] ‘presence’ in the United States commenced.”
Daramy appealed to the BIA, and on April 28, 2008, the BIA adopted and affirmed the IJ’s decision. Specifically the BIA held that “this case involves the litigation of already-disposed-of issues, albeit in new proceedings to remove the same individual,” and “the legal issues decided expressly or by implication in the prior immigration proceedings involving the same individual shall apply under the ‘law of the case’ doctrine in the interests of judicial economy, jurisprudential integrity, and finality in immigration proceedings.” The BIA also adopted the IJ’s “additional finding that the respondent may not now seek asylum as he has failed to file his application within one year of his arrival in the United States,” because his last arrival “followed a temporary departure from the United States rather than a flight from prosecution.”
Daramy filed a timely appeal.2
II.
A.
The BIA affirmed the IJ’s application of the law of the case doctrine to deny relief based on the findings in the initial removal proceedings in 2005. The law of the case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)); see also ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir.2008). “Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal Practice and Procedure § 4478, at 788 (1981)); see also Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 856 (3d Cir.1994). Thus, the law of the case doctrine “do[es] not apply between separate actions.” 18B Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal Practice and Procedure § 4478, at 638-39 (2d ed.2002); see also Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1214 (5th Cir. 1991) (“[The prior case] and the case before us are altogether separate proceedings, so law of the case is inapplicable.”); Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir.1990).
*355The law of the case doctrine is inappo-site to this case because the removal proceedings in question, initiated with service of a Notice to Appear on July 19, 2007 and held in Newark, New Jersey, are separate from the removal proceedings previously initiated with service of a Notice to Appear on December 21, 2004 and held in Seattle, Washington. The IJ applied the law of the case doctrine based on Daramy’s concession “that his applications for relief submitted to this court on August 17, 2007 are in sum and substance the same applications for relief submitted to the court on April 20, 2005.” The BIA correctly noted that “this case involves the litigation of already-disposed-of issues, albeit in new proceedings to remove the same individual.” But its legal conclusion that “[i]n such a situation, the legal issues decided expressly or by implication in the prior immigration proceedings involving the same individual shall apply under the ‘law of the case’ doctrine’ ” was erroneous because the law of the ease doctrine does not apply to separate actions.
The IJ and BIA relied on legal authorities applying the law of the case doctrine in the same case, not separate cases. In In re S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007), the BIA held that the IJ’s adverse credibility determination, which was affirmed by the BIA and not appealed to the Court of Appeals, remained the law of the case on remand from a subsequent appeal on a separate issue. Therefore, In re S-Y-G- involved the same removal proceedings. The BIA also cited In re City of Phila. Litig., 158 F.3d 711 (Sd Cir.1998), where we stated that “[u]nder the law of the ease doctrine, one panel of an appellate court generally will not consider questions that another panel has decided on a prior appeal in the same case.” Id. at 717. Finally, the Operating Policy and Procedure Memorandum 01-02-Changes of Venue,3 from the Office of the Chief Immigration Judge, instructs immigration judges to follow the law of the case doctrine in cases where venue is changed. Here, no change of venue took place — the removal proceedings in Newark, New Jersey were separate from those in Seattle, Washington. The IJ and the BIA erred in applying the law of the case doctrine here because the doctrine is inapplicable in the context of separate proceedings.4
*356B.
The BIA also affirmed the IJ’s “additional finding that the respondent may not now seek asylum as he has failed to file his application within one year of his arrival in the United States.”5 Asylum cannot be granted “unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). “The 1-year period shall be calculated from the date of the alien’s last arrival in the United States or April 1, 1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii) (2009). The term “last arrival” is not defined by statute or its implementing regulations.
The IJ relied on Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir.2006), where the Court of Appeals for the Second Circuit held that “the term ‘last arrival in the United States’ should not be read to include an alien’s return to the United States after a brief trip abroad pursuant to a parole explicitly permitted by United States immigration authorities.” Id. at 179. Notably, the Court of Appeals for the Second Circuit did not have the benefit of the BIA’s interpretation of this provision. Id. at 178 (“When, however, as is the case before us, the BIA summarily affirms a decision of an immigration judge, we do not extend [ ] deference to the IJ’s statutory interpretations.” (internal citations omitted)). Instead, the court noted that “in other contexts ‘last arrival [in] the United States’ has been taken to exclude returns from temporary departures from the country.” Id. at 179. Further, the court concluded its interpretation “best accords with the purpose of the statute as a whole.” Id. Specifically, the court observed that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, which added the 1-year deadline to the Immigration and Nationality Act (“INA”), aimed to address “the abuse of humanitarian provisions such as asylum.” Id. at 180 (quoting S.Rep. No. 104-249, at 3 (1996)). Accordingly, the court concluded that “[permitting applicants to reset the asylum clock by taking a short excursion abroad would undermine the one-year deadline’s clear purpose of focusing the asylum process on those who have recently fled persecution in their home countries.” Id.
Although the IJ in this case relied on the reasoning of Joaquin-Porras, and the BIA affirmed, a subsequent decision by the BIA in In re F-P-R- 24 I. & N. Dec. 681 (BIA 2008), adopted an opposite viewpoint and rejected Joaquin-Porras’s interpretation. The relevant facts of In re FP-R- are similar to this case. The petitioner, a native and citizen of Mexico, initially arrived in the United States in 1983 without inspection. Later that year, he *357returned to Mexico where he stayed until returning to the United States without inspection in 1989. He remained in the United States without lawful status until he returned to Mexico on June 17, 2005, to attend a funeral. He then returned to the United States on July 20, 2005, when he was apprehended and placed in removal proceedings. The petitioner conceded re-movability and filed an application for asylum. Id. at 681-82. The IJ found the petitioner “ineligible for asylum as a result of his failure to file ... within 1 year of his ‘last arrival’ in the United States,” adopting the rationale of Joaquin-Porras to calculate the petitioner’s “1-year period of eligibility to apply for asylum from his second arrival in the United States in 1989 instead of his most recent coming to this country on July 20, 2005.” Id. at 682.
The BIA sustained the appeal, giving the term “last arrival” its ordinary meaning of the “alien’s most recent coming or crossing into the United States after having traveled from somewhere outside of the country.” Id. at 688. The BIA also held that under 8 C.F.R. § 1208.4(a)(2)(ii) (2008), “the identification and use of the date of the alien’s last arrival in the United States for purposes of calculating the 1-year filing period is mandatory, not discretionary or conditional.” Id. at 684. Therefore, it concluded that the IJ erred in calculating a 1-year filing period on the basis of the prior arrival date. Id.
In reaching its holding, the BIA explicitly rejected the reasoning of Joaquin-Por-ras. See id. (“We disagree with Joaquin-Porras in that we discern no basis for construing the regulation as not taking into account entries that occurred after brief absences from the United States.”). The BIA observed that the IIRIRA’s “legislative history provides no direct insight into the Attorney General’s intent in promulgating the clear regulatory text through which he implemented his delegated authority to administer, interpret, and enforce the 1-year filing period.” Id. at 685. The BIA recognized that “the literal construction of the term ‘last arrival’ may have the potential to permit certain aliens to defeat the purpose of the 1-year asylum filing deadline by making a brief trip abroad for the sole or principal purpose of evading the time bar and resuscitating the ability to seek asylum.” Id. Because it was not disputed in that case that the petitioner’s trip was for a legitimate purpose, the BIA did not “examine whether the regulation should be read to embody an implicit exception in a case where it is found that an alien’s trip abroad was solely or principally intended to overcome the 1-year time bar.” Id.
We must accord deference to the BIA’s interpretation of the one-year deadline provision in 8 U.S.C. § 1158(a)(2)(B) and corresponding implementing regulation, 8 C.F.R. § 1208.4(a)(2)(h). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that “principles of Chevron deference are applicable” in the immigration context and emphasizing that “judicial deference to the Executive Branch is especially appropriate in the immigration context”); see also Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005) (stating we “will afford Chevron deference to the BIA’s reasonable interpretations of statutes with which it is charged with administering” (internal citations omitted)). Because Congress did not define the term “the date of the alien’s arrival” in 8 U.S.C. § 1158(a)(2)(B), “the agency’s interpretation is given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute.” United States v. Geiser, 527 F.3d 288, 292 (3d Cir.2008) (internal quotations omitted). Further, “an agency’s interpretation of its own regulation[ ] is ‘controlling unless plainly erroneous or inconsistent with the regula*358tion.’ ” Star Enter. v. EPA, 235 F.3d 139, 147 (3d Cir.2000) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).
In re F-P-R- is the BIA’s controlling precedent interpreting 8 U.S.C. § 1158(a)(2)(B) as implemented by 8 C.F.R. § 1208.4(a)(2)(ii). The BIA’s interpretation is not plainly erroneous or inconsistent with the statute or regulations; it employed a sound plain meaning canon of construction. See Bonneville Int’l. Corp. v. Peters, 347 F.3d 485, 491 (3d Cir.2003) (“We begin the process of statutory interpretation with the plain meaning of the statute — we must first consider the text.” (internal citation omitted)); cf. Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 152-53 (3d Cir.2004) (“[A]n agency’s interpretation of its own regulations is not entitled to substantial deference by a reviewing court where an alternative reading is compelled by the regulation’s plain meaning .... ” (internal quotation marks omitted)).
Under In re F-P-R-, Daramy’s asylum application might not be barred by the 1-year deadline. Like the petitioner in In re F-P-R-, Daramy applied for asylum shortly after arriving in the United States, albeit following prior presence in the country. The IJ’s application of a one-year bar is inconsistent with the BIA’s current interpretation and must be reexamined. On remand, the BIA can consider whether Daramy’s application is barred under its current interpretation of 8 U.S.C. § 1158(a)(2)(B), as implemented by 8 C.F.R. § 1208.4(a)(2)(h), and remand to the Immigration Court for further development of the factual record if required.
III.
For the reasons set forth above, we will vacate the decision of the BIA and remand to the BIA for proceedings consistent with this opinion.
. The BIA had jurisdiction over this matter under 8 C.F.R. § 1003.1(b)(3), which grants it appellate jurisdiction over decisions of immigration judges in removal cases. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Removal proceedings occurred in Newark, New Jersey, and venue is therefore proper under 8 U.S.C. § 1252(b)(2).
. Where "the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We exercise plenary review over an agency’s legal determinations, "subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008) (citing Briseno-Flores, 492 F.3d at 228 (3d Cir.2007) and Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004)). We must uphold the factual findings if they were "supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) ("Under the substantial evidence standard, [the agency’s factual findings] must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”).
. Available at http://www.justice.gov/eoir/ efoia/ocij/oppmOl/OPPMO l-02.pdf.
. Our holding need not disturb the BIA’s asserted "interests of judicial economy, jurisprudential integrity, and finality in immigration proceedings.” Traditional res judicata principles have been applied in immigration proceedings. See, e.g., Duvall v. Att’y Gen., 436 F.3d 382, 386-90 (3d Cir.2006); Medina v. INS, 993 F.2d 499, 503-04 (5th Cir.1993); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987); Matter of Fedorenko, 19 I. & N. Dec. 57, 61-67 (BIA 1984); see also Restatement (Second) of Judgments § 83. But although "[t]he doctrine of law of the case is similar to the issue preclusion prong of res judicata in that it limits relitigation of an issue once it has been decided," the doctrines are distinct. Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir.1999). "[L]aw of the case is concerned with the extent to which law applied in a decision at one stage of litigation becomes the governing principle in later stages of the same litigation. Res judi-cata does not speak to direct attacks in the same case, but rather has application in subsequent actions.” Id. But we will not apply res judicata rules in the first instance. See Konan v. Att'y Gen., 432 F.3d 497, 501 (3d Cir.2005) ("[A] reviewing court is powerless to decide in the first instance issues that an agency does not reach.”); see also INS v. Ventura, 537 U.S. 12, 18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The BIA can consider those principles in the first instance, and remand to the Immigration Court to further develop the factual record as might be necessary. The BIA may also wish to consider in the first instance whether the statutory bar under 8 U.S.C. § 1158(a)(2)(C) applies to Daramy’s second asylum application. We express no opinion on the merits of these issues or whether they have been preserved.
. We generally do not have jurisdiction to review the Attorney General’s determinations regarding the one-year deadline provided in 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).”). However, we have jurisdiction to review any "constitutional claims or questions of law” raised in a petition for review, notwithstanding "any other provision of this chapter ... which limits or eliminates judicial review.” 8 U.S.C. § 1252(a)(2)(D). The proper interpretation of the 1-year deadline in 8 U.S.C. § 1158(a)(2)(B) is a question of law over which we have jurisdiction. See Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir.2006); see also Khunaverdiants v. Mukasey, 548 F.3d 760, 765-66 (9th Cir.2008); Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (“As the government concedes, the proper interpretation of the one-year deadline provision of 8 U.S.C. § 1158(a)(2) is a question of law over which we have jurisdiction under the REAL ID Act.”).
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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/8477502/
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*360OPINION OF THE COURT
DIAMOND, District Judge.
On May 7, 2008, after a three-day trial, the jury convicted Usiku Rankin of drug trafficking and firearms offenses. Rankin timely appealed, and his counsel submitted a brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rankin filed two pro se briefs in support of his appeal. For the reasons that follow, we will grant Counsel’s motion and affirm Rankin’s conviction and sentence.
I.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
Because we write primarily for the Parties, we will set forth only those facts necessary to our analysis. On January 30, 2008, the grand jury sitting in the Middle District of Pennsylvania charged Rankin with two counts of possession of firearms in furtherance of drug trafficking; one count of distribution and possession with intent to distribute cocaine base, heroin, and marijuana; one count of distribution and possession with intent to distribute cocaine base, heroin, and marijuana in a school zone; one count of possession of firearms by a convicted felon; one count of possession of body armor by a convicted felon; and one count of use of a communication facility to facilitate drug trafficking. See 18 U.S.C. § 924(c)(1)(A)®; 21 U.S.C. § 841(a)(1); 21 U.S.C. § 860(a) and (b); 18 U.S.C. § 922(g); 18 U.S.C. § 931(a); 21 U.S.C. § 843(b). The jury convicted Rankin of all charges.
After trial, the District Court granted Rankin’s unopposed motion for acquittal on Count IV (distribution and possession with intent to distribute cocaine base, heroin, and marijuana in a school zone) and Count VI (possession of body armor by a convicted felon). The Court sentenced Rankin to 316 months imprisonment.
Rankin filed a timely notice of appeal. Concluding that he could raise only frivolous appellate issues, Rankin’s counsel submitted a motion to withdraw and a supporting brief.
III.
The Anders Court directed that “if counsel finds his [client’s appeal] to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” 386 U.S. at 744, 87 S.Ct. 1396. In doing so, counsel must submit a brief addressing any issue that “might arguably support the appeal.” Id.; see also L.A.R. 109.2(a). The Court must then determine whether the appeal is “wholly frivolous.” Anders, 386 U.S. at 744, 87 S.Ct. 1396. In making this determination, the Court evaluates: “(1) whether counsel adequately fulfilled the [L.A.R. 109.2(a) ] requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
Our Local Appellate Rule 109.2(a) “reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation.” Youla, 241 F.3d at 300. The Rule requires that, “[w]here, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders ... which shall be served upon the appellant and the United States.” Id. Once counsel has submitted an Anders motion and brief, we must decide whether the appeal is wholly frivolous. Our inquiry is two-fold, considering first “whether counsel adequately fulfilled the requirements of [Rule *361109.2(a) ],” and, second, “whether an independent review of the record presents any nonfrivolous issues.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)).
IV.
A.
The first prong of Rule 109.2 requires counsel to present sufficient information “to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and ... to explain why the issues are frivolous.” Youla, 241 F.3d at 300. Although counsel need not raise and reject every possible claim, he or she must “provide sufficient indicia that he thoroughly searched the record and the law in service of his client so that we might confidently consider only those objections raised.” Id. (internal quotation marks and citations omitted). After thoroughly reviewing the record in this appeal, we conclude that Counsel has satisfied these requirements.
Counsel identifies seven possible issues for appeal: (1) whether the District Court abused its discretion in declining to excuse a juror for cause; (2) whether we should order a new trial because a Government witness testified that she was telling the truth; (3) whether the District Court improperly allowed a Government expert witness to testify about drug trafficking patterns; (4) whether the District Court erroneously allowed the Government to cross-examine a defense witness outside the scope of direct examination; (5) whether the District Court improperly sustained a government hearsay objection; (6) whether the District Court abused its discretion in calculating the Sentencing Guideline range based on drug quantities described by a Government witness; and (7) whether the District Court’s sentence of 316 months imprisonment was unreasonable. Having submitted an appendix with germane portions of the record, Counsel sets forth in his brief a legal discussion of why these seven issues are frivolous.
It is apparent that Counsel thoroughly reviewed both the record and the law. Accordingly, we conclude that he has satisfied the requirements of Rule 109.2(a)’s first prong.
B.
Rule 109.2’s second prong obligates us review the record and independently determine whether there are any nonfrivo-lous issues for appeal. “[A]n appeal on a matter of law is frivolous where ‘[none] of the legal points [are] arguable on their merits.’” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (alterations in original) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). Although our review is independent, if the Anders brief appears to be adequate on its face, a “complete scouring of the record” is unnecessary. Youla, 241 F.3d at 301. Instead, we can allow the Anders brief to guide our review. Id. In the instant case, because Counsel’s Anders brief is adequate on its face, we will use it to guide our review.
The first issue Counsel raises is whether the District Court abused its discretion in declining to excuse jury panel member “6” for cause. During voire dire, panel member 6 explained that she had a relative who had been threatened by someone wielding a knife. The Court rejected Rankin’s challenge for cause, crediting the panel member’s assurances that she would remain fair and impartial. Rankin subsequently exercised a peremptory challenge to strike panel member 6.
A district court’s decision to seat a juror over counsel’s objection is “entitled, even on direct appeal, to special deference.” *362United States v. Jimenez, 513 F.3d 62, 71 (3d Cir.2008). See also id. (“Determining whether a prospective juror can render a fair verdict lies peculiarly within a trial judge’s province.”). We conclude that the Court acted well within its discretion here. In any event, the defense peremptory challenge to panel member 6 cured any possible error. See Jimenez, 513 F.3d at 72 (citing United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)).
Counsel also challenges two of the District Court’s evidentiary rulings. We review such rulings for abuse of discretion. United States v. Ali, 493 F.3d 387, 391 (3d Cir.2007). Rankin’s ex-girlfriend (a Government witness) testified that although she had testified falsely in the past, she was now telling the truth. The Court overruled Rankin’s objection to that characterization. The Court also overruled Rankin’s objection to the testimony of a Government expert witness respecting drug trafficking patterns. We believe both rulings were well within the Court’s discretion.
Similarly, the Court did not commit error when it overruled Rankin’s objection to the prosecutor’s cross-examination of a defense witness that Rankin believed exceeded the scope of the witness’s direct examination. Lis v. Robert Packer Hosp., 579 F.2d 819 (3d Cir.1978).
The District Court sustained on hearsay grounds the prosecutor’s objection to Rankin’s attempt to elicit from a Government witness (Rankin’s ex-girlfriend) that “she intended to get Mr. Rankin back.” (Anders brief at 24.) We agree with Counsel that the District Court erred in sustaining this objection. See Fed.R.Evid. 803(3) (testimony about a de-clarant’s “then existing state of mind, emotion, sensation, or physical condition” is not hearsay). We again agree with Counsel that this error was certainly harmless. Rankin extensively cross-examined the witness with other statements she had made that she intended to harm Rankin. Indeed, defense counsel read to the jury an angry letter she had written to Rankin. Moreover, given the strength of the Government’s case — including six eyewitnesses to Rankin’s drug dealing activities — the exclusion of this cumulative evidence could not have affected the jury’s verdict. See Ali, 493 F.3d at 392 n. 3 (“[I]n light of the overwhelming evidence presented at trial, any error would have been harmless.”).
We next turn to the sentencing issues raised by Counsel. We examine Rankin’s sentence for procedural and substantive reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The District Court correctly calculated Rankin’s Guidelines range to be 316 to 382 months’ imprisonment, appropriately relying on the drug weight calculation in Probation’s Presentence Report. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). The District Court noted that it found credible the testimony of the Government witness on which Probation based its drug quantity determination. Because Rankin did not file a motion for downward departure, the District Court then considered the 18 U.S.C. § 3553(a) factors and imposed sentence. In these circumstances, we conclude that the District Court’s sentence was procedurally sound.
Given the Court’s discussion of Rankin’s long and serious criminal history and the seriousness of the instant offenses, we cannot say that the low-end Guideline sentence of 316 months imprisonment was substantively unreasonable. See United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006).
*363In sum, our independent review of the issues raised the Anders brief confirms that Rankin’s issues for appeal have no arguable merit.
C.
In light of Counsel’s decision to submit an Anders brief, Rankin was entitled to submit his own brief in support of his appeal. See L.A.R. 109.2(a). Accordingly, we turn next to any additional arguments Rankin makes in his pro se briefs: (1) his trial counsel was ineffective; (2) the Commonwealth manufactured and presented false evidence and testimony; (3) he was selectively prosecuted; (4) his crack and heroin sales should have been charged and tried separately; and (5) the District Court should have granted his motion for an acquittal. See Youla, 241 F.3d at 301. None of these contentions has any arguable merit.
We will not review Rankin’s ineffective assistance claim on this direct appeal because his lawyer’s purported ineffectiveness is not apparent from the record. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003) (“It has long been the practice of this [C]ourt to defer the issue of ineffectiveness of trial counsel to a collateral attack.”)
Because the remaining issues were not preserved at trial, we will review them for plain error. United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir.2002). There is nothing before us — other than Rankin’s sweeping allegations — even to suggest that Rankin was selectively prosecuted or that the Commonwealth created or presented false evidence and testimony. It was permissible to charge and try together Rankin’s heroin and crack sales. See United States v. Eufrasio, 935 F.2d 553, 570 (3d Cir.1991); United States v. Bullock, 71 F.3d 171, 174 (5th Cir.1995) (“Joinder of charges is the rule rather than the exception ... ”). Finally, the District Court properly denied the motion for acquittal: the trial evidence was sufficient to permit a finding of guilt beyond a reasonable doubt. United States v. Brodie, 403 F.3d 123, 134 (3d Cir.2005).
In sum, we find that issues raised by Rankin in his original and supplemental pro se briefs are frivolous.
V.
Because we conclude that Counsel has satisfied his obligations under Anders, we grant his motion to withdraw. We further conclude that it is not necessary to appoint counsel to file a petition for rehearing in this Court or a petition for writ of certio-rari in the United States Supreme Court on Rankin’s behalf. See Local Appellate Rule 109.2(b). Finally, because Rankin’s appeal presents no meritorious arguments, we dismiss his appeal and affirm the judgment of the District Court.
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01-04-2023
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11-05-2022
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*365OPINION OF THE COURT
CHAGARES, Circuit Judge.
Kevin Knox appeals from a District Court order affirming the denial of Disability Insurance Benefits and Supplemental Security Income under the Social Security Act by the Commissioner of Social Security (the “Commissioner”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. On June 3, 2003, Knox filed an application for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act, alleging disability since March 16, 2002 due to HIV and pulmonary hypertension. The Commissioner denied his claims, both initially and upon reconsideration. Knox requested a hearing before an administrative law judge (“ALJ”), which was held on December 7, 2006. In a decision issued February 9, 2007, the ALJ found that Knox was not disabled for purposes of receiving Social Security benefits. The Appeals Council denied review, making the ALJ’s February 9, 2007 decision the final decision of the Commissioner. On December 21, 2007, Knox filed a complaint in District Court challenging the denial. The District Court found that the Commissioner’s decision was supported by substantial evidence. By order entered December 9, 2008, 2008 WL 5156672, the District Court dismissed the action. Knox timely appealed.
II.
The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction to review the District Court’s decision under 28 U.S.C. § 1291. Our review is limited to determining whether substantial evidence supports the ALJ’s finding that Knox was not disabled. 42 U.S.C. §§ 405(g), 1383(c); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). “‘Substantial evidence’ has been defined as ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
III.
The Social Security Act authorizes the Commissioner to pay social security benefits to disabled persons. 42 U.S.C. §§ 423(d), 1382. Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is not disabled unless “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Commissioner applies a five-step test to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first two steps require the claimant to demonstrate that he is not currently engaging in substantial gainful activity, and that he is suffering from a severe impairment. Id. If the claimant progresses to step three, then the question becomes “ ‘whether the impairment is equivalent to one of a number of Listed Impairments [articulated in 20 C.F.R. Pt. 404, Subpt. P, App. 1] that the Commissioner acknowledges are so severe as to *366preclude substantial gainful activity.’ ” Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (quoting Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)); see also 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s specific impairment is not a Listed Impairment, the ALJ must consider whether the claimant’s impairment or combination of impairments is “medically equivalent” to a Listed Impairment. See 20 C.F.R. § 404.1526(a). An impairment or combination of impairments is “medically equivalent” to a Listed Impairment if it is “at least equal in severity and duration to the criteria of any [LJisted [I]mpairment.” Id. In other words, the claimant’s impairment “ ‘must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.’ ” Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir.1992) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). A claimant who satisfies step three “is conclusively presumed to be disabled.” Knepp, 204 F.3d at 84 (citation and quotation marks omitted). A claimant who fails at step three must continue to steps four and five.
At step four, the question is “whether the claimant retains the residual functional capacity to perform [his] past relevant work.” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). It is the claimant’s burden to establish an inability to return to his past relevant work. See id. If the claimant satisfies this burden, then the burden of production shifts to the Commissioner to show, at step five, that “there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity.” Plummer, 186 F.3d at 428. This step requires the ALJ to consider the claimant’s residual functional capacity, age, education, and past work experience to determine whether the cumulative effect of all of the claimant’s impairments renders him capable of working. See 20 C.F.R. § 404.1520(g).
IV.
On appeal, Knox argues that the ALJ’s decision is not supported by substantial evidence. Knox argues specifically that the ALJ erred: at step three by failing to find that his conditions met the Listed Impairments; at step four by improperly evaluating the medical evidence; and at step five by posing an inadequate hypothetical to the vocational expert. We agree with the District Court that none of these arguments has merit.
A.
Knox argues that the ALJ erred at step three by failing to find that Knox’s conditions met, individually or in combination, one of the Listed Impairments, specifically 1.04 for “Disorders of the Spine” and 12.06 for “Anxiety related disorders.” For both of these Listed Impairments, the ALJ recognized that aggravating factors must be present for the condition to meet the requirements of the Listings. For Listing 12.06, the ALJ concluded that Knox’s “alleged anxiety related disorder (panic disorder with partial agoraphobia) is not accompanied by a ‘marked’ restriction of the activities of daily living, or ‘marked’ difficulties in maintaining social functioning, or ‘marked’ difficulties in maintaining concentration, or ‘repeated’ episodes of decompensation, or the complete inability to function independently outside the area of his home.” Appendix (“App.”) 16-17 (citations omitted). Knox argues that he suffers from a panic disorder with agoraphobia and phobias of elevators, Knox Br. 50, but the ALJ concluded that the medical evidence did not support Knox’s assertion *367that his condition was sufficiently debilitating within the meaning of the Listings. The ALJ’s determination is supported by substantial evidence.
With respect to Listing 4.04, the ALJ found that Knox’s “musculoskeletal disorders of the cervical and lumbar spine have not resulted in compromise of a nerve root with evidence of nerve root compression characterized [by] neuro-anatomie distribution of pain, marked limitation of motion of the spine, motor loss, [or] sensory or reflex loss.” App. 17. Knox cannot demonstrate his claimed spine disorders were sufficiently aggravated to meet the definition supplied by the regulations. The evidence of “mild bilateral median nerve entrapment neruopathy [sic] (carpal tunnel syndrome) affecting sensory components,” Certified Administrative Record (“Tr.”) 422, reduced range of motion in the neck and lower back, Tr. 251, and “limitations due to osteoarthritis and neuropathy,” Tr. 271, does not compel a conclusion that Knox meets the requirements of the Listings. The ALJ’s evaluation of this Listed Impairment is supported by substantial evidence.
B.
Knox raises two challenges to the ALJ’s determination at step four. First, Knox argues that the ALJ improperly evaluated the medical evidence, contending that the ALJ “failed to give proper credence to the complaints of Mr. Knox concerning his pain, limitation of motion and function, weakness, ... numbness, shortness of breath, headaches, dizziness and fatigue, mental impairments including anxiety, panic attacks, phobias and depression, and cardiac condition and chest pains.” Knox Br. 31-32 (citations omitted). If the medical evidence suggests a claimant “has an impairment which is reasonably expected to produce some pain, [the ALJ] must consider all of the evidence relevant to the individual’s allegations of pain, even if the alleged pain is more severe or persistent than would be expected.” Sykes v. Apfel, 228 F.3d 259, 266 n. 9 (3d Cir.2000) (citations omitted). The ALJ “must explicitly weigh the evidence and explain a rejection of the evidence.” Id. (citations omitted).
In this case, the ALJ explained in detail the reasons for partially discrediting Knox’s testimony regarding his claimed chest pain, diarrhea, weakness, fatigue, neck, low back and bilateral knee pain. See App. 18-19. Specifically, the ALJ found the scope of Knox’s claimed impairments to be inconsistent with his choice of pain medication, the lack of frequent inpatient admissions, emergency room visits, or protracted physical therapy, and the clinical findings regarding his claimed impairments. App. 18. The ALJ also explained the inconsistencies in Knox’s testimony regarding his claimed psychiatric conditions that led him to discount this testimony. See App. 19-20. We agree with the District Court that the ALJ’s evaluation of the medical evidence in arriving at the residual functional capacity assessment, including the evaluation of Knox’s subjective complaints, was supported by substantial evidence.
Knox further argues that the ALJ erred in improperly relying “on an unsupported opinion of a non examining doctor, Dr. Fechner, based on a misinterpretation of the record” to “supplant the medical opinion of a treating physician.” Knox Br. 56-57. Knox correctly points out that the reports of treating physicians are to be afforded “great weight,” id. 57 (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000)), but Knox mischaracterizes the ALJ’s assessment. The ALJ cited Dr. Fechner’s testimony that Knox could perform light work, see App. 20, but the residual functional capacity assessment did not ignore the other medical evidence cited in Knox’s brief. The ALJ discussed the re-
*368ports from each of Knox’s treating physicians, Dr. Mangia, Dr. Dungo, and Dr. Hriso, see App. 17, and discussed their opinions — along with the objective medical evidence — in detail. See App. 17-18. He concluded that Knox’s HIV infection has been largely asymptomatic, based on Dr. Mangia’s questionnaire. App. 17. He further noted that Knox’s CD-4 count has been high, his viral load relatively low, and that Knox has not exhibited secondary complications that often arise from more debilitating HIV infections. App. 18. The ALJ concluded that Knox’s pulmonary hypertension was not aggravated by any “significant secondary complications or target end-organ damage,” based on the numerous diagnostic imaging results in the record. App. 17-18. The ALJ found that Knox’s orthopedic impairments did not result in debilitating pain or limitation in function, based on several imaging studies. App. 18. The ALJ evaluated the evidence regarding Knox’s mental impairments and concluded that they would impose only limited restrictions on his possible working environments. App. 19. The ALJ discounted the “check-list” questionnaire prepared by Dr. Hriso, see Tr. 482-84, because these conclusions “are not supported by objective narrative mental status findings of any specificity.” App. 19; accord App. 20 (discounting this check-list form because Dr. Hriso “essentially checked off every non-exertional limitation on the form, even some that were not alleged”). The ALJ’s residual functional capacity assessment is explained in detail and supported by substantial evidence.
C.
Knox’s final argument is that the ALJ erred at step five by relying on a hypothetical posed to the vocational expert that failed to account for his “limitations as to the need to avoid wetness, fumes, gases, temperature extremes, heights, inability to push, pull, kneel, bend or stoop” based on Knox’s “pulmonary and bilateral knee impairments.” Knox Br. 59-60 (citing Tr. 489-96). However, an ALJ is not required “to submit to the vocational expert every impairment alleged by a claimaint.” Rutherford, 399 F.3d at 554 (emphasis in original). Rather, “the hypothetical posed must accurately portray the claimant’s impairments and ... the expert must be given an opportunity to evaluate those impairments as contained in the record.” Id. (quotation marks omitted). In other words, “the ALJ must accurately convey to the vocational expert all of a claimant’s credibly established limitations.” Id. (emphasis in original) (citation omitted). Here, the ALJ posed a hypothetical that mirrored Knox’s functional limitations that the ALJ determined had been established by the medical evidence. Compare Tr. 593-94 (hypothetical posed to vocational expert) with App. 19 (ALJ’s residual functional capacity assessment); accord App. 21 (explaining that Knox’s other proposed limitations “were totally lacking in credibility”). We agree with the District Court that the ALJ incorporated the credibly established limitations in the hypothetical, leading the ALJ to conclude that Knox could perform work existing in significant numbers in the national economy. The ALJ’s determination that Knox was not disabled for purposes of receiving Disability Insurance Benefits and Supplemental Security Income under the Social Security Act is supported by substantial evidence.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
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OPINION
PER CURIAM.
Enriqueta B. Agcaoili appeals pro se from the order of the District Court dismissing her claims against Richard Thayer for lack of subject matter jurisdiction and entering summary judgment in favor of William Stanley. For the following reasons, we will affirm.
I.
Agcaoili was injured in 1995, retained Stanley (a lawyer) to file an application for Social Security benefits on her behalf, and received a fully favorable decision from an Administrative Law Judge in 1997. In 2008, she filed the complaint at issue here against Stanley and Thayer, a District Manager of the Social Security Administration (“SSA”). Agcaoili’s complaint is difficult to follow, but she alleges that her Social Security benefits have been improperly calculated and that she never received certain payments that the SSA claims to have made to her. She also alleges that Stanley coerced her into signing a fee agreement in 1995 and that he conspired with the SSA to reduce payments to her in order to receive his fee. Agcaoili purport*374ed to bring suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the Social Security Act, 42 U.S.C. § 405(g), and the Privacy Act, 5 U.S.C. § 552a(g)(5). She described her “causes of action” as “Fraud; harassment; conspiracy; retaliation, manipulation and falsification of records; obstruction of justice; discrimination; intentional infliction of physical, mental/emotional distress.” (Compl. at 2.) The only relief she sought was the payment of proper Social Security benefits plus interest, as well as damages for pain and suffering.
Stanley filed a motion for summary judgment, and Thayer filed a motion to dismiss for lack of subject matter jurisdiction or in the alternative for summary judgment. Agcaoili then sought leave to amend her complaint, which the District Court denied. By order entered April 30, 2009, the District Court dismissed Agcaoi-li’s claims against Thayer and granted summary judgment in favor of Stanley. Agcaoili appeals.1
II.
We will affirm substantially for the reasons stated by the District Court. Regarding Thayer, the District Court properly explained that Agcaoili alleged no conduct by Thayer individually and construed
her claims as claims against him in his official capacity — i.e., as claims against the United States. Whether construed as claims against Thayer individually or against the United States, however, they are barred as a matter of law. As the District Court explained, Agcaoili’s exclusive means of challenging the calculation and payment of her Social Security benefits lies under 42 U.S.C. § 405(g). Judicial review under that statute, however, “is barred absent a ‘final decision’ by the Commissioner of Social Security.” Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir.1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). There is no such decision here. An Administrative Law Judge issued a decision fully favorable to Agcaoili in 1997, but she is not challenging that decision (and any such challenge would be untimely, see 42 U.S.C. § 405(g)). Instead, she challenges the subsequent calculation and payment of her Social Security benefits. As the District Court explained, Agcaoili must complete the administrative review process before seeking judicial review of those issues.2
As the District Court further explained, all other potential claims against Thayer are barred by 42 U.S.C. § 405(h). That statute provides that “[n]o action against
*375the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 133 or 1346 of Title 28 to recover on any claim arising under” Subchapter II of the Social Security Act, which provides for the payment of Social Security benefits. 42 U.S.C. § 405(h). See Weinberger v. Salfi, 422 U.S. 749, 760-61, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Fanning v. United States, 346 F.3d 386, 392-95 (3d Cir.2003). The Supreme Court has broadly construed this provision to bar claims, even if they might be said to arise under other laws as well, when the plaintiff seeks to recover Social Security benefits and the Social Security Act “provides both the standing and the substantive basis” for the claims. Weinberger, 422 U.S. at 760-61, 95 S.Ct. 2457. See also Schweiker v. Chilicky, 487 U.S. 412, 424, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (refusing to imply cause of action “for remedies in money damages against [Social Security] officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits”). In this case, because all of Agcaoili’s claims against Thayer “aris[e] under” the Social Security Act, the District Court lacked jurisdiction to consider them.3
With regard to Stanley, the District Court liberally construed Agcaoili’s allegations to state a number of claims under state and/or federal law. The District Court correctly concluded that New Jersey’s two-year limitations period for personal injury claims applies to Agcaoili’s claims for harassment, intentional infliction of emotional distress, discrimination, retaliation, conspiracy, and obstruction of justice. See N.J. Stat. 2A:14-2; Roa v. Roa, 402 N.J.Super. 529, 955 A.2d 930, 935 (N.J.Super.Ct.App.Div.2008) (applying the two-year personal injury limitations period to claims under New Jersey’s anti-discrimination law); see also Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989) (New Jersey’s two-year limitations period for personal injury actions applies to civil rights claims under 42 U.S.C. § 1983 and § 1985). Because each of these claims arose out of Stanley’s representation of Agcaoili from 1995 to 1997, we agree with the Court that these claims are time-barred.
The District Court also correctly concluded that Agcaoili’s claim for fraud is time-barred. See N.J. Stat. 2A:14-2 (six-year limitations period applies to common law fraud claims). Although Agcaoili appears to argue that her claim did not accrue until May 2006, when she allegedly first learned that Stanley had received a fee payment from the SSA, we agree with the Court that Agcaoili’s assertion is contradicted by the record. In this case, Agcaoili alleges that she signed a fee agreement with Stanley in 1995, apparently under duress, and that Stanley collected $2,792.50 toward the fee in 1997. She attached to her complaint what appears to be a 2006 print-out of her 1997 Form SSA-1090 Social Security Statement showing that the SSA notified her of its payment to Stanley in 1997. In addition, Stanley submitted two 1997 letters from the SSA notifying Agcaoili that it had withheld $2,792.50 to pay Stanley (Appellees’ Appx. at 132-40), two 1997 letters from Stanley himself to Agcaoili explaining his receipt of the fee (id. at 142-43, 148), and a 1997 letter from Agcaoili acknowledging receipt of one of those letters (id. at 145-46). *376Agcaoili does not dispute any of this evidence, and it clearly shows that she was aware of all material facts relevant to her fraud claim over ten years before filing her complaint.
We also agree that Agcaoili’s claim for “manipulation and falsification of records” is time-barred. Agcaoili appears to allege that the Fee Agreement was falsified because it bears the date of December 13, 1995 (the date on which it was executed), rather than the “accident date.” The District Court correctly noted that while forgery is a crime under New Jersey law, N.J. Stat. 2C:21-1, there is no express private right of action for forgery under New Jersey law. In any event, assuming arguendo that such a cause of action exists, Agcaoili’s claim is nonetheless time-barred, regardless whether the two-year or six-year limitations period applies.
Finally, the District Court did not abuse its discretion in denying Agcaoili leave to amend. Agcaoili’s proposed amended complaint included no new material allegations, and sought only to add as defendants various employees of the SSA, as well as Treasury Secretary Timothy Geith-ner. The proposed amended complaint does not state any cognizable claims against these individuals.
Accordingly, we will affirm the judgment of the District Court. Agcaoili’s motions to stay this appeal, “preclude” Stanley’s counsel, “separate appellees” and “amend to criminal actions” are denied.
. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s entry of summary judgment, see Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.2009), and dismissal for lack of subject matter jurisdiction, see USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 198-99 (3d Cir.2003). We review the denial of leave to amend a complaint for abuse of discretion. See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). We may affirm on any grounds supported by the record. See Torretti, 580 F.3d at 172.
. Agcaoili's complaint references what she calls "appeals” that she filed with the "Pay Center” in 1996, which she alleges have "stayed at the Pay Center, without any result.” (Compl. at 15.) The District Court thoroughly set forth the SSA's administrative exhaustion requirements, and submission of an "appeal” to a "Pay Center” does not satisfy them. See 20 C.F.R. §§ 404.902, 404.907, 404.967-68 & 404.981. Moreover, Agcaoili has not requested any injunctive or other relief in connection with these purported appeals. See Fitzgerald, 148 F.3d at 235. In addition, Thayer submitted an unrebutted declaration from an SSA Director stating that the SSA has no record of Agcaoili having filed an administrative claim regarding the allegations in her complaint. (Appellees' Appx. at 73-74.)
. The District Court did not specifically discuss Agcaoili’s claim under the Privacy Act, but she failed to state one. Agcaoili alleges that various unnamed individuals within the SSA impeded her efforts to investigate her claims, but she does not allege that they withheld any records from her. On the contrary, she alleges that she was able to review her file in 2006. (Compl. at 8.) She also requests no relief in that regard.
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OPINION
PER CURIAM.
Hubert Jackson, a Pennsylvania inmate, seeks a writ of mandamus directing the United States District Court for the Western District of Pennsylvania to “inquir[e] into the legality of the detention of petitioner on [the] basis that ground one of the ... habeas corpus petition [docketed at W.D. Pa. Civ. No. 09-cv-00088] raises a claim that the State Court judgment of sentence is Constitutionally infirm[J” Petition at 1. We will deny the mandamus petition.
In 1989, a jury in Allegheny County convicted Jackson of rape and unlawful restraint. (Case No. 1988-08196). The trial court imposed a sentence of 8 to 20 years in prison. In 2005, Jackson filed a habeas petition under 28 U.S.C. § 2254. The District Court denied the petition as time barred. (W.D. Pa. Civ. No. 05-cv-*37700334). This Court denied a certificate of appealability. (C.A. No. 05-2964.)
In 2009, Jackson filed another habeas petition. (W.D. Pa. Civ. No. 09-cv00088.) Like the habeas petition that he had filed in Civ. No. 09-CV-00087, “claim (1)” in the petition asserted “false imprisonment due to fraud by officers of the court rendering judgment of sentence in violation of due process void.” The District Court dismissed the petition as time barred. This Court denied a certificate of appealability, and denied Jackson’s petition for rehearing en banc. (C.A. No. 09-1909.) Jackson then filed this mandamus proceeding.
A writ of mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). “Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, — U.S.-, 130 S.Ct. 705, 710, — L.Ed.2d-(2010) (per curiam) (quotation marks and punctuation omitted).
Because the 2009 habeas petition has been dismissed, and that matter is closed, Jackson has no right to compel a ruling on the merits of the petition. The proper means for Jackson to challenge the constitutionality of his conviction and sentence in federal court is under 28 U.S.C. § 2254. Because Jackson has had a prior ruling on the merits of a § 2254 petition, he must obtain this Court’s permission to file a second or successive petition. See 28 U.S.C. § 2244. Mandamus, however, is not a means for evading compliance with the gatekeeping requirements that govern second or successive petitions. Cf. United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (prisoner may not use writ of coram nobis to evade gatekeep-ing requirements); Massey v. United States, 581 F.3d 172, 174 (3d Cir.2009) (prisoner cannot seek relief through writ of audita querela on the basis of an inability to satisfy the gatekeeping requirements).
For these reasons, we will deny the mandamus petition. Jackson’s motion to consolidate this proceeding with C.A. No. 09-4553 is denied.
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OPINION OF THE COURT
FISHER, Circuit Judge.
A jury convicted Alexander Sylvester of one count of possession of a prohibited object by a prison inmate in violation of 18 U.S.C. § 1791(a)(2). The District Court sentenced him to sixty months in prison. He appeals both his conviction and his sentence. We will affirm the former, vacate the latter, and remand to the District Court for resentencing.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Sylvester was charged in June 2008 with one count of possession of a prohibited object by a prison inmate in violation of 18 U.S.C. § 1791(a)(2). A two-day trial ensued. At trial, the government presented evidence that Sylvester, while serving a sentence in federal prison for unrelated charges, triggered a metal detector alarm at the entrance to the prison cafeteria. He refused to submit to a pat-down by prison officials and fled from the cafeteria to another area of the prison compound. While fleeing, Sylvester threw an object to the ground. Prison officials later identified that object as a homemade knife, or a “shank.” Sylvester did not testify at trial, but the defense called several witnesses. Among those witnesses were two of Sylvester’s co-inmates, one of whom testified that it was he, not Sylvester, who had thrown the object, and another of whom testified that the object Sylvester had thrown was a can of chewing tobacco. The jury returned a guilty verdict and the District Court thereafter sentenced Sylvester to sixty months in prison.
Sylvester has timely appealed his conviction and sentence.1
II.
Sylvester attacks his conviction on the grounds that the prosecutor’s statements during closing argument violated his Fifth Amendment right against self-incrimination and that the District Court erroneously refused to instruct the jury on his theory of the case. Sylvester also challenges his sentence on the ground that the District Court wrongly classified him as a career offender under the United States Sentencing Guidelines. We address each of these issues in turn.
A. Statements During Closing Argument
Sylvester argues that the District Court erred in denying his motion for a mistrial based on the prosecutor’s statements during closing argument. ‘We review a district court’s decision to deny a motion for mistrial predicated on the grounds that the prosecutor made improper remarks in a closing argument for abuse of discretion.” United States v. Wood, 486 F.3d 781, 786 (3d Cir.2007) (citation omitted).
In Griffin v. California, the Supreme Court held that the Fifth Amendment bars the prosecution from commenting, directly or indirectly, on a defendant’s silence. 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). “Otherwise, the defendant is penalized by the court for exercising his constitutional right not to incriminate himself.” United States v. Isaac, 134 F.3d 199, 206 (3d Cir.1998) (citing Griffin, 380 U.S. at 614, 85 S.Ct. 1229). A comment *381“is directed to a defendant’s silence when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Brennan, 326 F.3d 176, 187 (3d Cir.2003) (internal quotation marks and citation omitted). “Statements regarding the absence of facts in the record, however, need not be taken as comment on a defendant’s failure to testify.” Id. (internal quotation marks, alterations and citations omitted). Furthermore, “when the defendant uses his Griffin protection as a sword, rather than a shield, the prosecution may respond appropriately.” Isaac, 134 F.3d at 206 (citing United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988)). In determining whether a prosecutor has impermissibly commented on a defendant’s right against self-incrimination, “we must examine the challenged prosecutorial remark in its trial context.” Lesko v. Lehman, 925 F.2d 1527, 1544 (3d Cir.1991) (citations omitted).
During closing argument, the prosecutor stated in relevant part as follows:
So what [Sylvester] does, if his claim is being it is this, what he does, he runs. He is told to stop. Rules violation. He flees. Told to stop. Rules violation. He’s told to get on the ground. Told to stop. Rules violation. He breaks all of these rules for a can of chewing tobacco. Do you really think, using your common sense, that he goes through all that bother, all that trouble of fleeing those officers, of refusing to obey their commands because of a can of chewing tobacco, Copenhagen?
Or do you really think, using your common sense, he is fleeing because he knows this is a serious violation. He knows he is going to get jammed up if this is found on him. That is why he ran out and gave it a toss and off it went.
Judge Jones told you at the start of this trial that anything that I would say or defense says in the opening statement or closing arguments is not evidence. The only person that you’ve heard say that Mr. Sylvester panicked with the can of chewing tobacco was Mr. Becker [Sylvester’s counsel]. That was Mr. Becker’s theory. No witness took the stand and said he panicked.
It’s a credibility issue. Five prison guards, they all testified consistent. We have inmates who go out there as far as 2045, 2050, and their stories are just entirely inconsistent with each other as far as where the object was thrown and where it was dropped.
(App. 263 (emphasis added).)
After the prosecution finished its closing argument, Sylvester’s counsel moved the District Court at sidebar for a mistrial, arguing that the prosecutor had implicitly, and impermissibly, commented on Sylvester’s election not to testify because, in his view, no one but Sylvester could have testified about whether Sylvester had in fact panicked. The District Court denied the motion, concluding that the prosecutor’s statement, taken in context, plainly referred only to the witnesses who had actually testified at trial and could not be interpreted as an allusion to Sylvester’s silence.
Sylvester paints only the italicized portion of the above excerpt of the prosecutor’s closing argument as an infringement of his Fifth Amendment right against self-incrimination. Taking that remark in context, however, we are far from persuaded that it could be reasonably construed as a reference to Sylvester’s silence at trial. Cf. United States v. Price, 13 F.3d 711, 721 (3d Cir.1994). Rather, we agree with the District Court that the remark was most reasonably understood as a reference to the absence of testimony that Sylvester *382panicked by those witnesses who actually took the stand.
Even assuming that Sylvester’s characterization of the prosecutor’s statement is correct, we still see no evidence of misconduct. Sylvester’s counsel told the jury during his opening statement that when prison officials ordered Sylvester “to go through [the metal detector] again[,] ... it went off again and he panicked.” (App.79.) Importantly, that statement invited the prosecutor’s statement about the lack of testimony regarding Sylvester’s purportedly panicked state, as there was no testimony presented by either side suggesting that Sylvester had panicked when ordered to submit to a pat-down. In other words, the context of the remark shows that it was directed toward rebutting Sylvester’s theory of the case. Under these circumstances, the prosecutor’s statement did not constitute misconduct. Cf. Brennan, 326 F.3d at 188 (prosecutor’s statement “was permissible argument regarding what evidence was, and was not, in the record”); Isaac, 134 F.3d at 206-07 (no Fifth Amendment violation where the prosecutor stated in closing argument that “[the defendant] captained that boat from Jamaica, and the only people who would know that [the defendant] captained that boat from Jamaica are [the defendant], Conrad Brown, Irvin Reid, and that fourth individual in Jamaica. Those are the only people”); United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996) (prosecutor’s statement exposing weaknesses in the defense’s theory was not impermissible).
Because the prosecutor committed no misconduct, we perceive no abuse of discretion in the District Court’s denial of Sylvester’s motion for a mistrial. See Wood, 486 F.3d at 786 (“To find that the court abused its discretion in failing to order a mistrial for prosecutorial misconduct, we must first be convinced that the prosecution did in fact misconduct itself.” (quotation omitted)).
B. Jury Instructions
Sylvester argues that he is entitled to a new trial because of the District Court’s refusal to read his proposed jury instruction.
“We review a district court’s decisions regarding jury instructions for abuse of discretion.” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir.2008) (citation omitted). “We reverse £a district court’s denial to charge a specific jury instruction only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.’ ” United States v. Leahy, 445 F.3d 634, 651 (3d Cir.2006) (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir.1992)). In determining whether reversal is warranted, we read the jury instructions as a whole, United States v. Flores, 454 F.3d 149, 157 (3d Cir.2006), bearing in mind that “the trial judge retains discretion to determine the language of the jury charge.... So long as the court conveys the required meaning, the particular words used are irrelevant.” Id. at 161 (citation omitted). Moreover, while “a defendant is entitled to a jury instruction on a theory of defense whenever some evidence supports that theory, ... [t]he district court is not obligated to use the language the defendant proffers.” United States v. Kapp, 781 F.2d 1008, 1013 (3d Cir.1986) (citation omitted).
Here, Sylvester asked the District Court to read a proposed jury instruction stating his theory of the case. According to that theory, the object that triggered the metal detector alarm was a can of chewing tobacco rather than a knife, and the knife that prison officials found on the *383ground had in fact been discarded by another inmate. Specifically, Sylvester wanted the Court to tell the jury that “because the prosecutor chose not to charge the defendant with possession of a prohibited object, tobacco, you will not have the option of convicting Alexander Sylvester of that crime.” (App.309-10.) The District Court agreed that Sylvester could argue his theory of the case to the jury but declined to read his proposed instruction. The Court reasoned that its other instructions made sufficiently clear that Sylvester’s guilt vel non hinged on the jury’s finding beyond a reasonable doubt that Sylvester possessed a weapon, not some other object. We agree with the District Court’s conclusion.
The District Court told the jurors that they could find Sylvester guilty only if they found that he had possessed a weapon, and provided a definition of “weapon.” The negative inference clearly flowing from that instruction was that the jury could not convict Sylvester if it determined that the object Sylvester possessed was a can of chewing tobacco, as he argued, or any other object that did not come within the definition of a weapon as read by the District Court. By finding Sylvester guilty of violating § 1791(a)(2), the jurors necessarily found beyond a reasonable doubt that Sylvester possessed a weapon,
and that was all they needed to do under the circumstances. Put another way, even assuming that Sylvester’s proposed instruction was correct, it was substantially covered by the District Court’s other instructions. Cf. Hoffecker, 530 F.3d at 167; United States v. Weatherly, 525 F.3d 265, 270 (3d Cir.2008); United States v. Leahy, 445 F.3d 634, 651-52 (3d Cir.2006). Accordingly, viewing the jury instructions in their entirety and in context, we conclude that the District Court did not abuse its discretion in rejecting Sylvester’s proposed jury instruction.
C. Career Offender Classification at Sentencing
Sylvester claims that the District Court erred in classifying him as a career offender under § 4B1.1 of the United States Sentencing Guidelines. We exercise plenary review over a district court’s determination that an offense constitutes a crime of violence for purposes of determining career offender status under U.S.S.G. § 4B1.1. See United States v. Shabazz, 233 F.3d 730, 731 (3d Cir.2000); United States v. Williams, 176 F.3d 714, 715 (3d Cir. 1999).
Before sentencing, the United States Probation Office prepared a Presentence Investigation Report, which assigned Sylvester a base offense level of 13 and classified him as a career offender under U.S.S.G. § 4B1.1 based on both the conclusion that Sylvester’s § 1791(a)(2) conviction was a crime of violence and his two prior felony convictions for crimes of violence, thus resulting in a total offense level of 17 and a criminal history category of VI.2 Based on these calculations, Sylvester’s advisory Guidelines range was fifty-one to sixty months in prison.3 Sylvester objected to his classification as a career offender on the ground that his conviction for possession of a prohibited object did not qualify as a crime of violence. The District Court overruled that objection and concluded that a § 1791(a)(2) conviction is *384a crime of violence. The Court sentenced Sylvester to sixty months in prison.
On appeal, Sylvester renews his argument that a § 1791(a)(2) conviction does not qualify as a crime of violence. As both parties recognize, in United States v. Polk, 577 F.3d 515 (3d Cir.2009) — issued less than two months after the District Court sentenced Sylvester — we held that “a § 1791(a)(2) conviction for possession of a prohibited object designed to be used as a weapon in prison is not a ‘crime of violence’ for purposes of the [cjareer [offender Guidelines.” Id. at 520. In light of Polk, the government “concedes this issue” arid asks us to remand for resentencing. (Appellee’s Br. 26.)
Sylvester also argues that he cannot be classified as a career offender based on his two prior felony convictions because those convictions, he asserts, occurred more than fifteen years before his § 1791(a)(2) conviction. He acknowledges, however, that he did not raise this issue before the District Court. Ordinarily, that omission would limit our review to the plain error standard. See Polk, 577 F.3d at 517 (“Because Polk did not object to his designation as a career offender for sentencing purposes in the District Court, we review for plain error.” (citing Fed.R.Crim.P. 52(b))). “To grant the relief requested under this standard, we would need to conclude not only that the District Court erred in classifying [Sylvester] as a career offender, but that the error was plain, and it affected adversely ‘substantial rights’ of [Sylvester] as well as the ‘fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quotation omitted). Because we will remand to the District Court for resentencing in light of Polk, we need not address Sylvester’s other challenge to his career offender status, as he will be able to raise it in the District Court on remand.
III.
For the foregoing reasons, we will affirm Sylvester’s conviction but vacate his sentence and remand to the District Court for resentencing.
. 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.
. The two prior felony convictions were, respectively, for first-degree robbery and manslaughter.
. Sylvester’s Guidelines range was initially fifty-one to sixty-three months in prison, but because a § 1791(a)(2) conviction imposes a five-year maximum prison sentence, the upper end of his Guidelines range was reduced to sixty months pursuant to U.S.S.G. § 5Gl.l(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/8477515/
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Steven Usuama Rose appeals the judgment of the United States District Court for the Eastern District of Pennsylvania imposing a sentence of 120 months imprisonment following his convictions for distribution of cocaine and possession of a firearm by a convicted felon. Rose had been indicted by state authorities who later dismissed the state charges against him in favor of federal prosecution. Rose contends that the delay between his state proceedings and his federal conviction violated his Sixth Amendment right to a speedy trial. He also attacks the procedural reasonableness of his sentence. For the reasons that follow, we will affirm Rose’s conviction and vacate and remand for resentencing.
I. Background
On August 9, 2005, Rose attempted to sell 0.3 grams of cocaine to an undercover police officer in Lancaster, Pennsylvania. Officers arrested him after a brief foot chase, during which Rose discarded a nine-millimeter firearm. Upon the arrest, police searched Rose and discovered an additional 0.6 grams of cocaine, for a total of 0.9 grams involved in the offense. Rose was remanded for pretrial detention fol*386lowing a preliminary hearing on September 27, 2005.
A. The Information and Prosecution
On October 24, 2005, the Lancaster County District Attorney filed an information charging Rose with drug-possession and firearms offenses. Pursuant to protocol within the District Attorney’s office, state prosecutors referred Rose’s case to the United States Attorney’s Office to be considered for federal prosecution. On January 19, 2006, the U.S. Attorney’s Office preliminarily approved the case for federal prosecution but continued to review the matter during the following two months to determine whether Rose’s case should be coordinated with another federal investigation into criminal activity by one of Rose’s relatives. Ultimately, the federal prosecutors deemed coordination unnecessary, and, on March 13, 2006, the U.S. Attorney sent a letter to Rose’s counsel (“the March 13 letter”) stating that Rose would not be prosecuted federally if he pled guilty to drug and weapons charges in state court and agreed to a negotiated sentence of between 6J/¿ and fifteen years.1 The letter also stated that “the charges [would] be adopted for federal prosecution” if Rose failed to plead guilty in state court. Throughout much of 2006, Rose’s state proceedings continued without federal involvement.
Rose ultimately refused to enter a plea agreement that satisfied the conditions set out in the March 13 letter, and he pled not guilty to the state charges on September 18, 2006. Nevertheless, Rose’s attorney and the state prosecutor, who had been cross-designated as a special assistant U.S. Attorney to handle any federal prosecution that resulted from the case, continued to negotiate in hopes of reaching a deal that would prompt Rose to accept a state plea and forestall the possible initiation of federal charges. By late November or early December, however, it was clear to the prosecutor that further negotiations would be unproductive.
In late May or early June of 2007, officials in the District Attorney’s office sent Rose’s file to federal prosecutors for the purpose of preparing a federal case against Rose. On June 28, 2007, Rose moved to dismiss the state charges against him under Rule 600 of the Pennsylvania Rules of Criminal Procedure, which requires that criminal trials commence within 180 days after a written complaint is filed. See Pa. R.Crim. P. 600(A)(2) (“Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed.”). The U.S. Attorney’s Office obtained a federal indictment against Rose on July 10, 2007, after which the Court of Common Pleas dismissed the state charges against Rose, rendering his Rule 600 motion moot.
On September 11, 2007, Rose moved to dismiss the federal indictment on Sixth Amendment speedy trial grounds, arguing that the federal government was “entirely at fault and had no reasonable basis” for allowing the two-year lapse of time after his arrest on state charges. (App. at 38.) - He further argued that dismissal was warranted because he had been held in pretrial detention since his preliminary hearing in September 2005 and that he had suffered prejudice because the delay had impaired his ability to locate witnesses and conduct a physical investigation of the alleged crime.
*387On March 7, 2008, the District Court denied Rose’s motion to dismiss. The Court concluded that Rose’s federal speedy trial rights attached on the date of the federal indictment and that the pen-dency of his state proceedings had no bearing on those rights. While the Court expressed concern regarding the length of Rose’s state custody, it held that the federal government, as a sovereign distinct from the states, “is not bound by the action of state authorities and that successive state and federal prosecutions are constitutionally permissible.” United States v. Rose, No. 07-CR-883, 2008 WL 650034, at *2 & n. 2 (E.D.Pa. Mar.7, 2008) (quoting United States v. Marler, 756 F.2d 206, 211 (1st Cir.1985)). The Court further observed that only eight months had passed between the return of the federal indictment and the Court’s ruling on the motion to dismiss, that much of that time had been taken up by proceedings associated with motions in limine filed by Rose, and that Rose had identified no witnesses or physical evidence that had become unavailable to him as a result of the alleged delay. Trial commenced on August 19, 2008, and Rose was found guilty of distribution of cocaine and of possession of a firearm by a convicted felon.
B. Sentencing
A presentence report (“PSR”) was prepared, which included the observation that, based on Rose’s offense conduct, his offense level would typically be 28, his criminal history category would be V, and his Sentencing Guidelines range would be 130 to 162 months.2 However, the PSR further noted that Rose qualified as a career offender, which increased his offense level to 34, his criminal history category to VI, and his Sentencing Guidelines range to 262 to 327 months.
The Court held a sentencing hearing on December 22, 2008. Defense counsel urged the Court to vary below the career offender Guidelines range in light of the disparity between the ordinary offense conduct range and the career offender range. Counsel argued that career offender sentences should be reserved for cases in which the defendant deals in large quantities of drugs, and should not be imposed in cases such as Rose’s, which involved less than one gram of cocaine. The Court, in considering that argument, mistakenly suggested that Rose’s offense conduct range was 140 to 175 months and asked defense counsel to verify that calculation. Defense counsel then contributed to the confusion by incorrectly agreeing that the Court had accurately stated Rose’s offense conduct range. The Court allowed the prosecutor, who did not notice the error, to respond to defense counsel’s argument, after which the Court spoke directly with Rose regarding Rose’s criminal history and prospects for rehabilitation.
The Court adopted the PSR and used Rose’s career offender Guidelines range at the first step of its analysis under United States v. Gunter, 462 F.3d 237 (3d Cir. 2006).3 At the third Gunter step, however, *388upon reviewing the sentencing factors enumerated in 18 U.S.C. § 3553(a), the Court granted Rose a significant downward variance from his career offender range and imposed a sentence of 120 months. The Court observed that, “had it not been for the career offender provision, ... the sentence in this case would be significantly lower in terms of the advisory Sentencing Guidelines range.” (App. at 334.) The Court noted that Rose qualified as a career offender because he had multiple pri- or convictions for possession of relatively small amounts of drugs but that those convictions placed him in a sentencing range similar to that frequently seen in large-scale drug-trafficking cases. The Court concluded that a significant downward variance was necessary to prevent an unwarranted sentencing disparity between Rose, who had a history of street-level dealing, and other small-time dealers. The Court never referred to its mistaken statement regarding Rose’s offense conduct Guidelines range. This timely appeal followed.
II. Discussion4
Rose advances two grounds for relief on appeal. First, he argues that the District Court erred in denying his motion to dismiss on speedy trial grounds. Second, he argues that the District Court’s misstatement of his offense conduct range under the Guidelines constitutes an erroneous Guidelines calculation that renders his sentence procedurally unreasonable. We address each of those arguments in turn.
A. Speedy Trial
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const, amend. VI. When a defendant contends that the government has violated his speedy trial rights, the court must employ the four-part balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to assess the merits of the defendant’s claim. United States v. Dent, 149 F.3d 180, 184 (3d Cir.1998). The Barker test requires the court to evaluate the defendant’s claim in light of “(1) the length of the delay [pending trial], (2) the reasons for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial[,] and (4) the actual prejudice the defendant suffered as a result.” Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). If the length of the delay is brief, speedy trial rights are not implicated, and the court need not consider the final three Barker factors. Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir.1993). However, if the delay is lengthy, the court must inquire into all four Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. If the Barker calculus leads the court to conclude that the government has violated a defendant’s rights, the court must dismiss the indictment. Id. at 522, 92 S.Ct. 2182. We conduct a de novo review of a district court’s speedy trial analysis. Hakeem, 990 F.2d at 758.
We begin by evaluating the length of the delay pending trial, which requires us to identify the point at which the right to a speedy trial arises. Speedy trial rights apply only after the defendant has been “indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Rose was indicted by a federal grand jury on July 10, 2007. He does not predicate his Sixth Amendment claim upon delay in his federal proceedings, nor does he argue that the pace at which the District Court administered his *389federal criminal case could support a speedy trial claim. Instead, he argues that his federal speedy trial rights attached not with the return of the federal indictment but on March 13, 2006, when the U.S. Attorney issued the letter stating that he would be prosecuted if he failed to reach a plea deal with state prosecutors. According to Rose, the March 13 letter constituted an official accusation sufficient to trigger federal speedy trial rights because the letter stated that his case would be “adopted for federal prosecution” unless he pled guilty in state court. (Supp. App. at 2.) ■
Rose’s argument is unavailing because federal speedy trial rights attach only at the time of a federal arrest or the institution of “a formal [federal] criminal charge.” MacDonald, 456 U.S. at 6, 102 S.Ct. 1497. We have recently said in a case like this that, “[w]hen an arrest on state charges is followed by a federal indictment, the right to a speedy trial in the federal case is triggered by the federal indictment, and the time period under consideration commences on that date.” United States v. Battis, 589 F.3d 673, 679 (3d Cir.2009).5 The state arrest and state prosecution do not control the speedy trial analysis because the state and federal governments are separate sovereign entities, and the actions of one cannot typically bind the other. See MacDonald, 456 U.S. at 10 n. 11, 102 S.Ct. 1497 (observing in dicta that “an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign”).
The March 13 letter is obviously not an indictment and does not otherwise qualify as a formal charge. It neither resulted in Rose’s incarceration under federal authority nor initiated federal criminal proceedings against him. See Hakeem, 990 F.2d at 760 (holding that speedy trial rights are “measured from the date of formal accusation, i.e., from the earliest date of arrest or indictment”). The letter is simply a representation that the federal government would forbear pursuing charges against Rose, provided that he satisfactorily resolved his criminal liability in state court. It did not obligate the federal government to prosecute Rose if he failed to reach a state plea deal, and the U.S. Attorney’s Office could have chosen to take no prose-cutorial action after state plea negotiations turned sour. Moreover, while the odds of indictment were surely high, the government had no guarantee that federal prosecutors would successfully persuade a grand jury to indict Rose. Hence, at the time the letter was prepared, there remained a possibility that the U.S. Attorney’s Office would be unwilling or unable to pursue the case to indictment. Because the letter neither charged Rose nor caused him to be placed in federal custody, it is properly viewed as nothing more than a representation that federal authorities would refrain from attempting to prosecute him if he pled guilty in state court, not as a formal accusation. Accordingly, we conclude that the federal indictment against Rose provides the appropriate point of reference for measuring his federal speedy trial rights. The District Court therefore did not err in refusing to include Rose’s state proceedings when evaluating those rights, and we will affirm the Court’s denial of Rose’s motion to dismiss.
*390B. Sentencing
Rose appeals his sentence on the ground that the District Court abused its discretion when it erroneously identified the sentencing range that would have applied to him had he not qualified as a career offender. In raising this challenge, Rose does not dispute that the Court correctly calculated his career offender Guidelines range, that the Court relied upon that range at the first step of its analysis under Gunter, or that the Court arrived at the 120-month sentence by varying downward from his career offender range. The only challenge on appeal is that the Court’s erroneous identification of Rose’s offense conduct Guidelines range impairs the validity of his sentence because it infected the analysis at the final Gunter step, the sentencing decision under 18 U.S.C. § 3558(a).
Where, as here, the defendant failed to call an erroneous Guidelines calculation to the Court’s attention, we review for plain error. United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir.1994) (reviewing unpre-served challenge to Guidelines calculation for plain error). “Plain error requires the defendant to demonstrate that the district court committed an error that is plain and that affect[s] substantial rights.” United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir.2009) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted)). An error affects substantial rights if it altered the outcome of the proceedings before the district court. Id. We will affirm a sentence despite an incorrect Guidelines calculation if we “conclude on the record as a whole ... that the error did not affect the district court’s selection of the sentence imposed.” United States v. Langford, 516 F.3d 205, 215 (3d Cir.2008). Thus, plain error analysis consists of three components: (1) the presence of a legal error, (2) that is obvious from the face of the proceedings, and (3) that has an effect on the outcome of the proceedings.
Here, the District Court’s mistaken conclusion as to Rose’s offense conduct Guidelines range does constitute plain error because we are unable to say that the mistake had no effect on the District Court’s ultimate decision on sentencing. We recognize that the Court calculated and applied the correct career offender range at the first step of the Gunter analysis. Thus, there was no error with regard to the legally applicable Guidelines range, as Gunter focuses upon calculation of the range that actually applies to the defendant. We note that, in so holding, we are liberally interpreting the District Court’s obligations to calculate the applicable Guidelines range under Gunter, as the District Court unquestionably erred in identifying the Guidelines range that would have applied had Rose not qualified as a career offender. The Court was then drawn into a discussion of the offense conduct range as an alternative basis for considering how to properly sentence Rose. Indeed, there is some irony here because it is only the District Court’s solicitude for Rose’s interests that has given him any basis to argue procedural error. Had the District Court omitted any mention of the offense conduct range, Rose’s sentence would undisputedly be procedurally sound.6
*391But the Court did mention the offense conduct range and it did so specifically in the context of a discussion about alternative bases for coming to a just sentence. Looking then at the test for plain error that we must apply, the first two steps are essentially uncontested. The District Court erred in its assessment of the offense conduct range, and that error is obvious, in the sense that the true offense conduct range is clearly lower than that cited by the Court.7 The real dispute is over the third and final step, i.e., whether the error had an effect on the outcome of the proceedings.
While the government argues that the Court’s error was “an immaterial slip of the eye on the sentencing table that could not have affected the sentence imposed,” (Answering Br. at 41), we cannot be so sure. Again, our precedent tells us that, for an “error to be harmless, it must be clear that the error did not affect the district court’s selection of the sentence imposed.” Langford, 516 F.3d at 215. We must “possess a sure conviction that the error did not prejudice the defendant.” United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.1995) (internal quotation marks and citation omitted). Rather than having that level of confidence in this case, we have instead a concern that the District Court may have been using the erroneous offense conduct range as a referent in its sentencing analysis. That concern is furthered by the Court’s comment, while imposing sentence, that “had it not been for the career offender provision, ... the sentence in this case would be significantly lower in terms of the advisory sentencing guideline range.” (App. at 334.) Under these circumstances, we would be hard-pressed to say that it is clear the Court’s mistake had no effect on the sentence it gave to Rose.
It is by no means certain that the District Court would have imposed a different length of imprisonment had it considered the correct offense conduct range during sentencing, but it may have. We are thus bound to conclude that the procedural error identified by Rose rises to the level of plain error. We express no view on whether the same sentence will be warranted upon resentencing.
III. Conclusion
Because Rose has failed to establish that the government infringed upon his federal speedy trial guarantees, the judgment of conviction will be affirmed. However, because the Court committed a plain error at sentencing affecting Rose’s substantial rights, we will vacate the sentence and remand for further proceedings consistent with this opinion.
. According to the letter, Rose's federal Sentencing Guidelines range would have been 111-123 months, were he convicted in federal court. His range under the Pennsylvania Sentencing Guidelines on comparable charges would have been 36-48 months.
. The 2008 edition of the United States Sentencing Guidelines Manual was used to prepare Rose's PSR.
. Gunter requires district courts to follow a three-step procedure when imposing a sentence. First, the district court must calculate the defendant’s Sentencing Guidelines range without regard to departure motions. Gunter, 462 F.3d at 247. Second, the court must rule on the parties’ motions for upward or downward departures. Id. At the conclusion of the second step, the district court must recalculate the defendant’s Sentencing Guidelines range to reflect its ruling on the departure motions. Id. Third, the district court must consider the factors enumerated in § 3553(a) and exercise its discretion to craft a sentence that is appropriate under the circumstances of each particular case. Id.
. The District Court possessed jurisdiction over Rose’s criminal case pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
. As in Battis, Rose was initially indicted for state offenses and subsequently charged with federal crimes arising from the same underlying conduct. As in Battis, Rose argued that his federal speedy trial rights attached while his state proceedings were pending. The only significant distinction between Battis and the present case is that the defendant in Battis did not receive an offer of prosecutorial forbearance from the U.S. Attorney.
. Judge Rendell would hold that, since the District Court calculated the applicable Guideline range correctly, there was no procedural error caused by the incorrect reference to the offense conduct range, and the sentence was “procedurally sound.” However, she does not disagree with remanding to permit the Court to re-sentence Rose if the mistake as to the offense conduct range influenced the sentence the Court imposed.
. Of course, in another important sense, it was not obvious at all, as the silence of government's counsel and the misguided affirmation of defense counsel help demonstrate. Criminal sentencing can be complex and is nearly always a time when a multitude of important considerations are actively being addressed by the court and counsel. In those circumstances, a flaw which is obvious in hindsight may pass unnoticed. It nevertheless remains an obvious flaw on the face of the record.
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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/8477517/
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OPINION
PER CURIAM.
Mei Bin Chen petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on August 25, 2008. For the reasons that follow, we will dismiss in part and deny in part the petition for review.
I. Background
Because we write solely for the benefit of the parties, we will set forth only those facts necessary for analysis. Chen is a native and citizen of China. She entered the United States illegally on June 13, 2006, and was served with a notice to appear two days later. Chen conceded re-movability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming that she suffered past persecution and fears future persecution and torture in China because she is Catholic. Specifically, Chen claimed that she joined an unregistered Catholic church after her mother died in 2000. In May 2006, when re*393turning from a trip to purchase Bibles for her church, Chinese authorities arrested her. Chen claimed she was detained for three days, during which time the authorities cut her hand with a razor, pulled her hair, and denied her water. She fled China shortly thereafter.
After a hearing on June 11, 2007, the Immigration Judge (“IJ”) concluded that Chen was not a credible witness. The IJ also held that, even if Chen had been credible, she failed to meet her burden of proof. The IJ denied relief and ordered Chen’s removal.
Chen appealed to the BIA, arguing that the IJ abused her discretion in reaching the adverse credibility determination. See A.R. 6 (“The only issue presented in this appeal is whether Hon. Immigration Judge Reichenberg seriously abused her discretion in finding the respondent not credible despite the substantial and overwhelming evidence that dictates otherwise.”). On August 25, 2008, the BIA rendered a short opinion dismissing Chen’s appeal. The BIA concluded that Chen failed to show that the factual findings underlying the IJ’s adverse credibility determination were clearly erroneous. Accepting the IJ’s findings of fact, the BIA adopted and affirmed the IJ’s decision “to the extent it [was] challenged on appeal.”
This timely counseled petition for review followed.
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, where the BIA adopts the IJ’s reasoning and discusses some of the bases of the IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Chen to succeed on her petition for review, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
We review adverse credibility determinations for substantial evidence. Chen, 376 F.3d at 221-22. We will affirm if the determination is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Chen’s credibility must be so strong “that in a civil trial [s]he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We have closely reviewed the adverse credibility determination made by the IJ and affirmed by the BIA and conclude that it rests upon substantial evidence. The IJ specifically noted a number of serious inconsistencies and implausibilities, including, inter alia:
(1) Chen testified several times that she joined the unregistered Catholic church after her mother died. See, e.g., A.R. 153. Initially, she provided a statement in support of her application stating that her mother died on July 16, 2000. A.R. 413. This matched a statement from her priest showing that Chen joined her church on July 16, 2000. A.R. 366. However, before her hearing, Chen made a handwritten correction to her statement to change the date of *394her mother’s death to September 2000. A.R. 413 Id.; see also 111. This matched a death certificate showing that Chen’s mother died on September 7, 2000. A.R. 344; A.R. 175 (“Yes, my mother passed away September 7th.”). The IJ observed that, with the change, the chronology was no longer consistent; if Chen joined the church in July 2000, then, contrary to her testimony, she joined several months before her mother died. See A.R. 172 (“Q. When did you begin attending his services? A. When? I think July 16th. Q. Of what year? A. 2000. Q. That would be before your mother died then, right, ma’am? A. After her passed away.”).
(2)Chen testified that she fled China on May 20, 2006, five days after her release from prison. A.R. 167. However, she did not adequately explain how she was able to raise the money for her trip, arrange a smuggler, obtain a passport, and make other necessary arrangements in such a short period of time. In addition, Chen’s testimony was not consistent with her prior statement made during her airport interview, in which she stated that she left China on June 5, 2006.1 A.R. 252.
(3) Chen’s asylum application did not include her claim that she was cut with a razor while detained by Chinese police, even though that was the most serious act of mistreatment she claimed to have suffered while in detention. See A.R. 413.
(4) Chen testified that her brother had mailed her copies of two summonses issued by the Chinese police for her arrest. Although they had been mailed separately, she claimed both had been lost. See A.R. 164, 398. However, many other documents mailed by her brother and her other relatives arrived successfully.
Chen contends these are “minor [in]consistencies” that cannot support the IJ’s findings. We disagree. These are specific and cogent reasons for concluding that Chen lacked credibility, and many go to the “heart” of her claims.2 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Accordingly, we will deny the petition for review to the extent it challenges the adverse credibility determination.
*395B.
Moreover, even without regard to the adverse credibility determination, there is no basis to grant Chen’s petition for review. Chen failed to appeal the IJ’s alternative grounds for denying relief: that Chen failed to meet her burden of proof.3 This unchallenged aspect of the IJ’s decision is fatal to Chen’s claim.
In her brief to the BIA, Chen expressly limited her challenge only to the IJ’s adverse credibility finding. A.R. 6 (“The only issue presented in this appeal is whether Hon. Immigration Judge Reichen-berg seriously abused her discretion in finding the respondent not credible despite the substantial and overwhelming evidence that dictates otherwise.”). To the extent Chen attempts to claim in her petition for review that she satisfied her burden of proof, we will dismiss this unexhausted claim for lack of jurisdiction. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1) ]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
Chen attempts to excuse her failure to exhaust administrative remedies by proposing that she was not required to raise every claim in her appeal to the BIA. “Issue exhaustion,” she contends, is not a jurisdictional prerequisite.4 However, we have expressly held that “an alien is required to raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (emphasis added). Chen failed to exhaust her administrative remedies as to the claim that she satisfied her burden of proof to qualify for relief. Accordingly, the issue is not properly before us and we will dismiss it for lack of jurisdiction.
III. Conclusion
For the foregoing reasons, we will dismiss the petition for review to the extent we lack jurisdiction over Chen’s claims. We will deny the petition for review in all other respects.
. Chen argues that the IJ gave undue weight to Chen's airport statement. However, the inconsistencies between Chen's airport statement and testimony did not provide the sole basis for the adverse credibility determination. Cf., Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998) (holding that inconsistencies between hearing testimony and an airport statement are not sufficient, standing alone, to support an adverse credibility determination). Chen also argues that the IJ failed to establish that the statement was reliable because "the IJ failed to ascertain whether the petitioner adequately understood the questions put to [h]er at the border.” Petitioner’s Brief at 11. As a factual matter, this lacks merit. The record reflects that Chen was provided a telephone interpreter during the airport interview. A.R. 140.
. Prior to May 2005, an adverse credibility determination could only be based upon inconsistencies that went to the “heart” of the individual’s claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). The REAL ID Act, which applies to Chen, modifies that standard by providing that "credibility determinations may be made 'without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.’ ” INA § 208(b)(1)(B)(iii) [8 U.S.C. § 1158(b)(1)(B)(iii) ]. This Court has not yet addressed the new provision. However, the change is irrelevant here because the credibility problems are sufficiently consequential to meet the pre-REAL ID Act standard.
. To be granted asylum, Chen was required to show that she is "unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]; INA § 208 [8 U.S.C. § 1158], For withholding of removal, Chen had to demonstrate that her life would more likely than not be threatened in China based on one of these protected grounds. INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)], Finally, for relief under the CAT, Chen had to show that she would more likely than not be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
. In support, Chen relies upon Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), a Supreme Court decision concerning administrative exhaustion requirements in Social Security proceedings. The Sims court recognized that, where issue exhaustion is not statutorily required, such a requirement may be judicially imposed if the administrative proceedings in question are analogous to traditional adversarial litigation. Id. at 2084. Contrary to Chen’s argument, immigration proceedings are analogous to adversarial litigation and, accordingly, issue exhaustion is appropriate under Sims. Chen also cites a decision by the Court of Appeals for the Fifth Circuit, Haitian Refugee Center v. Smith, 676 F.2d 1023, 1034 (5th Cir. 1982), to argue that issue exhaustion is a matter of discretion and may be waived. However, Chen provides nothing to support her request for the exercise of such discretion.
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OPINION
BARRY, Circuit Judge.
This securities case, in which the shareholders of a family business find themselves in a bitter dispute about money and power, revolves around the interpretation of a provision of the New Jersey Business Corporation Act, N.J.S.A. 14A:1-1 to 17-18 (the “Act”). The minority shareholder protection provision of the Act, found at N.J.S.A. 14A:12-7(l)(c) (the “Provision”), protects minority shareholders from mismanagement, fraud, illegal conduct and abuse of authority of managers and directors of a corporation, but the Provision only applies to corporations “having 25 or less shareholders.” The family business in this case has either 34 or 19 shareholders, depending upon the interpretation of the Provision.
Michael Sery and his brothers (together, the “Serys”) sued Federal Business Centers, Inc. and others (together, “FBC”), seeking the Provision’s minority shareholder protection. The District Court dismissed the case, holding that the Provision does not apply to FBC because it has more than 25 shareholders. The issue is whether 15 trusts, which each hold shares of FBC for the benefit of certain family members, who are also shareholders in their own right, count as “shareholders” for purposes of the Provision. The Court held that the plain meaning of the Act requires counting the trusts as shareholders. The Court’s statutory interpretation and grant of summary judgment are subject to plenary review. E.I. DuPont de Nemours and Co. v. United States, 508 F.3d 126, 131-32 (3d Cir.2007). We will affirm.
*397The District Court’s well-reasoned opinion relies primarily on the principle of statutory construction which holds that, when the statutory language is clear and unambiguous, the legislature’s intent is best divined by reference to the plain meaning of a statute. Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 67 (3d Cir.2007). The language of the Provision is clear and unambiguous, authorizing a cause of action on proof that,
[i]n the case of a corporation having 25 or less shareholders, the directors or those in control have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.
N.J.S.A. 14A:12-7(l)(c). The definitions provision of the Act explains that “unless the context otherwise requires, the term ... ‘Shareholder’ means one who is a holder of record of shares in a corporation.” N.J.S.A. 14A:1-2.1.1
It is undisputed that there are 34 holders of record of shares in FBC. Thus, the Provision, which applies only to corporations having 25 or fewer shareholders, does not afford the Serys a remedy. The Serys argue, however, that FBC is “owned collectively and exclusively by 19 members of [the] family,” (Serys Br. at 16), and that the Act should be liberally construed so as to avoid double-counting certain family members, who own shares directly and as beneficiaries of various trusts. The Serys contend that only the beneficial owners (the 19 family members) should be counted for purposes of determining whether the Provision applies. To accept that contention, however, would fly in the face of the plain meaning of the Act, which defines “shareholder” only as the holder of record without mentioning beneficial ownership, and nothing in the Provision suggests that the Court should consider beneficial ownership when counting the number of shareholders. Although the Serys’ are correct that the Act should be liberally construed,2 N.J.S.A. 14A:1-1(2), we may not construe a statute in contravention of its plain meaning.
The Serys make much of the text introducing the Act’s definitions, which provides that the definitions apply “unless the context otherwise requires” (the “Context Clause”). N.J.S.A. 14A:1-2.1. Neither party provides an analysis of the legislative history of the Act’s Context Clause, but FBC cites Ruefenacht v. O’Halloran, 737 F.2d 320 (3d Cir.1984), for the proposition that the Context Clause does not permit us to rewrite a statutory definition unless “a statutory definition appears in a context in which the definition cannot sensibly be applied.” (FBC Br. at 15-16.) In Ruefenacht, we interpreted the context *398clauses of two federal securities laws, rather than the Act. Nonetheless, in the absence of guidance about the New Jersey-legislature’s intent in drafting the Context Clause, Ruefenacht informs our conclusion that the Context Clause was not designed to empower courts to expand the definition of shareholder. Moreover, the context here does not “require” any alteration of the definition of shareholder.
The Serys also argue that we should overlook the plain language of the Provision, based on the less-often-cited, but equally important, principle of statutory construction which holds that when the literal application of statutory language would produce an outcome demonstrably at odds with the statute’s purpose or would result in an absurd outcome, a court must look beyond the plain meaning of the statutory language. In re Kaiser Aluminum Corp., 456 F.3d 328, 338 (3d Cir.2006) (“A basic tenet of statutory construction is that courts should interpret a law to avoid absurd or bizarre results.”); United States v. Zats, 298 F.3d 182, 187 (3d Cir.2002) (refusing to “read a text to produce absurd results [that are] plainly inconsistent with the drafters’ intentions”).
The outcome of a plain language interpretation is neither demonstrably at odds with the statute’s purpose nor absurd. The Act was designed, inter alia, “to give special recognition to the legitimate needs of the close corporation,” N.J.S.A. 14A:1-l(3)(c), by providing “limited bases for statutory relief,”3 Brenner v. Berkowitz, 134 N.J. 488, 634 A.2d 1019, 1027 (1993). In enacting the Provision, “the Legislature demonstrated its intent to increase the protection to minority shareholders who are powerless within a [close] corporation, as well as powerless to leave.” Id. Our decision does not frustrate, or even concern that purpose. The issue before us is not the quality of the protections afforded by the Provision but, rather, which corporations’ shareholders are entitled to those protections. The Provision clearly applies only to companies with 25 or fewer holders of record of shares of stock. FBC has more than 25 holders of record of shares of stock, and so it does not implicate the protections of the Provision.
In the same vein, the Serys argue that FBC, having only 19 beneficial owners, is a close corporation of the sort the legislature determined has special needs, and thus that its shareholders require special protection.4 However, the text of the Provision does not cover “close corporations,” but only corporations “with 25 or less” holders of record of shares of the corporation. N.J.S.A. 14A:12-7(l)(c). Thus, the Serys’ argument does not demonstrate that the outcome here is at odds with the purpose of the legislation.5
*399Finally, the Serys argue that it is absurd 6 to refuse them “the opportunity to seek the protection provided to minority shareholders of close corporations ... merely because these three young men own their shares both individually and though trusts,” (Sery Br. at 40), but the record is devoid of evidence, such as copies of all the trust documents, which might provide support for this argument.7 The real issue appears to he not in the outcome of this case, but in the legislature’s preferred method of identifying the corporations which fall within the ambit of the Provision. This matter of policy is for the New Jersey legislature, not for us.
We will affirm the order of the District Court dismissing the Serys’ amended complaint.
. The Serys point to a separate and factually unrelated statute — the Shareholder Protection Act, 14A:10A1 to -6 (the "SPA”), which was enacted as an "addition to the requirements” of the Act, NJ.S.A. 14A:10A-1 — arguing that the SPA "expressly incorporates the concept of beneficial ownership into the definition of 'shareholder,' ” (Sery Br. at 23), by providing a definition of " [¡Interested stockholder” which applies only to "beneficial owners.” We may not speculate (and we have no reason to believe) that the New Jersey legislature intended the terms "interested stockholder” and "shareholder” to be synonymous.
. The Serys make reference to the 1968 Commissioner’s Comment, which explains that the Act should be liberally construed; however, the Serys omit an important part of the comment, which clarifies that New Jersey corporate laws have been "characterized by the New Jersey courts as being liberal corporation laws, offering a favorable corporate climate.” See Comment, NJ.S.A. 14A:1-1. The Serys’ preferred interpretation is inconsistent with this objective.
. The related provision in the Model Business Corporation Act Annotated § 14.30(b)(2) (4th ed.2008) (the "Model Act Provision”) has a threshold of 300 shareholders, and other requirements.
. The Serys proffer other facts which are appealing, but are more appropriate for the legislature. For example, FBC appears to bear all the hallmarks of a closely-held corporation, including, for one thing, that its board of directors has always consisted of family members, and only family members (never more than nineteen people) have ever had a beneficial interest in company stock. The Serys point to the Model Act Provision, which employs a variety of characteristics to identify corporations to which a minority oppression provision applies, but the New Jersey Provision at issue handles it differently, and looks only to the number of holders of record of a corporation’s stock.
.The Serys’ cite Berger v. Berger, 249 N.J.Super. 305, 592 A.2d 321 (N.J.Super.Ct. Ch. Div.1991), claiming that Berger holds that a beneficial owner can "be considered a 'minority shareholder’ for the purposes of Section 14A:12-7(1)(c).” Berger, which is not controlling, is not nearly so broad, and, instead, holds that a beneficial owner has standing to bring a dissolution suit under New *399Jersey law. Berger provides us with no authority to ignore the plain meaning of the Provision.
. Relying on Dutton v. Wolpoff and Abramson, 5 F.3d 649, 653 (3d Cir.1993), the Serys argue that "even when the plain meaning [does] not produce absurd results but merely an unreasonable [result] plainly at variance with the policy of legislation as a whole this Court has followed that purpose rather than the literal words.” (Sery Br. at 39-40.) Here, the outcome is neither unreasonable nor plainly at variance with the policy of the legislation, which is to protect minority shareholders of corporations with fewer than 25 shareholders.
. The Serys offer a hypothetical scenario where the outcome of this case might be absurd: a corporation could abuse the Provision by creating superfluous trusts in order to inflate the quantity of shareholders in a corporation and avoid application of the Provision. There is no evidence that such is the case here. The Serys’ hypothetical outcome may be absurd, but the real outcome is not.
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OPINION
PER CURIAM.
Deliy Pereira Da Silva petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Da Silva, a native and citizen of Brazil, entered the United States in June 2005. She was eventually placed in removal proceedings for having entered the United States without being admitted or paroled. She conceded removability and, in 2007, applied for withholding of removal and relief under the Convention Against Torture (“CAT”). In support of her application, she argued that she feared returning to Brazil because of persecution she had suffered on account of her involvement in a local political campaign.
In an August 2007 hearing before the Immigration Judge (“IJ”), Da Silva testified that, for approximately six months in 2004, she worked as a canvasser for a politician who was running for city council. Da Silva explained that, in November 2004 (around the time of that election), she received threatening phone calls from an unidentified individual, telling her to stop supporting the politician. In May 2005, after the politician had won the election, Da Silva returned home from church to find her house ransacked. One of the walls had writing on it that said “we told you this would happen.” Although Da Silva contacted the police, who filed a report of the incident, she was unable to name any possible suspects. Shortly thereafter, she came to the United States.
The IJ concluded that Da Silva’s testimony lacked credibility, highlighting several inconsistencies amongst Da Silva’s testimony, her application, and materials in the record. In light of these inconsistencies, as well as the country conditions in Brazil, the IJ concluded that Da Silva had failed to demonstrate entitlement to withholding of removal. The IJ also denied her request for CAT relief, concluding that her claims were not credible and that she had failed to provide additional evidence indicating that she would likely be tortured if removed to Brazil. On appeal, the BIA held that the IJ’s adverse credibility determination was not clearly erroneous. In doing so, the BIA reiterated some of the inconsistencies cited by the IJ and highlighted two additional points: (1) Da Silva *401was not sure who made the threatening phone calls or vandalized her house; and (2) her children and mother continued to live in Brazil without adverse consequences. The BIA also concluded that, in light of the adverse credibility determination, Da Silva could not prevail on her CAT claim. Da Silva now seeks review of the BIA’s decision.
II.
We have jurisdiction over Da Silva’s petition pursuant to 8 U.S.C. § 1252(a)(1). We review an adverse credibility determination for substantial evidence. See Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir.2003). Under this deferential standard of review, we must uphold this finding “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
The IJ articulated several reasons for concluding that Da Silva lacked credibility. First, Da Silva’s testimony and the police report indicated that her house was vandalized in May 2005, whereas her application stated that the incident occurred in March 2005. Second, although her testimony and the police report indicated that her house was merely ransacked,1 she submitted photographs indicating that her house was reduced to rubble. Third, the police report did not mention anything about the alleged writing on her wall, nor did she submit any photographs of this writing. Finally, although the politician submitted a letter confirming Da Silva’s involvement in his campaign, he did not mention anything about the threatening phone calls she allegedly received or the alleged damage to her house — incidents of which he was apparently aware.2
Although Da Silva’s brief attempts to explain the inconsistency concerning the date her house was allegedly ransacked, the brief makes no attempt to reconcile the other inconsistencies. Moreover, we are not persuaded by her attempts at the hearing to neutralize these inconsistencies. As such, we conclude that the substantial evidence supports the IJ’s adverse credibility determination.3
In light of this adverse credibility finding, the BIA did not err in upholding the IJ’s denial of Da Silva’s withholding of removal claim. Moreover, Da Silva has failed to show that she would likely be tortured if removed to Brazil. See 8 C.F.R. § 208.16(c)(2). Her remaining arguments are without merit.4 Accordingly, we will deny the petition.
. The police report stated that "a[n] unknown person burglarized her residence and stolen [sic] the following objects: [o]ne iron door and one iron window, and other objects of domestic use.” (Admin. Rec. at 149.)
. Da Silva testified that she had informed the politician of these incidents. (See Admin. Rec. at 130-31.)
. The REAL ID Act governs this case, as Da Silva filed her application after the statute’s enactment. Before the Act’s enactment, "discrepancies in a petitioner’s testimony [had to] involve the 'heart of the asylum claim’ in order to support an adverse credibility finding.” Kaita v. Att'y Gen. of the U.S., 522 F.3d 288, 296 (3d Cir.2008). Under the Act, however, inconsistencies underlying an adverse credibility determination need not go to the heart of the alien’s claim. See 8 U.S.C. § 1158(b)(1)(B)(iii). We need not consider the impact of this statute, for the inconsistencies here go to the heart of Da Silva’s claim and thus would support an adverse credibility determination even under the pre-REAL ID Act standard.
.Much of Da Silva’s counseled brief is devoted to a discussion of law that is, at most, only tangential to the issues in this case. We note that several lengthy passages from the brief can be found, verbatim, in other briefs her *402counsel has recently submitted to our court. We trust that, going forward, counsel's filings will be better tailored to the case in question.
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OPINION
PER CURIAM.
Jessie Snyder appeals the District Court’s order denying her motion for reconsideration of the District Court’s February 5, 2008, order. We will affirm.
The procedural history of this case and the details of Snyder’s claims are well known to the parties and need not be discussed at length. Briefly, the government filed a complaint to foreclose on a lien against Snyder’s property in order to fulfill a judgment against her for unpaid taxes. The District Court entered an order of sale and later amended the order to require any occupants to vacate or be evicted. Snyder appealed the District Court’s amended order, and this Court affirmed. The government then moved to amend the order of sale to clarify the duties of the IRS and the United States Marshals Service. The District Court granted the motion. Snyder filed a motion for reconsideration which the District Court denied. Snyder filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
On appeal, Snyder argues that she paid her tax debt by tendering a “public office money certificate.” Her arguments are without merit. We rejected this frivolous argument in Snyder’s prior appeal, United States v. Snyder, 308 Fed.Appx. 651 (3rd Cir.2009). Accordingly, we will affirm the District Court’s order. We warn Snyder that the filing of frivolous pleadings in the future may result in sanctions.
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OPINION
PER CURIAM.
Yitang Sheng petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Sheng, a native and citizen of the People’s Republic of China, entered the United States on a J-l visa in September 1987. In November 1988, he married Juanita Dilan, a United States citizen. About a month after they were married, Mr. Sheng returned to China to fulfill the foreign residency requirement of his visa. Approximately ten months after he returned to China, Ms. Sheng gave birth to a child by another man, but still remained married to Mr. Sheng. After Mr. Sheng fulfilled his foreign residency requirement, he reentered the United States in July 1990 and was admitted as a conditional lawful permanent resident (“LPR”).
In May 1992, the Shengs jointly filed an 1-751 petition to remove the conditions of Mr. Sheng’s LPR status. In July 1992, Lisa Hoechst, an officer with the former INS, interviewed them individually to assess the validity of their marriage. Ms. Sheng indicated during her interview that she had been paid to marry Mr. Sheng. In light of this interview, INS terminated his LPR status.
In May 1994, INS initiated deportation proceedings (now referred to as removal *409proceedings) against Mr. Sheng. When he did not appear at an August 1997 hearing, the Immigration Judge (“IJ”) ordered his removal in absentia. Mr. Sheng subsequently filed a motion to reopen, which the IJ granted in May 1998. The case was continued to allow Mr. Sheng to prepare a challenge to INS’s termination of his LPR status.
In May 2002, while Mr. Sheng’s case was still pending,1 INS special agents Maurice Hall and David Christino visited the Shengs’ apartment in Bethlehem, Pennsylvania, and obtained an affidavit from Ms. Sheng stating, inter alia, that she “only married [Mr. Sheng] for the money and so he could get his green card.” (Admin. Rec. at 825.) Mr. Sheng moved to suppress the affidavit, arguing that the INS agents had obtained it via threats and coercion. The IJ denied the motion in June 2002.
Over the course of two merits hearings, held in November 2008 and June 2005, respectively, the IJ heard testimony from the Shengs, Hoechst, Special Agents Hall and Christino, and three other witnesses. During these two hearings, Ms. Sheng testified on four separate occasions. The IJ also reviewed a videotape recording of Ms. Sheng’s 1992 INS interview.
In November 2005, the IJ issued a written decision upholding the Government’s termination of Mr. Sheng’s LPR status and ordering his removal to China. In doing so, the IJ concluded that “the overwhelming circumstantial evidence in this case clearly indicates that [Mr. Sheng’s] marriage was not bona fide.” (Decision of IJ at 33.) The IJ, who characterized the documentary evidence submitted in support of the marriage as “meager,” (see id. at 35), noted that
[a]t the time they were married, [the Shengs] spoke no common language, and they appear to have had little in common other than working for the same employer. Indeed, in addition to their notable cultural differences, there was a conspicuous age gap between them as well as a significant difference in education and background. Moreover, shortly after marrying [Mr. Sheng], Ms. Sheng became pregnant by another man and ultimately gave birth to that child while [Mr. Sheng] was in China. By contrast, the record is unclear as to whether the Shengs’ marriage was ever consummated, and even if the Shengs did engage in sexual relations, it seems that they did so only once during the course of their nearly 17-year marriage. Additionally, the Shengs lived apart for most of their marriage, particularly during the times when [Mr. Sheng] returned to China, when he worked in New Hampshire and other locations while she lived in Pennsylvania, and when he moved to New York City while she, again, remained in Pennsylvania.
(Id. at 33-34.)
The IJ further explained that “[m]ost damning to [Mr. Sheng’s] arguments about the bona fides of his marriage ... is the testimony of his wife.” (Id. at 34.) The IJ emphasized that, both in the 1992 INS interview and during the 2002 home visit, Ms. Sheng admitted that she had been paid to marry Mr. Sheng. Although Ms. Sheng, in testimony before the IJ, claimed that she was under the influence of drugs on the day of the 1992 INS interview, the IJ “watched the videotape of her interview and found her to be coherent and lucid.” (Id.) Moreover, although Ms. Sheng claimed that her 2002 affidavit was the *410product of coercion, the IJ found that the special agents’ testimony was credible and that “there is no reason to doubt the veracity of [the affidavit].” (Id.) Additionally, the IJ stated that Ms. Sheng was “defensive and evasive” during her testimony.2 (Id. at 35.)
Mr. Sheng appealed the IJ’s decision, but the BIA dismissed the appeal as untimely and subsequently denied his motion to reopen. Mr. Sheng, represented by new counsel, subsequently filed a motion requesting the BIA to accept his untimely appeal, arguing that his former counsel had provided ineffective assistance in filing the appeal late. The BIA granted the motion in December 2007.
In November 2008, the BIA adopted and affirmed the IJ’s decision. The BIA stated that, contrary to Mr. Sheng’s contention, the IJ properly considered all of the evidence. The BIA also concurred with the IJ’s conclusion that the documentary evidence Mr. Sheng submitted in support of the marriage was “meager,” observing that most of the evidence post-dated the 1992 INS interview. Finally, the BIA rejected Mr. Sheng’s argument that the IJ based her decision on “impermissible speculation.” Mr. Sheng now seeks review of the BIA’s decision.
II.
We have jurisdiction over Mr. Sheng’s petition for review pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s decision adopting and affirming the IJ’s decision for substantial evidence. See Dia v. Ashcroft, 353 F.3d 228, 248 (3d Cir.2003) (en banc); see also Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir.2008) (“On appeal, we review to determine whether substantial evidence supports the factual findings underlying the IJ’s decision regarding the nature of the marriage.... ”). Under this deferential standard of review, we must uphold the agency’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).
An alien who marries a United States citizen may obtain conditional LPR status. See 8 U.S.C. § 1186a(a)(l). In the ninety-day period immediately before the second anniversary of the alien’s obtaining conditional LPR status, the alien may petition to remove those conditions. See 8 U.S.C. § 1186a(c)(l), (d)(2). The petition must show, inter alia, that the marriage “was not entered into for the purpose of procuring [the] alien’s admission as an immigrant.” See 8 U.S.C. § 1186a(d)(l). If the Attorney General determines that the marriage is not bona fide, the alien’s LPR status is terminated. See 8 U.S.C. § 1186a(c)(3)(C). The alien can seek review of this determination in removal proceedings, where the Attorney General must show, by a preponderance of the evidence, that the marriage is a sham. See 8 U.S.C. § 1186a(c)(3)(D). The relevant inquiry is whether the couple “intend[ed] to establish a life together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.1975). The couple’s conduct after the marriage is relevant only to the extent that it evidences their state of mind at the time they married. Id. at 1202.
The substantial evidence in this case supports the IJ’s determination that the Shengs’ marriage was not bona fide. First, on two separate occasions — ten years apart from one another — Ms. Sheng admitted that she had been paid to marry Mr. Sheng. These admissions are *411supported by a videotape recording of her 1992 interview and the testimony of three INS officials. Second, Mr. Sheng submitted only limited documentary evidence in support of the marriage, and the BIA correctly observed that much of this information concerned events that occurred after the 1992 INS interview (which itself took place nearly four years after they married). Finally, the circumstantial evidence cited by the IJ, especially the fact that Mr. and Ms. Sheng spent most of their marriage living apart in different states, suggests that the couple did not intend to establish a life together.
Mr. Sheng argues that the IJ failed to explain why she found the testimony of the Government’s witnesses credible or why she “discounted” the testimony of Ms. Sheng and his other witnesses.3 We recognize that the IJ could have been more explicit and detailed in setting forth some of the reasoning for her findings. Nonetheless, given the circumstances of the Shengs’ marriage, the limited documentary evidence, and the videotape recording of Ms. Sheng’s 1992 interview, Mr. Sheng has not shown that the record compels the conclusion that his marriage was bona fide. Accordingly, we will deny the petition.
. The IJ held multiple hearings between 1998 and 2002 but did not reach the merits of the case.
. During her June 2005 testimony, Ms. Sheng admitted that she and Mr. Sheng had separated in 2004.
. Because Mr. Sheng did not present his two other claims to the BIA, we lack jurisdiction to consider them here. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). We note, however, that these unexhausted claims appear to lack merit.
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OPINION
PER CURIAM.
I.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order dismissing their appeal of the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Petitioners Xiao Yan Chen, Rong Qiao Zhang, and Ming Fu Zhang are natives and citizens of the People’s Republic of China.1 They arrived in the United States on January 1, 2006. Shortly after, on January 18, 2006, the Department of Homeland Security (“DHS”) served Petitioners with notices to appear, charging them with being subject to removal as aliens present in the United States without proper documentation under section 212(a)(7)(A)(i)(I) of the Immigration and Naturalization Act (“INA”). On March 2006, Petitioners appeared in immigration court and admitted to the charges against them and conceded removability. In seeking relief from removal, Chen, lead Petitioner, sought asylum, withholding of removal, and protection under the CAT, listing her children as derivative beneficiaries.2
On August 3, 2006, an IJ granted Chen’s asylum application. On August 11, 2006, DHS filed a motion to reopen in order to submit newly-received evidence that the documents that Chen submitted in support of her application were not genuine.3 Chen did not oppose the motion, and the IJ granted the motion to reopen the proceedings.
On December 4, 2007, following a merits hearing, the IJ denied Chen’s application upon finding that Chen was not credible because she provided illegitimate documentation in support of her claim of having been persecuted for violating China’s family planning policy. Chen appealed the IJ’s ruling and, on March 11, 2009, the BIA dismissed Chen’s appeal, affirming the IJ’s adverse credibility determination. Chen filed a timely petition for review in this Court.
III.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases *413for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Because Chen filed her application for relief after the enactment of the REAL ID Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an IJ may base his or her credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 208(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
At her immigration hearing, Chen testified that because she did not wait the required four-year period between having her first child and second child, she was issued a fine and given notice in December 1992 that she would be sterilized for having violated the country’s birth policy. In order to avoid sterilization, Chen testified that she went into hiding for a period and, as a result, Government officials tore down her home. Chen did not provide any evidence corroborating the claim, however.
In June 2002, Chen and her husband divorced and, in April 2003, she remarried. Chen testified that in December 2004, while undergoing a gynecological exam, she discovered that she was pregnant. Following her exam, Chen testified that she was taken to a hospital, where an abortion was performed against her will. Chen stated that after the procedure, she asked her mother to obtain the abortion and medical certificates from the hospital. The hospital refused, but later relented and gave Chen’s mother the documents.
Chen testified that she again was ordered sterilized, but the procedure was never performed because she told hospital officials that she would soon be leaving China for the United States. At the hearing, Chen testified that she believed the documents were authentic. Chen’s brother also testified that he obtained the abortion certificate from his mother and brother-in-law and that he brought the documents with him to the United States in 2006.
The IJ determined that the documents that Chen provided in support of her application were likely counterfeit. The DHS Forensic Document Laboratory concluded that it was unlikely that the documents are genuine because they were produced using methods inconsistent with known government documents, and instead consistent with known counterfeit documents. (A.R. 421.) Chen did not provide any other evidence establishing that the documents were genuine. Instead, she explained only the process by which the documents had been brought from China to the United States.
The IJ then weighed Chen’s testimony against the forensic lab report and determined that the documents were not genuine and that Chen’s use of false documentation to support her claims undermined her credibility. As a result, the IJ ruled that Chen failed to meet her burden of proving past persecution or a well-founded fear of future persecution, and thus, failed to establish eligibility for asylum. The BIA affirmed the IJ’s credibility determination, finding that the “observations were logically tied to the material points of the respondent’s claim and furnished a sound basis for his findings.” (A.R.4.)
*414Our review of the record leads us to conclude that substantial evidence supports the adverse credibility finding. In Matter of O-D-, 211. & N. Dec. 1079,1082 (BIA 1998), the BIA held that when a fraudulent document is used to support an asylum claim, it “generally discredits [the applicant’s] testimony regarding asylum eligibility.” Indeed, “a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007).
In this case, the documentary evidence that Chen submitted went to the heart of her claim, providing the only corroborating evidence that she was forced to undergo an abortion. While Chen’s brother testified at the hearing that he had been given the documents by other family members, the testimony did not address the issue of their authenticity.4 As a result, Chen was unable to rebut the forensic analyst’s conclusion that the documents were likely fraudulent.
Although Chen argues that the IJ should have ordered DHS to conduct further forensic testing on the documents before rendering a decision, she cites no legal authority supporting the proposition. Indeed, at all times, Chen bore the burden of proof of demonstrating through credible evidence that she qualified for relief. See INA § 208(b)(1)(B) (burden of proof for asylum). Further, the forensic report was first produced to Chen in August 2006, when the Government filed its motion to reopen, and thus, she has had significant opportunity to rebut its findings.
Accordingly, we hold that substantial evidence supports the agency’s conclusion that Chen’s testimony was not credible, and therefore she could not establish a well-founded fear of future persecution or torture. The petition for review will be denied.
. Rong Qiao Zhang and Ming Fu Zhang are the minor children of Xiao Yan Chen.
. Because Chen is the lead petitioner, we will refer primarily to her throughout our Opinion.
.Chen submitted with her asylum application an abortion certificate and accompanying medical receipt issued by a hospital in Chan-gle City.
. Chen’s mother provided a written statement explaining that she obtained the abortion certificate from a "local government agency.” (A.R.65). However, the document itself states that it was issued by "Changle Hospital.” Accordingly, the statement from Chen's mother does not undermine the findings of the forensic analyst.
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OPINION OF THE COURT
FISHER, Circuit Judge.
A jury convicted Marco Antonio Areva-lo-Caballero (“Arevalo”) of one count of conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846. The District Court sentenced him to 100 months in prison and five years of supervised released. We will affirm the District Court’s judgment.
I.
We -write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Arevalo worked at a Walmart store, where he befriended a coworker named Caesar Augusto Castano-Cardona (“Casta-ño”) and agreed to Castano’s request to drive a car carrying drugs from New Jersey to Philadelphia, Pennsylvania. Casta-ño received the car from an undercover informant working for Immigration and Customs Enforcement (“ICE”). Unbeknownst to either Castaño or Arevalo, ICE agents in Texas had intercepted the car after it entered the United States from Mexico, replaced the heroin found inside with sham heroin, installed a tracking device and a “kill switch” in it, and airlifted it to New Jersey in hopes of conducting a controlled delivery. On the designated day, Arevalo began driving the car to Philadelphia with Castaño trailing in another vehicle. Law enforcement agents activated the kill switch, disabling the car and forcing Arevalo to pull over. The agents subsequently arrested both Arevalo and Castaño and transported them to an ICE office, where Arevalo signed a waiver-of-rights form and told ICE agents that he knew there were drugs in the car.
Arevalo was thereafter indicted on one count of conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846. Before trial, he moved to suppress the statements he had made to the ICE agents, claiming, contrary to the testimony of one of the agents, that he had signed the waiver only after being interrogated. The District Court credited the ICE agent’s testimony and denied the motion. The jury found Arevalo guilty. Arevalo filed a motion for a new trial, which was denied by the District Court. The District Court sentenced him to 100 months in prison and five years of supervised release. Arevalo has timely appealed his conviction and sentence.1
II.
Arevalo argues that the District Court improperly denied his motion for a new trial and that his sentence is procedurally and substantively unreasonable.
*421A. Motion for a New Trial
Arevalo argues that the District Court erred in denying his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, which provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). “Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the [government, but instead exercises its own judgment in assessing the [gjovernment’s case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002) (citations omitted). A district court may “order a new trial only if it believes that there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted.” United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir.2008) (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.” Id. at 1005 (citation omitted). Rule 33 “motions are not favored and should be granted sparingly and only in exceptional eases.” Id. (internal quotation marks and citation omitted).
The basis for Arevalo’s Rule 33 motion is an inconsistency in the testimony of Newark-based ICE Special Agent Candido Velez, who testified at Arevalo’s suppression hearing that it was he who had installed the tracking device and the kill switch in the car in Texas, while at trial he stated that he had not done so and said, “I misspoke----I meant that to say [sic] the agents in Texas did it.” (App. al76.) Arevalo describes Velez’s testimony at the suppression hearing as false. In his view, because the District Court denied his motion to suppress his statements based on its conclusion that Velez was credible, and because Velez’s purportedly false testimony cast a pall on that credibility determination, the statements should not have been admitted at trial, thus calling the jury’s verdict into question. The District Court denied the Rule 33 motion, reasoning that Arevalo had failed both “to establish a link between Agent Velez’s inconsistent testimony at trial and the admissibility of [Arevalo]’s confession” and to cite “any evidence produced at trial that casts doubt on whether the police unlawfully obtained [the] confession.” (App.a8.)
Even if we agreed with Arevalo’s description of Velez’s testimony at the suppression hearing as false, we would still perceive no grounds for finding that the District Court abused its discretion. First, by urging us to find an abuse of discretion in the District Court’s ruling, Arevalo is essentially inviting us to reconsider the District Court’s factual basis for denying his motion to suppress, but we almost never question a district court’s credibility assessment when it “is based on testimony that is coherent and plausible, not internally inconsistent and not contradicted by external evidence^]” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997) (citation omitted). Arevalo has given us no compelling reason to upset the District Court’s finding.2
*422Second, the inconsistency Arevalo has highlighted for us was put squarely before the jury not only by his own counsel, but by the District Court. The jury chose to convict, and we cannot second-guess that choice merely on the basis of that inconsistency. See United States v. Haut, 107 F.3d 213, 220 (3d Cir.1997) (“[I]t is firmly established that it is the jury’s prerogative to decide all questions of credibility.” (internal quotation marks and citations omitted)).
Finally, even assuming Arevalo’s confession was admitted in error, any such error was harmless beyond a reasonable doubt, as his confession was far from the only evidence of his participation in the conspiracy. See United States v. Price, 13 F.3d 711, 720 (3d Cir.1994). Castaño testified that Arevalo agreed to drive a car loaded with drugs with full knowledge of what was inside. The government also
presented evidence of Castaño taking possession of the car, paying the informant for it, and turning it over to Arevalo. Finally, there was testimony from law enforcement authorities that Arevalo and Castaño were arrested together near the car with drugs inside and that Arevalo was the driver of the car. In brief, the evidence of Arevalo’s guilt, of which his confession represented only a part, was overwhelming. Cf. United States v. Shabazz, 564 F.3d 280, 286 (3d Cir.2009). Accordingly, we conclude that the District Court committed no abuse of discretion and will affirm its denial of Arevalo’s Rule 33 motion.
B. Sentencing
Arevalo attacks his sentence on both procedural and substantive grounds. We review both the procedural and the substantive components of his sentence for reasonableness under an abuse-of-discretion standard. United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). Procedurally, a district court must “follow a three-step sentencing process” by (1) accurately calculating the applicable sentencing Guidelines range; (2) formally ruling on the motions of both parties and stating on the record whether the court is granting a departure and how that departure affects the Guidelines range; and (3) considering all the factors under 18 U.S.C. § 3553(a) and adequately explaining the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (citation omitted). If the district court’s sentence is procedurally reasonable, we then consider its substantive reasonableness, bearing in mind that “[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008) (citation omitted).
Turning to the procedural part of our inquiry, Arevalo argues that the District Court did not formally rule on his motion for a downward departure based on his purported status as a deportable alien and that the Court failed to indicate whether it understood that it had the discretion to grant or deny that motion. Arevalo failed to object at sentencing to the procedures followed by the District Court, and thus our review of these issues is for plain error. United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir.2009). “Plain error requires the defendant to demonstrate that the district court committed an error that is plain and that affects substantial rights.” Id. at 446 (internal quotation marks, alteration and citation omitted). “An error affects substantial rights when it *423is prejudicial: It must have affected the outcome of the district court proceedings.” Id. (internal quotation marks and citation omitted). “If these requirements are met, we may, at our discretion, grant relief.” Id. (citation omitted).
Although “[o]ur precedent ... clearly requires that district courts engage in the second step — ruling on departure motions — as a part of calculating the applicable range[,]” United States v. Lofink, 564 F.3d 232, 238 (3d Cir.2009) (internal quotation marks, other alteration, citation and footnote omitted), where the government “concede[s] the plausibility of the downward departure[,]” we may “infer that the departure motion ha[s] been denied by the court in recognition of its ability to depart had it chosen to do so[,]” United States v. Jackson, 467 F.3d 834, 839 (3d Cir.2006) (quotation marks, other alteration and citations omitted); see also Lofink, 564 F.3d at 239.
During his sentencing hearing, Arevalo asked the District Court to reduce his sentence in light of his purported deporta-bility. The government evidently considered Arevalo’s request as a motion for a Guidelines departure, arguing that “this case doesn’t present any set of unique circumstances that would take Mr. Areva-lo’s case outside the heartland[.]” (App. a366.) After hearing from the parties, the District Court correctly calculated Areva-lo’s Guidelines range as 87 to 108 months. The Court later addressed Arevalo’s purported deportability, stating as follows:
Now, there are some issues with regard to him as a deportable alien. Well, will there be some period of time following his sentence, and should that time be offset because that would be more punishment, et cetera? I don’t think that this Court has to address that, and I think that, because there is an inexactitude with regard to the amount of time that he may spend over and above this sentence in preparing to be deported, that it’s folly for this Court to try and build in some sort of consideration of that into a sentence.
(App.a374.)
Because the government rather clearly conceded the plausibility of the District Court’s discretion to depart downward, we can infer on this record that the District Court understood it had such discretion but simply chose not to exercise it, and thus there was no error at the second procedural step.3 See Jackson, 467 F.3d at 840; United States v. Stevens, 223 F.3d 239, 247-48 (3d Cir.2000).
Turning next to the substantive component of our analysis, Arevalo contends that his 100-month prison sentence is unreasonable because the District Court did not adequately account for what he describes as his limited role in the conspiracy. Rather than point us to any relevant legal authority to compel the conclusion that the District Court abused its discretion, Are-valo has merely directed our attention to the decisions of district courts in other circuits sentencing defendants also convicted of drug offenses. That approach is flawed, as no district court’s sentencing discretion is bound by another district court’s sentencing decision. Having comprehensively reviewed the record and concluded that Arevalo’s within-Guidelines sentence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
*424III.
For the foregoing reasons, we will affirm the District Court’s judgment.
. 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.
. The inconsistency between Velez’s suppression hearing and trial testimony regarding who outfitted the car in Texas bore on a peripheral issue wholly unconnected to the central factual dispute at the suppression hearing: whether Arevalo signed the waiver before or after being interrogated. Even if the District Court had learned during the suppression hearing that there was no truth to Velez’s statement that it was he who had outfitted the car instead of his ICE colleagues in Texas, there is no basis for concluding that the District Court would not have found Velez’s proffered sequence of events more credible than Arevalo’s, especially in light of Ve*422lez’s later recognition of and explanation for his mistake.
. We do not mean to imply that a defendant’s deportability is necessarily a permissible ground for a downward departure. That question is still an open one in this Circuit, see United States v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir.1998), and we need not resolve it here.
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OPINION OF THE COURT
PER CURIAM.
Zhi Liang Chen, a citizen of China, entered the United States in 2004 without valid travel documents. He now petitions for review of the Board of Immigration Appeals order affirming without opinion an Immigration Judge’s order denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons set forth below, we will deny the petition for review.
At a hearing before the Immigration Judge (“IJ”), Chen alleged that he had been persecuted on account of religion as he is a Christian. Chen testified that he began participating in church activities with his grandmother when he was in high school. He and his family initially attended a government sanctioned church, but Chen later joined an underground “private” church in 2001 after believing that the Chinese government was limiting his ability to worship. He began distributing religious pamphlets and giving speeches about the Bible, both while he was in high school and after graduation at his place of work. He also stated that from the end of 2003, some church members would gather at his home to discuss the Bible and pray, as well as participate in activities associated with an underground church.
Chen also testified that in August 2004, while working at a supermarket, he was arrested and taken to a police station where he was further interrogated. When Chen refused to divulge details of the church meetings, he was slapped on the face. Chen also alleges that the police tried to bribe him to find out details of church meetings. He was detained for about forty-eight hours. After being released, he was not allowed to leave town without permission and was required to report to the police station regularly. Chen left China for the United States in November 2004 and entered illegally in December 2004.
At a continued hearing in June 2006, Chen was given the opportunity to make additional changes to his asylum application. Through his attorney, Chen indicated that he wanted to change the information regarding the date on which his employment ended at the supermarket. At the beginning of the hearing, he requested the date to be changed to April 2004. Chen’s attorney went off the record to confirm this fact and the IJ verified that this change was true, accurate, and complete. During cross-examination, however, Chen was asked how he could have been arrested in August 2004 if he ended work at the supermarket in April 2004. Chen responded that he amended his application to indicate that his employment ended “August 10th.” The IJ, however, pointed out that Chen had made an effort to specifically amend this date to April 2004, and when asked to explain this inconsistency, Chen stated that he “did not really pay attention to it.”
The IJ determined that Chen was “not a credible and persuasive witness.” The IJ cited material discrepancies and inconsistencies between his testimony, asylum application, and documentary evidence. The IJ also noted that even if credible, Chen still failed to meet his burden of proof for asylum and withholding of removal, and did not establish the likelihood that he would be tortured under CAT. The Board of Immigration Appeals (“BIA”) affirmed the I J’s decision without opinion.
*426Where the BIA simply affirms the IJ’s decision, we review the IJ’s opinion. See Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir.2003) (en banc). We review the IJ’s findings of facts for substantial evidence and will uphold the adverse credibility findings “to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). We may reverse these findings “only if there is evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.” Id.; see also INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). Adverse credibility findings may be based on inconsistencies, but only if the inconsistencies relate to facts at the heart of the claim, rather than to unimportant details. See Chukwu v. Att’y Gen. of the United States, 484 F.3d 185, 189 (3d Cir.2007); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (cases explaining the pre-REAL ID Act standard of review).1
The IJ determined that Chen was not a credible or persuasive witness based on the inconsistencies in Chen’s testimony and the supporting documentation. We agree. Based on our review of the record, Chen was inconsistent on material aspects of his testimony that relate to the heart of his persecution claim. For example, he initially testified that he was Catholic; a few questions later, he remembered he was not Catholic, but identified himself as a Christian. When Chen was questioned about his arrest, he stated that it occurred on August 10, 2004, while he was working at the supermarket. Yet Chen had specifically requested to clarify the date he ended his employment to be April 2004. Although dates may not always be important, here, the date of his arrest was a vital detail central to his persecution claim, and his inconsistency raises doubt about his credibility.
In addition, Chen was evasive and vague in his testimony, and the supporting documentation he provided further complicates his credibility. For example, when asked about the church he attends since arriving in the United States, Chen stated that the church is in New York, but he did not know its address or exact location. Chen testified that he attends weekly or so, and that a friend takes him there. Chen then stated that he takes public transportation, but when asked further, stated that his uncle drove him to Chinatown and he walked. Neither Chen’s friend nor uncle testified for him at the hearing to corroborate this claim. When asked about the underground church meetings that took place in China, Chen provided a certificate from the Changle Christian Association, but stated that it was associated with government churches. He also could not explain the purpose of the Changle Christian Association. Finally, Chen could not explain how his underground church in China came together, met, organized future meetings, or decided the content of its services.
Moreover, even if Chen were credible, the evidence supports the IJ’s conclusion that Chen failed to establish a well-founded fear of persecution, which requires both an objective and subjective showing. See Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). Persecu*427tion includes “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). Here Chen did not show that his fear rises to the level of persecution because he was slapped by Chinese authorities on one isolated occasion. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004) (an alleged beating that does not result in any injuries that require medical attention does not constitute persecution). Nor does Chen show that an objective fear of future persecution exists. He testified that after he left China, the police visited his home twice to inquire as to his whereabouts. Since then, his family members have not had problems with the authorities. Such limited interaction with the Chinese authorities does not suggest that Chen would face life-threatening circumstances if returned to China, and he provides no evidence that would allow us to conclude otherwise. Accordingly, we agree that he is ineligible for asylum.
Because Chen failed to meet the burden of proof required for asylum, he has also failed to meet the higher standard for statutory withholding of removal.2 See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003). Chen also fails to show that it is more likely than not that he will be tortured if removed to China, and therefore, he is not eligible to receive CAT protection. 8 C.F.R. § 208.16(c)(2). Accordingly, we will deny the petition for review.
. The IJ noted that there was a question as to whether the REAL ID Act applied to Chen's application. The REAL ID Act governs applications filed on or after May 11, 2005. Pub.L. No. 109-13, § 101 (a)(3)(B)(iii), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(l)(B)(iii)). Here, Chen’s application was signed on April 13, 2005; however, a cover letter and court filing stamp are dated June 20, 2005. Given the difference in dates, the IJ gave Chen the benefit of the doubt and did not apply the more stringent provisions of the REAL ID Act in adjudicating his application.
. The government argues that Chen waived judicial review by not arguing in his opening brief the IJ’s denials of his withholding of removal and CAT protection claims. We agree. Regardless, the standard for these claims is more demanding than the standard to grant asylum, and thus, Chen cannot establish eligibility for either. See Lukwago, 329 F.3d at 182-83.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Khar Abdulah and his wife brought suit in the Philadelphia Court of Common Pleas against Appellants Woodlake Management, Cliveden Realty Corp., Cliveden 2002, L.P. d/b/a Cliveden Apartments, and Cliveden, L.P. (collectively “Woodlake”) for personal injuries sustained in a shooting at the Cliveden Apartments. Appellee Alea London Ltd. (“Alea”), Woodlake’s insurer, sought a declaratory judgment in federal court to establish that an assault and battery exclusion in the insurance policy discharged its duty to defend or indemnify Woodlake. The United States District Court for the Eastern District of Pennsylvania granted Alea’s motion for judgment on the pleadings. We will affirm.
I.
On July 13, 2005, Abdulah was shot multiple times by an unknown assailant at the Cliveden Apartments, a property owned or maintained at all times by Woodlake. Ab-dulah and his wife filed suit asserting multiple counts of negligence against Wood-lake. In particular, Abdulah claimed Woodlake failed to provide or repair a working security lock, creating a dangerous and defective condition on the premises and enabling the assailant to enter the apartment building.1 Alea brought a declaratory judgment action in federal court arguing an exclusion in the policy for claims arising out of or related to an assault or battery, including a failure to prevent or suppress an assault or battery, exempted it from its duty to defend Wood-lake in Abdulah’s suit. The exclusion provides:
This insurance does not apply to any claim arising out of an assault and/or battery regardless of culpability or intent or out of a physical altercation or out of any act or failure to act to prevent or suppress such assault and/or battery or a physical altercation whether caused by the insured, an employee, a patron, or any other person.... The company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages arising out of an assault and/or battery or physical altercation. This exclusion applies as well to any claims by any other person, firm or organization, asserting rights derived from, or contingent upon, any person *429asserting a claim arising out of an assault and/or battery or a physical altercation, and specifically excludes from coverage claims for: emotional distress, or for loss of ... consortium____
This exclusion applies to all causes of action arising out of an assault and/or battery regardless of culpability or intent or out of a physical altercation including, but not limited to, allegations of negligent hiring, placement, training, or supervision, or to any act, error, or omission relating to such an assault and/or battery or a physical altercation.
Woodlake argued the exclusion did not apply because Abdulah alleged Woodlake’s negligence caused his injuries. The District Court granted Alea’s motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), concluding that because Abdulah’s injuries arose from the assault and not directly from Woodlake’s alleged negligence, the exclusion applied. Woodlake now appeals.2
II.
Our review of a Rule 12(c) motion is plenary. Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.2008). Judgment on the pleadings “will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Id. (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir.1988)). We must view all facts and draw all inferences in the light most favorable to the non-moving party. Id.
When interpreting an insurance contract under Pennsylvania law, which all parties agree governs the dispute, the court must ascertain and give effect to the parties’ intent as manifested in the terms of the policy. Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007). Where the contract language is ambiguous, we must construe that provision in favor of the insured. Minn. Fire & Cas. Co. v. Greenfield, 579 Pa. 333, 855 A.2d 854, 861 (2004). But, where the language is clear and unambiguous, we must give effect to it. Id. If an insurer relies on a policy exclusion as an affirmative defense to deny coverage, it bears the burden of proving the exclusion applies.3 Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The duty of an insurer to defend the insured applies to any suit in which the complaint alleges injuries that may potentially fall within the grant of coverage. Baumhammers, 938 A.2d at 290-91. The court must look beyond the cause of action pled to the factual allegations included in the complaint. Id. at 291.
The exclusion denies coverage for claims “arising out of’ an assault or battery. The term “arising out of’ is interpreted in terms of “but for” causation. See Madison Constr., 735 A.2d at 109-10. Therefore, if an assault or battery was a “but for” cause of the plaintiffs injuries, an assault and battery exclusion will apply to allegations that the insured’s negligence contributed to the injuries. See Acceptance Ins. Co. v. Seybert, 757 A.2d 380, 383 (Pa.Super.Ct.2000). The insurer only owes a duty to defend if the complaint alleges the insured’s negligence itself directly led to the injuries. See QBE Ins. Corp. v. M & S Landis Corp., 915 A.2d 1222, 1229 (Pa.Super.Ct.2007).
*430The parties’ dispute on appeal centers on the application of two Pennsylvania Superior Court cases: Seybert and QBE. In Seybert, the plaintiff brought suit against Belmont Bar, alleging it negligently served alcohol to five visibly intoxicated men who subsequently attacked him. 757 A.2d at 381. Belmont argued an assault and battery exclusion did not apply because the claims were based on Belmont’s negligence. Id. at 383. The court disagreed, holding that because the plaintiffs injuries resulted solely from the assault and battery, Belmont’s negligence was merely a contributing factor and not a direct cause of the injuries. Id.
In QBE, the underlying complaint alleged employees of defendant Fat Daddy’s Nightclub forcibly ejected a patron and improperly restrained him, eventually smothering him to death. 915 A.2d at 1224. The complaint alleged Fat Daddy’s negligently restrained the patron and negligently trained and hired its staff, causing the patron’s death. Id. The court held the exclusion did not apply because the complaint alleged the injuries “arose from the alleged negligence,” not from an assault or battery. Id. at 1229. Accordingly, the alleged negligence was a direct cause of the injuries, triggering the duty to defend. Id.
All injuries alleged in this complaint are the result of the shooting itself,4 and accordingly, the assault was a “but for” cause of Abdulah’s injuries. There was no allegation in the complaint that Woodlake’s negligence directly caused his injuries or caused any independent harm, as there was in QBE. Rather, Woodlake’s failure to provide a working security lock contributed to the shooting in much the same way as Belmont’s negligent selling of alcohol to visibly intoxicated individuals contributed to the plaintiffs injuries in Seybert. Moreover, Woodlake’s alleged negligence only relates to its failure to prevent or suppress the assault. The assault and battery exclusion encompasses claims arising both from an assault or battery and from a failure to prevent or suppress an assault or battery. This language unambiguously bars coverage for Abdulah’s claims, and accordingly, Alea has no duty to defend or indemnify Woodlake.5
III.
For the foregoing reasons, we will affirm the District Court’s grant of Judgment on the Pleadings.
. Abdulah's additional allegations of negligence all related to the inadequate security lock. For example, he alleged Woodlake negligently failed to warn him of the condition and negligently failed to train its employees to repair the lock.
. The District Court had jurisdiction under 28 U.S.C. § 1332(a)(2). We have jurisdiction over the appeal under 28 U.S.C. § 1291.
. Alea does not argue Abdulah’s injuries do not fall under the policy’s grant of coverage, see Baumhammers, 938 A.2d at 293 (holding an intentional act by a third party still constituted an "occurrence” under an insurance contract), but rather claims only that the assault and battery exclusion bars coverage.
. The shooting constituted an assault under Pennsylvania law. See 18 Pa. Const. Stat. § 2701 (defining assault as "negligently causing] bodily injury to another with a deadly weapon”).
. Abdulah's wife also brought a claim against Woodlake for loss of consortium. This claim derives from the assault, and coverage for it is explicitly barred by the language of the exclusion.
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ORDER
Petitioner having paid the required filing fee and having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner should compute the due date for filing its brief 21 days from the date of filing of this order.
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OPINION
PER CURIAM
On August 27, 2009, John R. Demos, Jr., an inmate in Washington State, filed in the District Court for the District of the Virgin Islands a pleading in which he requested, among other things, a declaratory ruling that he is being held in violation of Article 36(b)(1) of the Vienna Convention on Consular Relations. According to Demos, his incarceration violates the Vienna Convention because he owes allegiance to “foreign power[s]” — ie., “the Vatican, and the Rothschild family of France.” Compl. at 2. The District Court dismissed the matter for lack of jurisdiction. Demos appeals.
We have appellate jurisdiction under 28 U.S.C. § 1291. We will summarily affirm the District Court’s judgment because the appeal presents “no substantial question.” 3d Cir. IOP Ch. 10.6. Demos made no showing at all to establish that a Virgin Islands District Court has jurisdiction over his purported request for declaratory relief.1
. To the extent that Demos sought some form of habeas relief, and to the extent that a certificate of appealability ("COA”) is necessary for this appeal, a COA is denied.
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OPINION OF THE COURT
CHAGARES, Circuit Judge.
Molfetta Industries, Co, Inc. (“Molfetta Industries”) and Molfetta Construction (“Molfetta Construction”) (collectively “Molfetta”) appeal from the District Court’s confirmation of an arbitration award in favor of New Jersey Building Laborers District Council and Local 325, Laborers’ International Union of North America (collectively the “Union”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summa*349rize the essential facts. On September 2002, Molfetta Construction signed a contract to perform work on a highway construction project in Hoboken, New Jersey known as the Jackson and Observer job site. Appendix (“App.”) 131. On December 13, 2002, Michael Nirchio signed a collective bargaining agreement with the Union on behalf of Molfetta Industries (the “CBA”). App. 102. The CBA required Molfetta to give the Union the first opportunity to provide laborers for all of its construction jobs in New Jersey. App. 39-40. The CBA applies to work performed by Molfetta Industries “under its own name,” as well as to any work performed
under the name of another entity (whether a corporation, company, partnership, joint venture, or any other business entity) where [Mofietta Industries], including its owners, stockholders, officers, directors, or partners, exercise either directly or indirectly (such as through family members or company employees) any significant degree of ownership, management or control.
App. 85.1 On March 5, 2003, Nirchio executed a short form agreement on behalf of Molfetta Construction, agreeing to bind Molfetta Construction “to all the provisions, terms and conditions of’ the CBA. App. 103.
Notwithstanding these written contractual provisions, Molfetta argues that the Union, through its representative Lou Mosca, agreed to allow Molfetta to operate as a “double-breasted” company, with Mol-fettta Industries operating as a union contractor and Molfetta Construction operating as a non-union contractor. App. 132-33.
Molfetta also argues that during a March 2004 meeting, Mosca solicited a bribe from Nirchio in March 2004, offering to “take care of the problem” involving the Union for $5,000. App. 132-33. On February 6, 2008, Mosca was charged in a federal indictment with honest services mail fraud in violation of 18 U.S.C. §§ 1341, 1346 and 2, and embezzlement of union assets in violation of 29 U.S.C. § 501(e) and 18 U.S.C. § 2.App. 206-07. The indictment charges, inter alia, that “Louis Mosca agreed to accept and accepted a thing of value ... with the intent to be influenced in his decisions” as a Union representative. Id.
In September 2007, the Union submitted a request for arbitration with the New Jersey State Board of Mediation, contending that Molfetta had violated the terms of the CBA by failing to employ Union laborers at the Jackson and Observer job site. The arbitrator held a hearing on January 3, 2008 and issued a written decision on April 11, 2008. The arbitrator acknowledged the arguments raised by Molfetta, but concluded that the CBA completely and unambiguously expressed the terms of the parties’ agreement. App. 122-24. Since the CBA obligates Molfetta to offer the Union the opportunity to supply laborers for construction jobs in New Jersey and Molfetta used non-union labor for the Jackson and Observer job site, the arbitrator awarded the Union $77,356 in lost wages, along with costs and fees. App. 125. On May 20, 2008, Molfetta requested that the arbitrator re-open the hearing to allow a witness to testify concerning the allegation that Mosca had solicited a bribe, but the arbitrator declined this request.
*350On June 4, 2008, the Union petitioned the District Court to confirm the arbitration award, and Molfetta moved to vacate the award or remand the case to the arbitrator for further proceedings. The District Court rejected Molfetta’s arguments that the arbitrator had committed misconduct and that the arbitration award should be vacated as contrary to public policy. By order dated August 18, 2008, 2008 WL 3833460, the District Court granted the Union’s motion to confirm the arbitration award and denied Molfetta’s motion to vacate or remand. Molfetta timely appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
This court’s review of the District Court’s decision is plenary, but both courts’ review of an arbitration award is “exceedingly narrow.” Eichleay Corp. v. Int’l Ass’n of Bridge, Structural, & Ornamental Iron Workers, 944 F.2d 1047, 1056 (3d Cir.1991). “The district court may not vacate an arbitration award merely because it would decide the merits differently.” Id. (citing Tanoma Mining Co. v. Local Union No. 1269, United Mine Workers of America, 896 F.2d 745, 747 (3d Cir.1990)). “So long as the arbitration award has some support in the record, and the arbitrator has not manifestly disregarded the law, we will affirm the award.” Id. (citing Tanoma, 896 F.2d at 748-49).
III.
Molfetta argues that the arbitrator committed misconduct by refusing to reopen the arbitration hearing to permit additional testimony regarding the alleged bribe attempt. See Molfetta Br. 13-15 (citing Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 506 v. E.D. Clapp Corp., 551 F.Supp. 570, 577-78 (N.D.N.Y.1982)). Molfetta sought to introduce testimony from another witness to “corroborate Nirchio’s testimony” regarding the bribe attempt and “impeach Mosca’s credibility regarding his failed recollection of his attempt to bribe Nir-chio....” Id. 15.
A court may vacate a labor arbitration award based on the arbitrator’s “misconduct in ... refusing to hear evidence pertinent and material to the controversy,” 9 U.S.C. § 10(a)(3), but the arbitrator’s “error must be one that is not simply an error of law, but which so affects the rights of a party that ... he was deprived of a fair hearing.” Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.1968).
Molfetta does not argue that it was denied the opportunity to present its case at the initial hearing; rather, Molfetta sought to supplement the evidentiary record after the arbitrator had reached his decision. We agree with the District Court that this is not one of the limited circumstances under which an arbitration proceeding must be reopened. See App. 10 (citing Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 332 (3d Cir. 1991)). Molfetta has not established that the arbitrator’s decision deprived Molfetta of a fair hearing.
IV.
Molfetta also argues that the arbitrator’s evaluation of the evidence should be rejected as “in violation of public policy.” Molfetta Br. 17 (citing Acands, Inc. v. Travelers Cas. and Sur. Co., 435 F.3d 252, 255-60 (3d Cir.2006)). Specifically, Molfet-ta contends that the arbitrator’s failure to “consider the federal indictment as probative of Mosca’s credibility ... is in violation of the [Federal Rules of Evidence] and public policy.” Id. 18.
We have held that “courts may refuse to enforce arbitration awards that *351violate well-defined public policy as embodied by federal law.” Acands, 435 F.3d at 258 (citing Exxon Shipping Co. v. Exxon Seamen’s Union, 11 F.3d 1189 (3d Cir. 1994)). However, the only basis for Mol-fetta’s argument is the contention that the arbitrator erred by misapplying the “statutorily promulgated Federal Rules of Evidence.” Molfetta Br. 17. Of course, the arbitrator was not bound by federal procedural rules, see, e.g., Rosensweig v. Morgan Stanley & Co., Inc., 494 F.3d 1328, 1333 (11th Cir.2007), and Molfetta has not established that enforcing the CBA in this case would violate a “well defined and dominant” public policy. Exxon Shipping, 11 F.3d at 1196. We agree with the District Court that none of the issues raised by Molfetta warrants vacating the arbitration award.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
. The CBA also includes an integration clause, stating that the "relationship of the parties is fully and exclusively set forth by this Agreement and by no other means, oral or written,” App. 27, and an arbitration clause, referring disputes regarding the interpretation of the CBA to the New Jersey State Board of Mediation for final and binding arbitration, App. 88.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Appellant-Petitioner Mahamadou Dara-my appeals the denial of his applications for asylum, withholding of removal, and protection under Article 3 of the UN Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) held that the “law of the case” doctrine precluded Dara-m/s applications because they are “in sum and substance the same applications for relief’ as the ones Daramy previously submitted and which were denied. Additionally, the IJ found Daramy’s applications untimely because they were not filed “within one year after the date of the alien’s arrival in the United States.” The Board of Immigration Appeals (“BIA”) affirmed on both grounds. Daramy filed a timely appeal. We will vacate and remand.1
I.
Daramy is a native and citizen of Sierra Leone. He first arrived in the United States, without inspection or authorization, on or about April 1, 2001. On May 5, 2001, he filed an application for asylum based on race, religion, and nationality; withholding of removal; and protection under CAT. In support of his application, Daramy stated that Revolutionary United Front (“RUF”) rebels attacked his village in 1999, destroyed his family home, shot his parents to death, and took him to a rebel camp, where he was beaten and jailed for refusing to join their cause. Daramy claimed he was freed when the camp was liberated and then traveled to a refugee camp in Guinea, where he spent six months. Dara-my stated that a friend at the camp assisted him in procuring documents and a ticket to come to the United States.
On December 21, 2004, the Department of Homeland Security (“DHS”) served Daramy with a Notice to Appear. The hearing was held before the Immigration *353Court in Seattle, Washington on April 20, 2005, and on November 2, 2005, the IJ denied Daramy’s application. The IJ found Daramy not credible because of “material inconsistencies between [his] testimony and his written statements,” and questioned the authenticity of Daramy’s documents. The IJ also concluded Dara-my’s application was untimely because Daramy did not have a passport and therefore could not prove when he first arrived in the United States. Additionally, the IJ stated that even if Daramy was found credible, the court would deny relief for failure to show that alleged persecution occurred on account of a protected ground: “The respondent testified that he does not know if his family was politically active and he stated no grounds why he or his family was targeted by the rebels other then [sic] to recruit the respondent and his brother into the rebel forces. A recruitment is not a protective ground.” Finally, the IJ noted that country conditions in Sierra Leone had changed since 1999 “to such a material extent that they have rebutted any reasonably [sic] possibility that the respondent would be harmed should he be returned to Sierra Leone.” The IJ also denied CAT protection, finding “no competent credible objective evidence that should the respondent be returned to Sierra Leone,” he would be tortured. Daramy’s request for voluntary departure was also denied because he did not have a valid travel passport.
On November 8, 2005, Daramy filed a motion to reopen and reconsider, arguing that the court made numerous errors in its November 2, 2005 decision. In the alternative, Daramy requested that the court grant him voluntary departure because he had since obtained valid travel documents. On November 29, 2005, the Immigration Court reopened the proceedings and granted Daramy voluntary departure. On the merits, however, the court denied the motion, stating that even if adverse findings regarding Daramy’s credibility were erroneous, the outcome would not change because of the alternative ground for the IJ’s November 2, 2005 decision — material change in country conditions.
On November 30, 2005, Daramy filed a timely appeal with the BIA. During the pendency of the appeal, on or about April 19, 2007, Daramy departed from the United States to Gambia to look for his sister. While he was in Gambia, the BIA affirmed the IJ’s decision, adopting the portions of the IJ’s opinion regarding untimeliness of the asylum application, change in country conditions in Sierra Leone, and lack of evidence for protection under CAT. Dara-my did not file a petition for review with the Court of Appeals for the Ninth Circuit.
On July 8, 2007, Daramy returned to the United States, without inspection or authorization. On July 19, 2007, the DHS served him with a Notice to Appear. At the hearing before the Immigration Court in Newark, New Jersey, on August 2, 2007, Daramy conceded removability. On August 17, 2007, Daramy filed new applications for asylum based on political opinion and membership in a particular social group, withholding of removal, and CAT protection. The factual basis for these applications was the same as that for the applications filed in 2001.
On December 20, 2007, the IJ of the Immigration Court in Newark, New Jersey denied Daramy’s new applications. Finding the applications were “in sum and substance the same applications for relief submitted to the court on April 20, 2005,” the IJ concluded that the law of the case doctrine precluded Daramy from making the same applications for relief. Additionally, the IJ held the applications were untimely because “[w]hile the Respondent ‘last arrived’ in the United States on July 8, 2007 the court finds that the Respondent has in actuality been ‘present’ in the United States since April 2001, except for *354a brief trip to Gambia for the express intention of returning to the United States to reapply for asylum.” Accordingly, the court found “that in determining Respondent[’s] eligibility for asylum, April 2001 and not July 8, 2007, is the date on which RespondentPs] ‘presence’ in the United States commenced.”
Daramy appealed to the BIA, and on April 28, 2008, the BIA adopted and affirmed the IJ’s decision. Specifically the BIA held that “this case involves the litigation of already-disposed-of issues, albeit in new proceedings to remove the same individual,” and “the legal issues decided expressly or by implication in the prior immigration proceedings involving the same individual shall apply under the ‘law of the case’ doctrine in the interests of judicial economy, jurisprudential integrity, and finality in immigration proceedings.” The BIA also adopted the IJ’s “additional finding that the respondent may not now seek asylum as he has failed to file his application within one year of his arrival in the United States,” because his last arrival “followed a temporary departure from the United States rather than a flight from prosecution.”
Daramy filed a timely appeal.2
II.
A.
The BIA affirmed the IJ’s application of the law of the case doctrine to deny relief based on the findings in the initial removal proceedings in 2005. The law of the case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)); see also ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir.2008). “Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997) (quoting 18 Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal Practice and Procedure § 4478, at 788 (1981)); see also Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 856 (3d Cir.1994). Thus, the law of the case doctrine “do[es] not apply between separate actions.” 18B Charles A. Wright, Arthur R. Miller & Edward Cooper, Federal Practice and Procedure § 4478, at 638-39 (2d ed.2002); see also Soc’y of Separationists, Inc. v. Herman, 939 F.2d 1207, 1214 (5th Cir. 1991) (“[The prior case] and the case before us are altogether separate proceedings, so law of the case is inapplicable.”); Harbor Ins. Co. v. Essman, 918 F.2d 734, 738 (8th Cir.1990).
*355The law of the case doctrine is inappo-site to this case because the removal proceedings in question, initiated with service of a Notice to Appear on July 19, 2007 and held in Newark, New Jersey, are separate from the removal proceedings previously initiated with service of a Notice to Appear on December 21, 2004 and held in Seattle, Washington. The IJ applied the law of the case doctrine based on Daramy’s concession “that his applications for relief submitted to this court on August 17, 2007 are in sum and substance the same applications for relief submitted to the court on April 20, 2005.” The BIA correctly noted that “this case involves the litigation of already-disposed-of issues, albeit in new proceedings to remove the same individual.” But its legal conclusion that “[i]n such a situation, the legal issues decided expressly or by implication in the prior immigration proceedings involving the same individual shall apply under the ‘law of the case’ doctrine’ ” was erroneous because the law of the ease doctrine does not apply to separate actions.
The IJ and BIA relied on legal authorities applying the law of the case doctrine in the same case, not separate cases. In In re S-Y-G-, 24 I. & N. Dec. 247, 250 (BIA 2007), the BIA held that the IJ’s adverse credibility determination, which was affirmed by the BIA and not appealed to the Court of Appeals, remained the law of the case on remand from a subsequent appeal on a separate issue. Therefore, In re S-Y-G- involved the same removal proceedings. The BIA also cited In re City of Phila. Litig., 158 F.3d 711 (Sd Cir.1998), where we stated that “[u]nder the law of the ease doctrine, one panel of an appellate court generally will not consider questions that another panel has decided on a prior appeal in the same case.” Id. at 717. Finally, the Operating Policy and Procedure Memorandum 01-02-Changes of Venue,3 from the Office of the Chief Immigration Judge, instructs immigration judges to follow the law of the case doctrine in cases where venue is changed. Here, no change of venue took place — the removal proceedings in Newark, New Jersey were separate from those in Seattle, Washington. The IJ and the BIA erred in applying the law of the case doctrine here because the doctrine is inapplicable in the context of separate proceedings.4
*356B.
The BIA also affirmed the IJ’s “additional finding that the respondent may not now seek asylum as he has failed to file his application within one year of his arrival in the United States.”5 Asylum cannot be granted “unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). “The 1-year period shall be calculated from the date of the alien’s last arrival in the United States or April 1, 1997, whichever is later.” 8 C.F.R. § 1208.4(a)(2)(ii) (2009). The term “last arrival” is not defined by statute or its implementing regulations.
The IJ relied on Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir.2006), where the Court of Appeals for the Second Circuit held that “the term ‘last arrival in the United States’ should not be read to include an alien’s return to the United States after a brief trip abroad pursuant to a parole explicitly permitted by United States immigration authorities.” Id. at 179. Notably, the Court of Appeals for the Second Circuit did not have the benefit of the BIA’s interpretation of this provision. Id. at 178 (“When, however, as is the case before us, the BIA summarily affirms a decision of an immigration judge, we do not extend [ ] deference to the IJ’s statutory interpretations.” (internal citations omitted)). Instead, the court noted that “in other contexts ‘last arrival [in] the United States’ has been taken to exclude returns from temporary departures from the country.” Id. at 179. Further, the court concluded its interpretation “best accords with the purpose of the statute as a whole.” Id. Specifically, the court observed that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, which added the 1-year deadline to the Immigration and Nationality Act (“INA”), aimed to address “the abuse of humanitarian provisions such as asylum.” Id. at 180 (quoting S.Rep. No. 104-249, at 3 (1996)). Accordingly, the court concluded that “[permitting applicants to reset the asylum clock by taking a short excursion abroad would undermine the one-year deadline’s clear purpose of focusing the asylum process on those who have recently fled persecution in their home countries.” Id.
Although the IJ in this case relied on the reasoning of Joaquin-Porras, and the BIA affirmed, a subsequent decision by the BIA in In re F-P-R- 24 I. & N. Dec. 681 (BIA 2008), adopted an opposite viewpoint and rejected Joaquin-Porras’s interpretation. The relevant facts of In re FP-R- are similar to this case. The petitioner, a native and citizen of Mexico, initially arrived in the United States in 1983 without inspection. Later that year, he *357returned to Mexico where he stayed until returning to the United States without inspection in 1989. He remained in the United States without lawful status until he returned to Mexico on June 17, 2005, to attend a funeral. He then returned to the United States on July 20, 2005, when he was apprehended and placed in removal proceedings. The petitioner conceded re-movability and filed an application for asylum. Id. at 681-82. The IJ found the petitioner “ineligible for asylum as a result of his failure to file ... within 1 year of his ‘last arrival’ in the United States,” adopting the rationale of Joaquin-Porras to calculate the petitioner’s “1-year period of eligibility to apply for asylum from his second arrival in the United States in 1989 instead of his most recent coming to this country on July 20, 2005.” Id. at 682.
The BIA sustained the appeal, giving the term “last arrival” its ordinary meaning of the “alien’s most recent coming or crossing into the United States after having traveled from somewhere outside of the country.” Id. at 688. The BIA also held that under 8 C.F.R. § 1208.4(a)(2)(ii) (2008), “the identification and use of the date of the alien’s last arrival in the United States for purposes of calculating the 1-year filing period is mandatory, not discretionary or conditional.” Id. at 684. Therefore, it concluded that the IJ erred in calculating a 1-year filing period on the basis of the prior arrival date. Id.
In reaching its holding, the BIA explicitly rejected the reasoning of Joaquin-Por-ras. See id. (“We disagree with Joaquin-Porras in that we discern no basis for construing the regulation as not taking into account entries that occurred after brief absences from the United States.”). The BIA observed that the IIRIRA’s “legislative history provides no direct insight into the Attorney General’s intent in promulgating the clear regulatory text through which he implemented his delegated authority to administer, interpret, and enforce the 1-year filing period.” Id. at 685. The BIA recognized that “the literal construction of the term ‘last arrival’ may have the potential to permit certain aliens to defeat the purpose of the 1-year asylum filing deadline by making a brief trip abroad for the sole or principal purpose of evading the time bar and resuscitating the ability to seek asylum.” Id. Because it was not disputed in that case that the petitioner’s trip was for a legitimate purpose, the BIA did not “examine whether the regulation should be read to embody an implicit exception in a case where it is found that an alien’s trip abroad was solely or principally intended to overcome the 1-year time bar.” Id.
We must accord deference to the BIA’s interpretation of the one-year deadline provision in 8 U.S.C. § 1158(a)(2)(B) and corresponding implementing regulation, 8 C.F.R. § 1208.4(a)(2)(h). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (holding that “principles of Chevron deference are applicable” in the immigration context and emphasizing that “judicial deference to the Executive Branch is especially appropriate in the immigration context”); see also Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.2005) (stating we “will afford Chevron deference to the BIA’s reasonable interpretations of statutes with which it is charged with administering” (internal citations omitted)). Because Congress did not define the term “the date of the alien’s arrival” in 8 U.S.C. § 1158(a)(2)(B), “the agency’s interpretation is given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute.” United States v. Geiser, 527 F.3d 288, 292 (3d Cir.2008) (internal quotations omitted). Further, “an agency’s interpretation of its own regulation[ ] is ‘controlling unless plainly erroneous or inconsistent with the regula*358tion.’ ” Star Enter. v. EPA, 235 F.3d 139, 147 (3d Cir.2000) (quoting Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).
In re F-P-R- is the BIA’s controlling precedent interpreting 8 U.S.C. § 1158(a)(2)(B) as implemented by 8 C.F.R. § 1208.4(a)(2)(ii). The BIA’s interpretation is not plainly erroneous or inconsistent with the statute or regulations; it employed a sound plain meaning canon of construction. See Bonneville Int’l. Corp. v. Peters, 347 F.3d 485, 491 (3d Cir.2003) (“We begin the process of statutory interpretation with the plain meaning of the statute — we must first consider the text.” (internal citation omitted)); cf. Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 152-53 (3d Cir.2004) (“[A]n agency’s interpretation of its own regulations is not entitled to substantial deference by a reviewing court where an alternative reading is compelled by the regulation’s plain meaning .... ” (internal quotation marks omitted)).
Under In re F-P-R-, Daramy’s asylum application might not be barred by the 1-year deadline. Like the petitioner in In re F-P-R-, Daramy applied for asylum shortly after arriving in the United States, albeit following prior presence in the country. The IJ’s application of a one-year bar is inconsistent with the BIA’s current interpretation and must be reexamined. On remand, the BIA can consider whether Daramy’s application is barred under its current interpretation of 8 U.S.C. § 1158(a)(2)(B), as implemented by 8 C.F.R. § 1208.4(a)(2)(h), and remand to the Immigration Court for further development of the factual record if required.
III.
For the reasons set forth above, we will vacate the decision of the BIA and remand to the BIA for proceedings consistent with this opinion.
. The BIA had jurisdiction over this matter under 8 C.F.R. § 1003.1(b)(3), which grants it appellate jurisdiction over decisions of immigration judges in removal cases. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252. Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). Removal proceedings occurred in Newark, New Jersey, and venue is therefore proper under 8 U.S.C. § 1252(b)(2).
. Where "the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We exercise plenary review over an agency’s legal determinations, "subject to the principles of deference articulated in Chevron v. Natural Resources Defense Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir.2008) (citing Briseno-Flores, 492 F.3d at 228 (3d Cir.2007) and Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004)). We must uphold the factual findings if they were "supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) ("Under the substantial evidence standard, [the agency’s factual findings] must be upheld unless the evidence not only supports a contrary conclusion, but compels it.”).
. Available at http://www.justice.gov/eoir/ efoia/ocij/oppmOl/OPPMO l-02.pdf.
. Our holding need not disturb the BIA’s asserted "interests of judicial economy, jurisprudential integrity, and finality in immigration proceedings.” Traditional res judicata principles have been applied in immigration proceedings. See, e.g., Duvall v. Att’y Gen., 436 F.3d 382, 386-90 (3d Cir.2006); Medina v. INS, 993 F.2d 499, 503-04 (5th Cir.1993); Ramon-Sepulveda v. INS, 824 F.2d 749, 750 (9th Cir. 1987); Matter of Fedorenko, 19 I. & N. Dec. 57, 61-67 (BIA 1984); see also Restatement (Second) of Judgments § 83. But although "[t]he doctrine of law of the case is similar to the issue preclusion prong of res judicata in that it limits relitigation of an issue once it has been decided," the doctrines are distinct. Rezzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir.1999). "[L]aw of the case is concerned with the extent to which law applied in a decision at one stage of litigation becomes the governing principle in later stages of the same litigation. Res judi-cata does not speak to direct attacks in the same case, but rather has application in subsequent actions.” Id. But we will not apply res judicata rules in the first instance. See Konan v. Att'y Gen., 432 F.3d 497, 501 (3d Cir.2005) ("[A] reviewing court is powerless to decide in the first instance issues that an agency does not reach.”); see also INS v. Ventura, 537 U.S. 12, 18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The BIA can consider those principles in the first instance, and remand to the Immigration Court to further develop the factual record as might be necessary. The BIA may also wish to consider in the first instance whether the statutory bar under 8 U.S.C. § 1158(a)(2)(C) applies to Daramy’s second asylum application. We express no opinion on the merits of these issues or whether they have been preserved.
. We generally do not have jurisdiction to review the Attorney General’s determinations regarding the one-year deadline provided in 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).”). However, we have jurisdiction to review any "constitutional claims or questions of law” raised in a petition for review, notwithstanding "any other provision of this chapter ... which limits or eliminates judicial review.” 8 U.S.C. § 1252(a)(2)(D). The proper interpretation of the 1-year deadline in 8 U.S.C. § 1158(a)(2)(B) is a question of law over which we have jurisdiction. See Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir.2006); see also Khunaverdiants v. Mukasey, 548 F.3d 760, 765-66 (9th Cir.2008); Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006) (“As the government concedes, the proper interpretation of the one-year deadline provision of 8 U.S.C. § 1158(a)(2) is a question of law over which we have jurisdiction under the REAL ID Act.”).
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*365OPINION OF THE COURT
CHAGARES, Circuit Judge.
Kevin Knox appeals from a District Court order affirming the denial of Disability Insurance Benefits and Supplemental Security Income under the Social Security Act by the Commissioner of Social Security (the “Commissioner”). We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly summarize the essential facts. On June 3, 2003, Knox filed an application for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act, alleging disability since March 16, 2002 due to HIV and pulmonary hypertension. The Commissioner denied his claims, both initially and upon reconsideration. Knox requested a hearing before an administrative law judge (“ALJ”), which was held on December 7, 2006. In a decision issued February 9, 2007, the ALJ found that Knox was not disabled for purposes of receiving Social Security benefits. The Appeals Council denied review, making the ALJ’s February 9, 2007 decision the final decision of the Commissioner. On December 21, 2007, Knox filed a complaint in District Court challenging the denial. The District Court found that the Commissioner’s decision was supported by substantial evidence. By order entered December 9, 2008, 2008 WL 5156672, the District Court dismissed the action. Knox timely appealed.
II.
The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction to review the District Court’s decision under 28 U.S.C. § 1291. Our review is limited to determining whether substantial evidence supports the ALJ’s finding that Knox was not disabled. 42 U.S.C. §§ 405(g), 1383(c); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). “‘Substantial evidence’ has been defined as ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)).
III.
The Social Security Act authorizes the Commissioner to pay social security benefits to disabled persons. 42 U.S.C. §§ 423(d), 1382. Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is not disabled unless “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
The Commissioner applies a five-step test to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first two steps require the claimant to demonstrate that he is not currently engaging in substantial gainful activity, and that he is suffering from a severe impairment. Id. If the claimant progresses to step three, then the question becomes “ ‘whether the impairment is equivalent to one of a number of Listed Impairments [articulated in 20 C.F.R. Pt. 404, Subpt. P, App. 1] that the Commissioner acknowledges are so severe as to *366preclude substantial gainful activity.’ ” Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (quoting Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)); see also 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s specific impairment is not a Listed Impairment, the ALJ must consider whether the claimant’s impairment or combination of impairments is “medically equivalent” to a Listed Impairment. See 20 C.F.R. § 404.1526(a). An impairment or combination of impairments is “medically equivalent” to a Listed Impairment if it is “at least equal in severity and duration to the criteria of any [LJisted [I]mpairment.” Id. In other words, the claimant’s impairment “ ‘must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.’ ” Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir.1992) (quoting Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). A claimant who satisfies step three “is conclusively presumed to be disabled.” Knepp, 204 F.3d at 84 (citation and quotation marks omitted). A claimant who fails at step three must continue to steps four and five.
At step four, the question is “whether the claimant retains the residual functional capacity to perform [his] past relevant work.” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). It is the claimant’s burden to establish an inability to return to his past relevant work. See id. If the claimant satisfies this burden, then the burden of production shifts to the Commissioner to show, at step five, that “there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with her medical impairments, age, education, past work experience, and residual functional capacity.” Plummer, 186 F.3d at 428. This step requires the ALJ to consider the claimant’s residual functional capacity, age, education, and past work experience to determine whether the cumulative effect of all of the claimant’s impairments renders him capable of working. See 20 C.F.R. § 404.1520(g).
IV.
On appeal, Knox argues that the ALJ’s decision is not supported by substantial evidence. Knox argues specifically that the ALJ erred: at step three by failing to find that his conditions met the Listed Impairments; at step four by improperly evaluating the medical evidence; and at step five by posing an inadequate hypothetical to the vocational expert. We agree with the District Court that none of these arguments has merit.
A.
Knox argues that the ALJ erred at step three by failing to find that Knox’s conditions met, individually or in combination, one of the Listed Impairments, specifically 1.04 for “Disorders of the Spine” and 12.06 for “Anxiety related disorders.” For both of these Listed Impairments, the ALJ recognized that aggravating factors must be present for the condition to meet the requirements of the Listings. For Listing 12.06, the ALJ concluded that Knox’s “alleged anxiety related disorder (panic disorder with partial agoraphobia) is not accompanied by a ‘marked’ restriction of the activities of daily living, or ‘marked’ difficulties in maintaining social functioning, or ‘marked’ difficulties in maintaining concentration, or ‘repeated’ episodes of decompensation, or the complete inability to function independently outside the area of his home.” Appendix (“App.”) 16-17 (citations omitted). Knox argues that he suffers from a panic disorder with agoraphobia and phobias of elevators, Knox Br. 50, but the ALJ concluded that the medical evidence did not support Knox’s assertion *367that his condition was sufficiently debilitating within the meaning of the Listings. The ALJ’s determination is supported by substantial evidence.
With respect to Listing 4.04, the ALJ found that Knox’s “musculoskeletal disorders of the cervical and lumbar spine have not resulted in compromise of a nerve root with evidence of nerve root compression characterized [by] neuro-anatomie distribution of pain, marked limitation of motion of the spine, motor loss, [or] sensory or reflex loss.” App. 17. Knox cannot demonstrate his claimed spine disorders were sufficiently aggravated to meet the definition supplied by the regulations. The evidence of “mild bilateral median nerve entrapment neruopathy [sic] (carpal tunnel syndrome) affecting sensory components,” Certified Administrative Record (“Tr.”) 422, reduced range of motion in the neck and lower back, Tr. 251, and “limitations due to osteoarthritis and neuropathy,” Tr. 271, does not compel a conclusion that Knox meets the requirements of the Listings. The ALJ’s evaluation of this Listed Impairment is supported by substantial evidence.
B.
Knox raises two challenges to the ALJ’s determination at step four. First, Knox argues that the ALJ improperly evaluated the medical evidence, contending that the ALJ “failed to give proper credence to the complaints of Mr. Knox concerning his pain, limitation of motion and function, weakness, ... numbness, shortness of breath, headaches, dizziness and fatigue, mental impairments including anxiety, panic attacks, phobias and depression, and cardiac condition and chest pains.” Knox Br. 31-32 (citations omitted). If the medical evidence suggests a claimant “has an impairment which is reasonably expected to produce some pain, [the ALJ] must consider all of the evidence relevant to the individual’s allegations of pain, even if the alleged pain is more severe or persistent than would be expected.” Sykes v. Apfel, 228 F.3d 259, 266 n. 9 (3d Cir.2000) (citations omitted). The ALJ “must explicitly weigh the evidence and explain a rejection of the evidence.” Id. (citations omitted).
In this case, the ALJ explained in detail the reasons for partially discrediting Knox’s testimony regarding his claimed chest pain, diarrhea, weakness, fatigue, neck, low back and bilateral knee pain. See App. 18-19. Specifically, the ALJ found the scope of Knox’s claimed impairments to be inconsistent with his choice of pain medication, the lack of frequent inpatient admissions, emergency room visits, or protracted physical therapy, and the clinical findings regarding his claimed impairments. App. 18. The ALJ also explained the inconsistencies in Knox’s testimony regarding his claimed psychiatric conditions that led him to discount this testimony. See App. 19-20. We agree with the District Court that the ALJ’s evaluation of the medical evidence in arriving at the residual functional capacity assessment, including the evaluation of Knox’s subjective complaints, was supported by substantial evidence.
Knox further argues that the ALJ erred in improperly relying “on an unsupported opinion of a non examining doctor, Dr. Fechner, based on a misinterpretation of the record” to “supplant the medical opinion of a treating physician.” Knox Br. 56-57. Knox correctly points out that the reports of treating physicians are to be afforded “great weight,” id. 57 (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.2000)), but Knox mischaracterizes the ALJ’s assessment. The ALJ cited Dr. Fechner’s testimony that Knox could perform light work, see App. 20, but the residual functional capacity assessment did not ignore the other medical evidence cited in Knox’s brief. The ALJ discussed the re-
*368ports from each of Knox’s treating physicians, Dr. Mangia, Dr. Dungo, and Dr. Hriso, see App. 17, and discussed their opinions — along with the objective medical evidence — in detail. See App. 17-18. He concluded that Knox’s HIV infection has been largely asymptomatic, based on Dr. Mangia’s questionnaire. App. 17. He further noted that Knox’s CD-4 count has been high, his viral load relatively low, and that Knox has not exhibited secondary complications that often arise from more debilitating HIV infections. App. 18. The ALJ concluded that Knox’s pulmonary hypertension was not aggravated by any “significant secondary complications or target end-organ damage,” based on the numerous diagnostic imaging results in the record. App. 17-18. The ALJ found that Knox’s orthopedic impairments did not result in debilitating pain or limitation in function, based on several imaging studies. App. 18. The ALJ evaluated the evidence regarding Knox’s mental impairments and concluded that they would impose only limited restrictions on his possible working environments. App. 19. The ALJ discounted the “check-list” questionnaire prepared by Dr. Hriso, see Tr. 482-84, because these conclusions “are not supported by objective narrative mental status findings of any specificity.” App. 19; accord App. 20 (discounting this check-list form because Dr. Hriso “essentially checked off every non-exertional limitation on the form, even some that were not alleged”). The ALJ’s residual functional capacity assessment is explained in detail and supported by substantial evidence.
C.
Knox’s final argument is that the ALJ erred at step five by relying on a hypothetical posed to the vocational expert that failed to account for his “limitations as to the need to avoid wetness, fumes, gases, temperature extremes, heights, inability to push, pull, kneel, bend or stoop” based on Knox’s “pulmonary and bilateral knee impairments.” Knox Br. 59-60 (citing Tr. 489-96). However, an ALJ is not required “to submit to the vocational expert every impairment alleged by a claimaint.” Rutherford, 399 F.3d at 554 (emphasis in original). Rather, “the hypothetical posed must accurately portray the claimant’s impairments and ... the expert must be given an opportunity to evaluate those impairments as contained in the record.” Id. (quotation marks omitted). In other words, “the ALJ must accurately convey to the vocational expert all of a claimant’s credibly established limitations.” Id. (emphasis in original) (citation omitted). Here, the ALJ posed a hypothetical that mirrored Knox’s functional limitations that the ALJ determined had been established by the medical evidence. Compare Tr. 593-94 (hypothetical posed to vocational expert) with App. 19 (ALJ’s residual functional capacity assessment); accord App. 21 (explaining that Knox’s other proposed limitations “were totally lacking in credibility”). We agree with the District Court that the ALJ incorporated the credibly established limitations in the hypothetical, leading the ALJ to conclude that Knox could perform work existing in significant numbers in the national economy. The ALJ’s determination that Knox was not disabled for purposes of receiving Disability Insurance Benefits and Supplemental Security Income under the Social Security Act is supported by substantial evidence.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.
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OPINION
BARRY, Circuit Judge.
This appeal involves the District Court’s factual finding that Kane Builders, Inc. (“Kane Builders”),1 a Pennsylvania construction company, entered into a June 2000 collective bargaining agreement (“CBA”) with Southern New Jersey Building Laborers District Counsel, LIUNA (the “Union”). The Court made the finding after hearing testimony related to Kane Builders’s motion for a preliminary injunction to enjoin the arbitration sought by the Union. The issue before us is whether the Court erred in treating that finding as a final determination on the *370merits, which led to judgments against Kane Builders, and in favor of the Union, the New Jersey Building Laborers Statewide Benefits Funds and Trustees of the New Jersey Building Laborers Statewide Benefits Funds (collectively, the “Funds”), and Louis Mosca, a Union representative and third-party defendant.
In June 2000, Mosca approached Mark Spencer, a Kane Builders construction supervisor, at one of Kane Builders’s New Jersey construction sites, and asked whether Kane Builders would hire union workers for the project. Spencer told Mosca that he lacked authority to hire union workers, and referred Mosca to Kane Builders’s founder, Stephen Kane. Mosca spoke to Kane and, the District Court found, Kane told Mosca that he would authorize Spencer to enter into the CBA on behalf of Kane Builders, a finding that is hotly disputed. Kane then spoke to Spencer by telephone and, thereafter, the Court found, Mosca presented Spencer with a 58-page CBA, which Spencer signed, a finding that, again, is disputed.
The CBA provided, inter alia, that Kane Builders would hire Union workers for its New Jersey projects and make benefits payments on behalf of the Union workers to the New Jersey Building Laborers Statewide Benefit Funds. In May 2004, the Union discovered that Kane Builders was managing a construction project in Ocean Township, New Jersey (the “Ocean Project”), but had not hired any Union workers. The Union filed a demand for arbitration against Kane Builders on May 21, 2004. Thereafter, Kane Builders attempted to enjoin the arbitration by bringing a June 30, 2004 action in the District Court (“Kane I ”)2 for declaratory and injunctive relief against the Union,3 claiming that Kane Builders never entered into the CBA. On November 23, 2004, the Court held a hearing to decide the preliminary injunction (the “Hearing”), and issued the pertinent factual findings on December 6, 2004. The Court found that Kane was a signatory to the CBA and refused to enjoin the arbitration. Instead, the Court ordered Kane Builders to proceed with arbitration, even though the Union had not moved to compel the same.
On February 25, 2005, the Funds brought an action (“Kane II”)4 against Kane Builders for unpaid contributions to certain benefits plans which were allegedly third-party beneficiaries of the CBA. The Court consolidated Kane I and Kane II on March 5, 2005.
On July 27, 2005, Kane Builders filed a third-party complaint against the Union and Mosca, alleging that, “to the extent that Kane is found to have been a party to the CBA and liable to the Funds for benefit contributions, the Union and its agent, Mosca, are liable over to it for various reasons arising out of the events of June 2000.” (Kane Builders Br. at 28.) Kane Builders alleged that it was induced to enter the CBA by fraud, and, in particular, that Mosca deceived Spencer by presenting him only with the signature page of the CBA and telling “Mr. Spencer that he was only being asked to sign payroll documents for the single laborer and not a collective bargaining agreement.” (Kane Builders Br. at 30.)
*371After the January 12, 2007 arbitration hearing (which Kane Builders did not attend or participate in), the arbitrator issued an award of $53,558 in favor of the Union. On August 21, 2007, 2007 WL 2416470, the District Court issued an opinion confirming the arbitration award (disposing of the Kane I issues), and entered summary judgment against Kane Builders, in favor of the Funds, on both liability and damages in the amount of $2,071,366.43 (disposing of the Kane II issues). The judgments in Kane I and Kane II could not have been entered without adopting the hotly disputed factual findings at issue in this appeal.5
The District Court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. § 185(a). We have jurisdiction under 28 U.S.C. § 1291. “When reviewing a district court’s order confirming an arbitration award, we review the district court’s findings of fact for clear error and its legal conclusions de novo.” Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 513, 521 (3d Cir.2009).
Kane Builders argues that the District Court provided inadequate notice of its intention to treat the preliminary injunction hearing as a final trial on the merits. Rule 65(a)(2) of the Federal Rules of Civil Procedure, provides in pertinent part, that “[bjefore or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application ...” However, “a district court should not consolidate a hearing for preliminary relief with a trial on the merits unless the court has given both parties clear and unambiguous notice of its intent to do so.” Anderson v. Davi-la, 125 F.3d 148, 157 (3d Cir.1997) (internal quotations omitted).
Here, the District Court did not provide any notice of its intention to combine the hearing for preliminary relief with a trial on the merits. Indeed, even after the Court issued its findings and denied the preliminary injunction, the case appeared to be headed for trial.6 As counsel for Kane Builders points out, “the proceedings which continued in the District Court after December 2004 were those prefatory to the ultimate trial on the merits ... What else could they have been?” (Kane Builders Br. at 32.) The Court erred by failing to provide notice to Kane Builders that it would not have the opportunity, which it reasonably expected, to further develop its case.
Because we find that the District Court erred in providing inadequate notice of its intention to combine the preliminary injunction hearing with a final trial on the merits, we do not reach another important question: whether the Court’s factual findings were clearly erroneous.7
*372
IV. Conclusion
We will vacate the Judgments dated August 20, 2007 and September 21, 2007, and remand for further proceedings not inconsistent with this Opinion.8
. Kane Builders is a construction company, founded, owned and operated by Stephen Kane of Glenside, Pennsylvania.
. Kane Builders Inc. v. S. N.J. Building Laborers’ Dist. Council, LIUNA, AFL-CIO, 04-3315, 2004 WL 3647203 (D.N.J. filed June 30, 2004).
. Kane Builders sought declaratory relief that it had not entered into the CBA with the Union, and injunctive relief temporarily and permanently enjoining the arbitration which the Union had commenced.
.N.I. Bldg. Laborers Statewide Benefits Funds, The Trustees of the N.J. Bldg. Laborers Statewide Benefits Funds v. Kane Builders, Inc., 05-1137 (D.N.J. filed February 25, 2005).
. It appears that no formal judgment was entered against Kane Builders in favor of Mosca and the Union with respect to Kane Builder’s third-party complaint, but the Court apparently determined that those claims, which also necessarily depended upon the findings made following the preliminary injunction hearing, had been resolved when it administratively terminated the case on August 21, 2007.
. The parties attended a pretrial conference on November 11, 2004 before Magistrate Judge Mark Falk where they agreed to appear for a status conference on December 15, 2004 and to complete discovery by February 8, 2005. The District Court issued a pre-trial scheduling order on January 12, 2007, and the parties submitted trial briefs in February 2007.
.That having been said, we note that Kane, whose company had never entered into a collective bargaining agreement, was at no time given a copy of the purported agreement nor even given a copy to read.
. In deciding this case, we do not rely on the information that surfaced during oral argument about Mosca, the Union’s key witness at the preliminary injunction hearing, who was charged with, and pleaded guilty to, fraud as part of a case brought in the Eastern District of New York against the Gambino crime family. See United States v. Agate, et al., No. OS-76 (E.D.N.Y.). Although we are technically remanding "for further proceedings,” we fully recognize the significance of this new development given the critical importance of Mos-ca to the Union's case and the Funds’ claim for benefits.
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OPINION
PER CURIAM.
Enriqueta B. Agcaoili appeals pro se from the order of the District Court dismissing her claims against Richard Thayer for lack of subject matter jurisdiction and entering summary judgment in favor of William Stanley. For the following reasons, we will affirm.
I.
Agcaoili was injured in 1995, retained Stanley (a lawyer) to file an application for Social Security benefits on her behalf, and received a fully favorable decision from an Administrative Law Judge in 1997. In 2008, she filed the complaint at issue here against Stanley and Thayer, a District Manager of the Social Security Administration (“SSA”). Agcaoili’s complaint is difficult to follow, but she alleges that her Social Security benefits have been improperly calculated and that she never received certain payments that the SSA claims to have made to her. She also alleges that Stanley coerced her into signing a fee agreement in 1995 and that he conspired with the SSA to reduce payments to her in order to receive his fee. Agcaoili purport*374ed to bring suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the Social Security Act, 42 U.S.C. § 405(g), and the Privacy Act, 5 U.S.C. § 552a(g)(5). She described her “causes of action” as “Fraud; harassment; conspiracy; retaliation, manipulation and falsification of records; obstruction of justice; discrimination; intentional infliction of physical, mental/emotional distress.” (Compl. at 2.) The only relief she sought was the payment of proper Social Security benefits plus interest, as well as damages for pain and suffering.
Stanley filed a motion for summary judgment, and Thayer filed a motion to dismiss for lack of subject matter jurisdiction or in the alternative for summary judgment. Agcaoili then sought leave to amend her complaint, which the District Court denied. By order entered April 30, 2009, the District Court dismissed Agcaoi-li’s claims against Thayer and granted summary judgment in favor of Stanley. Agcaoili appeals.1
II.
We will affirm substantially for the reasons stated by the District Court. Regarding Thayer, the District Court properly explained that Agcaoili alleged no conduct by Thayer individually and construed
her claims as claims against him in his official capacity — i.e., as claims against the United States. Whether construed as claims against Thayer individually or against the United States, however, they are barred as a matter of law. As the District Court explained, Agcaoili’s exclusive means of challenging the calculation and payment of her Social Security benefits lies under 42 U.S.C. § 405(g). Judicial review under that statute, however, “is barred absent a ‘final decision’ by the Commissioner of Social Security.” Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir.1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). There is no such decision here. An Administrative Law Judge issued a decision fully favorable to Agcaoili in 1997, but she is not challenging that decision (and any such challenge would be untimely, see 42 U.S.C. § 405(g)). Instead, she challenges the subsequent calculation and payment of her Social Security benefits. As the District Court explained, Agcaoili must complete the administrative review process before seeking judicial review of those issues.2
As the District Court further explained, all other potential claims against Thayer are barred by 42 U.S.C. § 405(h). That statute provides that “[n]o action against
*375the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 133 or 1346 of Title 28 to recover on any claim arising under” Subchapter II of the Social Security Act, which provides for the payment of Social Security benefits. 42 U.S.C. § 405(h). See Weinberger v. Salfi, 422 U.S. 749, 760-61, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Fanning v. United States, 346 F.3d 386, 392-95 (3d Cir.2003). The Supreme Court has broadly construed this provision to bar claims, even if they might be said to arise under other laws as well, when the plaintiff seeks to recover Social Security benefits and the Social Security Act “provides both the standing and the substantive basis” for the claims. Weinberger, 422 U.S. at 760-61, 95 S.Ct. 2457. See also Schweiker v. Chilicky, 487 U.S. 412, 424, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (refusing to imply cause of action “for remedies in money damages against [Social Security] officials responsible for unconstitutional conduct that leads to the wrongful denial of benefits”). In this case, because all of Agcaoili’s claims against Thayer “aris[e] under” the Social Security Act, the District Court lacked jurisdiction to consider them.3
With regard to Stanley, the District Court liberally construed Agcaoili’s allegations to state a number of claims under state and/or federal law. The District Court correctly concluded that New Jersey’s two-year limitations period for personal injury claims applies to Agcaoili’s claims for harassment, intentional infliction of emotional distress, discrimination, retaliation, conspiracy, and obstruction of justice. See N.J. Stat. 2A:14-2; Roa v. Roa, 402 N.J.Super. 529, 955 A.2d 930, 935 (N.J.Super.Ct.App.Div.2008) (applying the two-year personal injury limitations period to claims under New Jersey’s anti-discrimination law); see also Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir.1989) (New Jersey’s two-year limitations period for personal injury actions applies to civil rights claims under 42 U.S.C. § 1983 and § 1985). Because each of these claims arose out of Stanley’s representation of Agcaoili from 1995 to 1997, we agree with the Court that these claims are time-barred.
The District Court also correctly concluded that Agcaoili’s claim for fraud is time-barred. See N.J. Stat. 2A:14-2 (six-year limitations period applies to common law fraud claims). Although Agcaoili appears to argue that her claim did not accrue until May 2006, when she allegedly first learned that Stanley had received a fee payment from the SSA, we agree with the Court that Agcaoili’s assertion is contradicted by the record. In this case, Agcaoili alleges that she signed a fee agreement with Stanley in 1995, apparently under duress, and that Stanley collected $2,792.50 toward the fee in 1997. She attached to her complaint what appears to be a 2006 print-out of her 1997 Form SSA-1090 Social Security Statement showing that the SSA notified her of its payment to Stanley in 1997. In addition, Stanley submitted two 1997 letters from the SSA notifying Agcaoili that it had withheld $2,792.50 to pay Stanley (Appellees’ Appx. at 132-40), two 1997 letters from Stanley himself to Agcaoili explaining his receipt of the fee (id. at 142-43, 148), and a 1997 letter from Agcaoili acknowledging receipt of one of those letters (id. at 145-46). *376Agcaoili does not dispute any of this evidence, and it clearly shows that she was aware of all material facts relevant to her fraud claim over ten years before filing her complaint.
We also agree that Agcaoili’s claim for “manipulation and falsification of records” is time-barred. Agcaoili appears to allege that the Fee Agreement was falsified because it bears the date of December 13, 1995 (the date on which it was executed), rather than the “accident date.” The District Court correctly noted that while forgery is a crime under New Jersey law, N.J. Stat. 2C:21-1, there is no express private right of action for forgery under New Jersey law. In any event, assuming arguendo that such a cause of action exists, Agcaoili’s claim is nonetheless time-barred, regardless whether the two-year or six-year limitations period applies.
Finally, the District Court did not abuse its discretion in denying Agcaoili leave to amend. Agcaoili’s proposed amended complaint included no new material allegations, and sought only to add as defendants various employees of the SSA, as well as Treasury Secretary Timothy Geith-ner. The proposed amended complaint does not state any cognizable claims against these individuals.
Accordingly, we will affirm the judgment of the District Court. Agcaoili’s motions to stay this appeal, “preclude” Stanley’s counsel, “separate appellees” and “amend to criminal actions” are denied.
. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s entry of summary judgment, see Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.2009), and dismissal for lack of subject matter jurisdiction, see USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 198-99 (3d Cir.2003). We review the denial of leave to amend a complaint for abuse of discretion. See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir.2008). We may affirm on any grounds supported by the record. See Torretti, 580 F.3d at 172.
. Agcaoili's complaint references what she calls "appeals” that she filed with the "Pay Center” in 1996, which she alleges have "stayed at the Pay Center, without any result.” (Compl. at 15.) The District Court thoroughly set forth the SSA's administrative exhaustion requirements, and submission of an "appeal” to a "Pay Center” does not satisfy them. See 20 C.F.R. §§ 404.902, 404.907, 404.967-68 & 404.981. Moreover, Agcaoili has not requested any injunctive or other relief in connection with these purported appeals. See Fitzgerald, 148 F.3d at 235. In addition, Thayer submitted an unrebutted declaration from an SSA Director stating that the SSA has no record of Agcaoili having filed an administrative claim regarding the allegations in her complaint. (Appellees' Appx. at 73-74.)
. The District Court did not specifically discuss Agcaoili’s claim under the Privacy Act, but she failed to state one. Agcaoili alleges that various unnamed individuals within the SSA impeded her efforts to investigate her claims, but she does not allege that they withheld any records from her. On the contrary, she alleges that she was able to review her file in 2006. (Compl. at 8.) She also requests no relief in that regard.
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OPINION
PER CURIAM.
Hubert Jackson, a Pennsylvania inmate, seeks a writ of mandamus directing the United States District Court for the Western District of Pennsylvania to “inquir[e] into the legality of the detention of petitioner on [the] basis that ground one of the ... habeas corpus petition [docketed at W.D. Pa. Civ. No. 09-cv-00088] raises a claim that the State Court judgment of sentence is Constitutionally infirm[J” Petition at 1. We will deny the mandamus petition.
In 1989, a jury in Allegheny County convicted Jackson of rape and unlawful restraint. (Case No. 1988-08196). The trial court imposed a sentence of 8 to 20 years in prison. In 2005, Jackson filed a habeas petition under 28 U.S.C. § 2254. The District Court denied the petition as time barred. (W.D. Pa. Civ. No. 05-cv-*37700334). This Court denied a certificate of appealability. (C.A. No. 05-2964.)
In 2009, Jackson filed another habeas petition. (W.D. Pa. Civ. No. 09-cv00088.) Like the habeas petition that he had filed in Civ. No. 09-CV-00087, “claim (1)” in the petition asserted “false imprisonment due to fraud by officers of the court rendering judgment of sentence in violation of due process void.” The District Court dismissed the petition as time barred. This Court denied a certificate of appealability, and denied Jackson’s petition for rehearing en banc. (C.A. No. 09-1909.) Jackson then filed this mandamus proceeding.
A writ of mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). “Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, — U.S.-, 130 S.Ct. 705, 710, — L.Ed.2d-(2010) (per curiam) (quotation marks and punctuation omitted).
Because the 2009 habeas petition has been dismissed, and that matter is closed, Jackson has no right to compel a ruling on the merits of the petition. The proper means for Jackson to challenge the constitutionality of his conviction and sentence in federal court is under 28 U.S.C. § 2254. Because Jackson has had a prior ruling on the merits of a § 2254 petition, he must obtain this Court’s permission to file a second or successive petition. See 28 U.S.C. § 2244. Mandamus, however, is not a means for evading compliance with the gatekeeping requirements that govern second or successive petitions. Cf. United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (prisoner may not use writ of coram nobis to evade gatekeep-ing requirements); Massey v. United States, 581 F.3d 172, 174 (3d Cir.2009) (prisoner cannot seek relief through writ of audita querela on the basis of an inability to satisfy the gatekeeping requirements).
For these reasons, we will deny the mandamus petition. Jackson’s motion to consolidate this proceeding with C.A. No. 09-4553 is denied.
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OPINION
PER CURIAM.
Hubert Jackson, a Pennsylvania inmate, seeks a writ of mandamus directing the United States District Court for the Western District of Pennsylvania to “inquirfe] *378into the legality of the detention of petitioner on [the] basis that ground one of the ... habeas corpus petition [docketed at W.D. Pa. Civ. No. 09-cv-00087] raises a claim that the State Court judgment of sentence is Constitutionally infirm[.]” Petition at 1. We will deny the mandamus petition.
In 1989, Jackson entered a plea of nolo contendere in Allegheny County to charges of rape, burglary, aggravated assault and terroristic threats, and was sentenced to 20 to 40 years in prison. (Case No. 1988-10278). In 1999, Jackson filed a habeas petition under 28 U.S.C. § 2254. The District Court denied the petition as time barred. (W.D.Pa.Civ. No. 99-cv-1793). Jackson filed another habeas petition in 2005, which the District Court transferred to this Court to be treated as an application under 28 U.S.C. § 2244 for leave to file a second or successive petition. This Court denied the application. (C.A. No. 05-2126.)
In 2009, Jackson filed the yet another habeas petition. (W.D. Pa. Civ. No. 09-ev-00087.) “Claim (1)” asserted “false imprisonment due to fraud by officers of the court rendering judgment of sentence in violation of due process void.” The District Court dismissed the petition as time barred. This Court denied a certificate of appealability, and denied Jackson’s petition for rehearing en banc. (C.A. No. 09-1926.) Jackson then filed this mandamus proceeding.
A writ of mandamus is an appropriate remedy in extraordinary circumstances only. Kerr v. United States Dist. Ct., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). “Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry,-U.S.-, 130 S.Ct. 705, 710, — L.Ed.2d - (2010) (per curiam) (quotation marks and punctuation omitted).
Because the 2009 habeas petition has been dismissed, and that matter is closed, Jackson has no right to compel a ruling on the merits of the petition. The proper means for Jackson to challenge the constitutionality of his conviction and sentence in federal court is under 28 U.S.C. § 2254. Because Jackson has had a prior ruling on the merits of a § 2254 petition, he must obtain this Court’s permission to file a second or successive petition. See 28 U.S.C. § 2244. Mandamus, however, is not a means for evading compliance with the gatekeeping requirements that govern second or successive petitions. Cf. United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.2000) (per curiam) (prisoner may not use writ of coram nobis to evade gatekeep-ing requirements); Massey v. United States, 581 F.3d 172, 174 (3d Cir.2009) (prisoner cannot seek relief through writ of audita querela on the basis of an inability to satisfy the gatekeeping requirements).
For these reasons, we will deny the petition. Jackson’s motion to consolidate this proceeding with the mandamus petition docketed at C.A. No. 09-4554 is denied.1
. Although Jackson raises essentially the same argument in the mandamus petition at C.A. No. 09-4554, his challenge in that proceeding concerns a different state court conviction and sentence. Accordingly, we address his mandamus requests separately.
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OPINION OF THE COURT
FISHER, Circuit Judge.
A jury convicted Alexander Sylvester of one count of possession of a prohibited object by a prison inmate in violation of 18 U.S.C. § 1791(a)(2). The District Court sentenced him to sixty months in prison. He appeals both his conviction and his sentence. We will affirm the former, vacate the latter, and remand to the District Court for resentencing.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Sylvester was charged in June 2008 with one count of possession of a prohibited object by a prison inmate in violation of 18 U.S.C. § 1791(a)(2). A two-day trial ensued. At trial, the government presented evidence that Sylvester, while serving a sentence in federal prison for unrelated charges, triggered a metal detector alarm at the entrance to the prison cafeteria. He refused to submit to a pat-down by prison officials and fled from the cafeteria to another area of the prison compound. While fleeing, Sylvester threw an object to the ground. Prison officials later identified that object as a homemade knife, or a “shank.” Sylvester did not testify at trial, but the defense called several witnesses. Among those witnesses were two of Sylvester’s co-inmates, one of whom testified that it was he, not Sylvester, who had thrown the object, and another of whom testified that the object Sylvester had thrown was a can of chewing tobacco. The jury returned a guilty verdict and the District Court thereafter sentenced Sylvester to sixty months in prison.
Sylvester has timely appealed his conviction and sentence.1
II.
Sylvester attacks his conviction on the grounds that the prosecutor’s statements during closing argument violated his Fifth Amendment right against self-incrimination and that the District Court erroneously refused to instruct the jury on his theory of the case. Sylvester also challenges his sentence on the ground that the District Court wrongly classified him as a career offender under the United States Sentencing Guidelines. We address each of these issues in turn.
A. Statements During Closing Argument
Sylvester argues that the District Court erred in denying his motion for a mistrial based on the prosecutor’s statements during closing argument. ‘We review a district court’s decision to deny a motion for mistrial predicated on the grounds that the prosecutor made improper remarks in a closing argument for abuse of discretion.” United States v. Wood, 486 F.3d 781, 786 (3d Cir.2007) (citation omitted).
In Griffin v. California, the Supreme Court held that the Fifth Amendment bars the prosecution from commenting, directly or indirectly, on a defendant’s silence. 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). “Otherwise, the defendant is penalized by the court for exercising his constitutional right not to incriminate himself.” United States v. Isaac, 134 F.3d 199, 206 (3d Cir.1998) (citing Griffin, 380 U.S. at 614, 85 S.Ct. 1229). A comment *381“is directed to a defendant’s silence when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” United States v. Brennan, 326 F.3d 176, 187 (3d Cir.2003) (internal quotation marks and citation omitted). “Statements regarding the absence of facts in the record, however, need not be taken as comment on a defendant’s failure to testify.” Id. (internal quotation marks, alterations and citations omitted). Furthermore, “when the defendant uses his Griffin protection as a sword, rather than a shield, the prosecution may respond appropriately.” Isaac, 134 F.3d at 206 (citing United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988)). In determining whether a prosecutor has impermissibly commented on a defendant’s right against self-incrimination, “we must examine the challenged prosecutorial remark in its trial context.” Lesko v. Lehman, 925 F.2d 1527, 1544 (3d Cir.1991) (citations omitted).
During closing argument, the prosecutor stated in relevant part as follows:
So what [Sylvester] does, if his claim is being it is this, what he does, he runs. He is told to stop. Rules violation. He flees. Told to stop. Rules violation. He’s told to get on the ground. Told to stop. Rules violation. He breaks all of these rules for a can of chewing tobacco. Do you really think, using your common sense, that he goes through all that bother, all that trouble of fleeing those officers, of refusing to obey their commands because of a can of chewing tobacco, Copenhagen?
Or do you really think, using your common sense, he is fleeing because he knows this is a serious violation. He knows he is going to get jammed up if this is found on him. That is why he ran out and gave it a toss and off it went.
Judge Jones told you at the start of this trial that anything that I would say or defense says in the opening statement or closing arguments is not evidence. The only person that you’ve heard say that Mr. Sylvester panicked with the can of chewing tobacco was Mr. Becker [Sylvester’s counsel]. That was Mr. Becker’s theory. No witness took the stand and said he panicked.
It’s a credibility issue. Five prison guards, they all testified consistent. We have inmates who go out there as far as 2045, 2050, and their stories are just entirely inconsistent with each other as far as where the object was thrown and where it was dropped.
(App. 263 (emphasis added).)
After the prosecution finished its closing argument, Sylvester’s counsel moved the District Court at sidebar for a mistrial, arguing that the prosecutor had implicitly, and impermissibly, commented on Sylvester’s election not to testify because, in his view, no one but Sylvester could have testified about whether Sylvester had in fact panicked. The District Court denied the motion, concluding that the prosecutor’s statement, taken in context, plainly referred only to the witnesses who had actually testified at trial and could not be interpreted as an allusion to Sylvester’s silence.
Sylvester paints only the italicized portion of the above excerpt of the prosecutor’s closing argument as an infringement of his Fifth Amendment right against self-incrimination. Taking that remark in context, however, we are far from persuaded that it could be reasonably construed as a reference to Sylvester’s silence at trial. Cf. United States v. Price, 13 F.3d 711, 721 (3d Cir.1994). Rather, we agree with the District Court that the remark was most reasonably understood as a reference to the absence of testimony that Sylvester *382panicked by those witnesses who actually took the stand.
Even assuming that Sylvester’s characterization of the prosecutor’s statement is correct, we still see no evidence of misconduct. Sylvester’s counsel told the jury during his opening statement that when prison officials ordered Sylvester “to go through [the metal detector] again[,] ... it went off again and he panicked.” (App.79.) Importantly, that statement invited the prosecutor’s statement about the lack of testimony regarding Sylvester’s purportedly panicked state, as there was no testimony presented by either side suggesting that Sylvester had panicked when ordered to submit to a pat-down. In other words, the context of the remark shows that it was directed toward rebutting Sylvester’s theory of the case. Under these circumstances, the prosecutor’s statement did not constitute misconduct. Cf. Brennan, 326 F.3d at 188 (prosecutor’s statement “was permissible argument regarding what evidence was, and was not, in the record”); Isaac, 134 F.3d at 206-07 (no Fifth Amendment violation where the prosecutor stated in closing argument that “[the defendant] captained that boat from Jamaica, and the only people who would know that [the defendant] captained that boat from Jamaica are [the defendant], Conrad Brown, Irvin Reid, and that fourth individual in Jamaica. Those are the only people”); United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996) (prosecutor’s statement exposing weaknesses in the defense’s theory was not impermissible).
Because the prosecutor committed no misconduct, we perceive no abuse of discretion in the District Court’s denial of Sylvester’s motion for a mistrial. See Wood, 486 F.3d at 786 (“To find that the court abused its discretion in failing to order a mistrial for prosecutorial misconduct, we must first be convinced that the prosecution did in fact misconduct itself.” (quotation omitted)).
B. Jury Instructions
Sylvester argues that he is entitled to a new trial because of the District Court’s refusal to read his proposed jury instruction.
“We review a district court’s decisions regarding jury instructions for abuse of discretion.” United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir.2008) (citation omitted). “We reverse £a district court’s denial to charge a specific jury instruction only when the requested instruction was correct, not substantially covered by the instructions given, and was so consequential that the refusal to give the instruction was prejudicial to the defendant.’ ” United States v. Leahy, 445 F.3d 634, 651 (3d Cir.2006) (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir.1992)). In determining whether reversal is warranted, we read the jury instructions as a whole, United States v. Flores, 454 F.3d 149, 157 (3d Cir.2006), bearing in mind that “the trial judge retains discretion to determine the language of the jury charge.... So long as the court conveys the required meaning, the particular words used are irrelevant.” Id. at 161 (citation omitted). Moreover, while “a defendant is entitled to a jury instruction on a theory of defense whenever some evidence supports that theory, ... [t]he district court is not obligated to use the language the defendant proffers.” United States v. Kapp, 781 F.2d 1008, 1013 (3d Cir.1986) (citation omitted).
Here, Sylvester asked the District Court to read a proposed jury instruction stating his theory of the case. According to that theory, the object that triggered the metal detector alarm was a can of chewing tobacco rather than a knife, and the knife that prison officials found on the *383ground had in fact been discarded by another inmate. Specifically, Sylvester wanted the Court to tell the jury that “because the prosecutor chose not to charge the defendant with possession of a prohibited object, tobacco, you will not have the option of convicting Alexander Sylvester of that crime.” (App.309-10.) The District Court agreed that Sylvester could argue his theory of the case to the jury but declined to read his proposed instruction. The Court reasoned that its other instructions made sufficiently clear that Sylvester’s guilt vel non hinged on the jury’s finding beyond a reasonable doubt that Sylvester possessed a weapon, not some other object. We agree with the District Court’s conclusion.
The District Court told the jurors that they could find Sylvester guilty only if they found that he had possessed a weapon, and provided a definition of “weapon.” The negative inference clearly flowing from that instruction was that the jury could not convict Sylvester if it determined that the object Sylvester possessed was a can of chewing tobacco, as he argued, or any other object that did not come within the definition of a weapon as read by the District Court. By finding Sylvester guilty of violating § 1791(a)(2), the jurors necessarily found beyond a reasonable doubt that Sylvester possessed a weapon,
and that was all they needed to do under the circumstances. Put another way, even assuming that Sylvester’s proposed instruction was correct, it was substantially covered by the District Court’s other instructions. Cf. Hoffecker, 530 F.3d at 167; United States v. Weatherly, 525 F.3d 265, 270 (3d Cir.2008); United States v. Leahy, 445 F.3d 634, 651-52 (3d Cir.2006). Accordingly, viewing the jury instructions in their entirety and in context, we conclude that the District Court did not abuse its discretion in rejecting Sylvester’s proposed jury instruction.
C. Career Offender Classification at Sentencing
Sylvester claims that the District Court erred in classifying him as a career offender under § 4B1.1 of the United States Sentencing Guidelines. We exercise plenary review over a district court’s determination that an offense constitutes a crime of violence for purposes of determining career offender status under U.S.S.G. § 4B1.1. See United States v. Shabazz, 233 F.3d 730, 731 (3d Cir.2000); United States v. Williams, 176 F.3d 714, 715 (3d Cir. 1999).
Before sentencing, the United States Probation Office prepared a Presentence Investigation Report, which assigned Sylvester a base offense level of 13 and classified him as a career offender under U.S.S.G. § 4B1.1 based on both the conclusion that Sylvester’s § 1791(a)(2) conviction was a crime of violence and his two prior felony convictions for crimes of violence, thus resulting in a total offense level of 17 and a criminal history category of VI.2 Based on these calculations, Sylvester’s advisory Guidelines range was fifty-one to sixty months in prison.3 Sylvester objected to his classification as a career offender on the ground that his conviction for possession of a prohibited object did not qualify as a crime of violence. The District Court overruled that objection and concluded that a § 1791(a)(2) conviction is *384a crime of violence. The Court sentenced Sylvester to sixty months in prison.
On appeal, Sylvester renews his argument that a § 1791(a)(2) conviction does not qualify as a crime of violence. As both parties recognize, in United States v. Polk, 577 F.3d 515 (3d Cir.2009) — issued less than two months after the District Court sentenced Sylvester — we held that “a § 1791(a)(2) conviction for possession of a prohibited object designed to be used as a weapon in prison is not a ‘crime of violence’ for purposes of the [cjareer [offender Guidelines.” Id. at 520. In light of Polk, the government “concedes this issue” arid asks us to remand for resentencing. (Appellee’s Br. 26.)
Sylvester also argues that he cannot be classified as a career offender based on his two prior felony convictions because those convictions, he asserts, occurred more than fifteen years before his § 1791(a)(2) conviction. He acknowledges, however, that he did not raise this issue before the District Court. Ordinarily, that omission would limit our review to the plain error standard. See Polk, 577 F.3d at 517 (“Because Polk did not object to his designation as a career offender for sentencing purposes in the District Court, we review for plain error.” (citing Fed.R.Crim.P. 52(b))). “To grant the relief requested under this standard, we would need to conclude not only that the District Court erred in classifying [Sylvester] as a career offender, but that the error was plain, and it affected adversely ‘substantial rights’ of [Sylvester] as well as the ‘fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quotation omitted). Because we will remand to the District Court for resentencing in light of Polk, we need not address Sylvester’s other challenge to his career offender status, as he will be able to raise it in the District Court on remand.
III.
For the foregoing reasons, we will affirm Sylvester’s conviction but vacate his sentence and remand to the District Court for resentencing.
. 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.
. The two prior felony convictions were, respectively, for first-degree robbery and manslaughter.
. Sylvester’s Guidelines range was initially fifty-one to sixty-three months in prison, but because a § 1791(a)(2) conviction imposes a five-year maximum prison sentence, the upper end of his Guidelines range was reduced to sixty months pursuant to U.S.S.G. § 5Gl.l(a).
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OPINION OF THE COURT
JORDAN, Circuit Judge.
Steven Usuama Rose appeals the judgment of the United States District Court for the Eastern District of Pennsylvania imposing a sentence of 120 months imprisonment following his convictions for distribution of cocaine and possession of a firearm by a convicted felon. Rose had been indicted by state authorities who later dismissed the state charges against him in favor of federal prosecution. Rose contends that the delay between his state proceedings and his federal conviction violated his Sixth Amendment right to a speedy trial. He also attacks the procedural reasonableness of his sentence. For the reasons that follow, we will affirm Rose’s conviction and vacate and remand for resentencing.
I. Background
On August 9, 2005, Rose attempted to sell 0.3 grams of cocaine to an undercover police officer in Lancaster, Pennsylvania. Officers arrested him after a brief foot chase, during which Rose discarded a nine-millimeter firearm. Upon the arrest, police searched Rose and discovered an additional 0.6 grams of cocaine, for a total of 0.9 grams involved in the offense. Rose was remanded for pretrial detention fol*386lowing a preliminary hearing on September 27, 2005.
A. The Information and Prosecution
On October 24, 2005, the Lancaster County District Attorney filed an information charging Rose with drug-possession and firearms offenses. Pursuant to protocol within the District Attorney’s office, state prosecutors referred Rose’s case to the United States Attorney’s Office to be considered for federal prosecution. On January 19, 2006, the U.S. Attorney’s Office preliminarily approved the case for federal prosecution but continued to review the matter during the following two months to determine whether Rose’s case should be coordinated with another federal investigation into criminal activity by one of Rose’s relatives. Ultimately, the federal prosecutors deemed coordination unnecessary, and, on March 13, 2006, the U.S. Attorney sent a letter to Rose’s counsel (“the March 13 letter”) stating that Rose would not be prosecuted federally if he pled guilty to drug and weapons charges in state court and agreed to a negotiated sentence of between 6J/¿ and fifteen years.1 The letter also stated that “the charges [would] be adopted for federal prosecution” if Rose failed to plead guilty in state court. Throughout much of 2006, Rose’s state proceedings continued without federal involvement.
Rose ultimately refused to enter a plea agreement that satisfied the conditions set out in the March 13 letter, and he pled not guilty to the state charges on September 18, 2006. Nevertheless, Rose’s attorney and the state prosecutor, who had been cross-designated as a special assistant U.S. Attorney to handle any federal prosecution that resulted from the case, continued to negotiate in hopes of reaching a deal that would prompt Rose to accept a state plea and forestall the possible initiation of federal charges. By late November or early December, however, it was clear to the prosecutor that further negotiations would be unproductive.
In late May or early June of 2007, officials in the District Attorney’s office sent Rose’s file to federal prosecutors for the purpose of preparing a federal case against Rose. On June 28, 2007, Rose moved to dismiss the state charges against him under Rule 600 of the Pennsylvania Rules of Criminal Procedure, which requires that criminal trials commence within 180 days after a written complaint is filed. See Pa. R.Crim. P. 600(A)(2) (“Trial in a court case in which a written complaint is filed against the defendant, when the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed.”). The U.S. Attorney’s Office obtained a federal indictment against Rose on July 10, 2007, after which the Court of Common Pleas dismissed the state charges against Rose, rendering his Rule 600 motion moot.
On September 11, 2007, Rose moved to dismiss the federal indictment on Sixth Amendment speedy trial grounds, arguing that the federal government was “entirely at fault and had no reasonable basis” for allowing the two-year lapse of time after his arrest on state charges. (App. at 38.) - He further argued that dismissal was warranted because he had been held in pretrial detention since his preliminary hearing in September 2005 and that he had suffered prejudice because the delay had impaired his ability to locate witnesses and conduct a physical investigation of the alleged crime.
*387On March 7, 2008, the District Court denied Rose’s motion to dismiss. The Court concluded that Rose’s federal speedy trial rights attached on the date of the federal indictment and that the pen-dency of his state proceedings had no bearing on those rights. While the Court expressed concern regarding the length of Rose’s state custody, it held that the federal government, as a sovereign distinct from the states, “is not bound by the action of state authorities and that successive state and federal prosecutions are constitutionally permissible.” United States v. Rose, No. 07-CR-883, 2008 WL 650034, at *2 & n. 2 (E.D.Pa. Mar.7, 2008) (quoting United States v. Marler, 756 F.2d 206, 211 (1st Cir.1985)). The Court further observed that only eight months had passed between the return of the federal indictment and the Court’s ruling on the motion to dismiss, that much of that time had been taken up by proceedings associated with motions in limine filed by Rose, and that Rose had identified no witnesses or physical evidence that had become unavailable to him as a result of the alleged delay. Trial commenced on August 19, 2008, and Rose was found guilty of distribution of cocaine and of possession of a firearm by a convicted felon.
B. Sentencing
A presentence report (“PSR”) was prepared, which included the observation that, based on Rose’s offense conduct, his offense level would typically be 28, his criminal history category would be V, and his Sentencing Guidelines range would be 130 to 162 months.2 However, the PSR further noted that Rose qualified as a career offender, which increased his offense level to 34, his criminal history category to VI, and his Sentencing Guidelines range to 262 to 327 months.
The Court held a sentencing hearing on December 22, 2008. Defense counsel urged the Court to vary below the career offender Guidelines range in light of the disparity between the ordinary offense conduct range and the career offender range. Counsel argued that career offender sentences should be reserved for cases in which the defendant deals in large quantities of drugs, and should not be imposed in cases such as Rose’s, which involved less than one gram of cocaine. The Court, in considering that argument, mistakenly suggested that Rose’s offense conduct range was 140 to 175 months and asked defense counsel to verify that calculation. Defense counsel then contributed to the confusion by incorrectly agreeing that the Court had accurately stated Rose’s offense conduct range. The Court allowed the prosecutor, who did not notice the error, to respond to defense counsel’s argument, after which the Court spoke directly with Rose regarding Rose’s criminal history and prospects for rehabilitation.
The Court adopted the PSR and used Rose’s career offender Guidelines range at the first step of its analysis under United States v. Gunter, 462 F.3d 237 (3d Cir. 2006).3 At the third Gunter step, however, *388upon reviewing the sentencing factors enumerated in 18 U.S.C. § 3553(a), the Court granted Rose a significant downward variance from his career offender range and imposed a sentence of 120 months. The Court observed that, “had it not been for the career offender provision, ... the sentence in this case would be significantly lower in terms of the advisory Sentencing Guidelines range.” (App. at 334.) The Court noted that Rose qualified as a career offender because he had multiple pri- or convictions for possession of relatively small amounts of drugs but that those convictions placed him in a sentencing range similar to that frequently seen in large-scale drug-trafficking cases. The Court concluded that a significant downward variance was necessary to prevent an unwarranted sentencing disparity between Rose, who had a history of street-level dealing, and other small-time dealers. The Court never referred to its mistaken statement regarding Rose’s offense conduct Guidelines range. This timely appeal followed.
II. Discussion4
Rose advances two grounds for relief on appeal. First, he argues that the District Court erred in denying his motion to dismiss on speedy trial grounds. Second, he argues that the District Court’s misstatement of his offense conduct range under the Guidelines constitutes an erroneous Guidelines calculation that renders his sentence procedurally unreasonable. We address each of those arguments in turn.
A. Speedy Trial
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial.” U.S. Const, amend. VI. When a defendant contends that the government has violated his speedy trial rights, the court must employ the four-part balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to assess the merits of the defendant’s claim. United States v. Dent, 149 F.3d 180, 184 (3d Cir.1998). The Barker test requires the court to evaluate the defendant’s claim in light of “(1) the length of the delay [pending trial], (2) the reasons for the delay, (3) whether, in due course, the defendant asserted his right to a speedy trial[,] and (4) the actual prejudice the defendant suffered as a result.” Id. (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182). If the length of the delay is brief, speedy trial rights are not implicated, and the court need not consider the final three Barker factors. Hakeem v. Beyer, 990 F.2d 750, 760 (3d Cir.1993). However, if the delay is lengthy, the court must inquire into all four Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. If the Barker calculus leads the court to conclude that the government has violated a defendant’s rights, the court must dismiss the indictment. Id. at 522, 92 S.Ct. 2182. We conduct a de novo review of a district court’s speedy trial analysis. Hakeem, 990 F.2d at 758.
We begin by evaluating the length of the delay pending trial, which requires us to identify the point at which the right to a speedy trial arises. Speedy trial rights apply only after the defendant has been “indicted, arrested, or otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982). Rose was indicted by a federal grand jury on July 10, 2007. He does not predicate his Sixth Amendment claim upon delay in his federal proceedings, nor does he argue that the pace at which the District Court administered his *389federal criminal case could support a speedy trial claim. Instead, he argues that his federal speedy trial rights attached not with the return of the federal indictment but on March 13, 2006, when the U.S. Attorney issued the letter stating that he would be prosecuted if he failed to reach a plea deal with state prosecutors. According to Rose, the March 13 letter constituted an official accusation sufficient to trigger federal speedy trial rights because the letter stated that his case would be “adopted for federal prosecution” unless he pled guilty in state court. (Supp. App. at 2.) ■
Rose’s argument is unavailing because federal speedy trial rights attach only at the time of a federal arrest or the institution of “a formal [federal] criminal charge.” MacDonald, 456 U.S. at 6, 102 S.Ct. 1497. We have recently said in a case like this that, “[w]hen an arrest on state charges is followed by a federal indictment, the right to a speedy trial in the federal case is triggered by the federal indictment, and the time period under consideration commences on that date.” United States v. Battis, 589 F.3d 673, 679 (3d Cir.2009).5 The state arrest and state prosecution do not control the speedy trial analysis because the state and federal governments are separate sovereign entities, and the actions of one cannot typically bind the other. See MacDonald, 456 U.S. at 10 n. 11, 102 S.Ct. 1497 (observing in dicta that “an arrest or indictment by one sovereign would not cause the speedy trial guarantees to become engaged as to possible subsequent indictments by another sovereign”).
The March 13 letter is obviously not an indictment and does not otherwise qualify as a formal charge. It neither resulted in Rose’s incarceration under federal authority nor initiated federal criminal proceedings against him. See Hakeem, 990 F.2d at 760 (holding that speedy trial rights are “measured from the date of formal accusation, i.e., from the earliest date of arrest or indictment”). The letter is simply a representation that the federal government would forbear pursuing charges against Rose, provided that he satisfactorily resolved his criminal liability in state court. It did not obligate the federal government to prosecute Rose if he failed to reach a state plea deal, and the U.S. Attorney’s Office could have chosen to take no prose-cutorial action after state plea negotiations turned sour. Moreover, while the odds of indictment were surely high, the government had no guarantee that federal prosecutors would successfully persuade a grand jury to indict Rose. Hence, at the time the letter was prepared, there remained a possibility that the U.S. Attorney’s Office would be unwilling or unable to pursue the case to indictment. Because the letter neither charged Rose nor caused him to be placed in federal custody, it is properly viewed as nothing more than a representation that federal authorities would refrain from attempting to prosecute him if he pled guilty in state court, not as a formal accusation. Accordingly, we conclude that the federal indictment against Rose provides the appropriate point of reference for measuring his federal speedy trial rights. The District Court therefore did not err in refusing to include Rose’s state proceedings when evaluating those rights, and we will affirm the Court’s denial of Rose’s motion to dismiss.
*390B. Sentencing
Rose appeals his sentence on the ground that the District Court abused its discretion when it erroneously identified the sentencing range that would have applied to him had he not qualified as a career offender. In raising this challenge, Rose does not dispute that the Court correctly calculated his career offender Guidelines range, that the Court relied upon that range at the first step of its analysis under Gunter, or that the Court arrived at the 120-month sentence by varying downward from his career offender range. The only challenge on appeal is that the Court’s erroneous identification of Rose’s offense conduct Guidelines range impairs the validity of his sentence because it infected the analysis at the final Gunter step, the sentencing decision under 18 U.S.C. § 3558(a).
Where, as here, the defendant failed to call an erroneous Guidelines calculation to the Court’s attention, we review for plain error. United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir.1994) (reviewing unpre-served challenge to Guidelines calculation for plain error). “Plain error requires the defendant to demonstrate that the district court committed an error that is plain and that affect[s] substantial rights.” United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir.2009) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted)). An error affects substantial rights if it altered the outcome of the proceedings before the district court. Id. We will affirm a sentence despite an incorrect Guidelines calculation if we “conclude on the record as a whole ... that the error did not affect the district court’s selection of the sentence imposed.” United States v. Langford, 516 F.3d 205, 215 (3d Cir.2008). Thus, plain error analysis consists of three components: (1) the presence of a legal error, (2) that is obvious from the face of the proceedings, and (3) that has an effect on the outcome of the proceedings.
Here, the District Court’s mistaken conclusion as to Rose’s offense conduct Guidelines range does constitute plain error because we are unable to say that the mistake had no effect on the District Court’s ultimate decision on sentencing. We recognize that the Court calculated and applied the correct career offender range at the first step of the Gunter analysis. Thus, there was no error with regard to the legally applicable Guidelines range, as Gunter focuses upon calculation of the range that actually applies to the defendant. We note that, in so holding, we are liberally interpreting the District Court’s obligations to calculate the applicable Guidelines range under Gunter, as the District Court unquestionably erred in identifying the Guidelines range that would have applied had Rose not qualified as a career offender. The Court was then drawn into a discussion of the offense conduct range as an alternative basis for considering how to properly sentence Rose. Indeed, there is some irony here because it is only the District Court’s solicitude for Rose’s interests that has given him any basis to argue procedural error. Had the District Court omitted any mention of the offense conduct range, Rose’s sentence would undisputedly be procedurally sound.6
*391But the Court did mention the offense conduct range and it did so specifically in the context of a discussion about alternative bases for coming to a just sentence. Looking then at the test for plain error that we must apply, the first two steps are essentially uncontested. The District Court erred in its assessment of the offense conduct range, and that error is obvious, in the sense that the true offense conduct range is clearly lower than that cited by the Court.7 The real dispute is over the third and final step, i.e., whether the error had an effect on the outcome of the proceedings.
While the government argues that the Court’s error was “an immaterial slip of the eye on the sentencing table that could not have affected the sentence imposed,” (Answering Br. at 41), we cannot be so sure. Again, our precedent tells us that, for an “error to be harmless, it must be clear that the error did not affect the district court’s selection of the sentence imposed.” Langford, 516 F.3d at 215. We must “possess a sure conviction that the error did not prejudice the defendant.” United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir.1995) (internal quotation marks and citation omitted). Rather than having that level of confidence in this case, we have instead a concern that the District Court may have been using the erroneous offense conduct range as a referent in its sentencing analysis. That concern is furthered by the Court’s comment, while imposing sentence, that “had it not been for the career offender provision, ... the sentence in this case would be significantly lower in terms of the advisory sentencing guideline range.” (App. at 334.) Under these circumstances, we would be hard-pressed to say that it is clear the Court’s mistake had no effect on the sentence it gave to Rose.
It is by no means certain that the District Court would have imposed a different length of imprisonment had it considered the correct offense conduct range during sentencing, but it may have. We are thus bound to conclude that the procedural error identified by Rose rises to the level of plain error. We express no view on whether the same sentence will be warranted upon resentencing.
III. Conclusion
Because Rose has failed to establish that the government infringed upon his federal speedy trial guarantees, the judgment of conviction will be affirmed. However, because the Court committed a plain error at sentencing affecting Rose’s substantial rights, we will vacate the sentence and remand for further proceedings consistent with this opinion.
. According to the letter, Rose's federal Sentencing Guidelines range would have been 111-123 months, were he convicted in federal court. His range under the Pennsylvania Sentencing Guidelines on comparable charges would have been 36-48 months.
. The 2008 edition of the United States Sentencing Guidelines Manual was used to prepare Rose's PSR.
. Gunter requires district courts to follow a three-step procedure when imposing a sentence. First, the district court must calculate the defendant’s Sentencing Guidelines range without regard to departure motions. Gunter, 462 F.3d at 247. Second, the court must rule on the parties’ motions for upward or downward departures. Id. At the conclusion of the second step, the district court must recalculate the defendant’s Sentencing Guidelines range to reflect its ruling on the departure motions. Id. Third, the district court must consider the factors enumerated in § 3553(a) and exercise its discretion to craft a sentence that is appropriate under the circumstances of each particular case. Id.
. The District Court possessed jurisdiction over Rose’s criminal case pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
. As in Battis, Rose was initially indicted for state offenses and subsequently charged with federal crimes arising from the same underlying conduct. As in Battis, Rose argued that his federal speedy trial rights attached while his state proceedings were pending. The only significant distinction between Battis and the present case is that the defendant in Battis did not receive an offer of prosecutorial forbearance from the U.S. Attorney.
. Judge Rendell would hold that, since the District Court calculated the applicable Guideline range correctly, there was no procedural error caused by the incorrect reference to the offense conduct range, and the sentence was “procedurally sound.” However, she does not disagree with remanding to permit the Court to re-sentence Rose if the mistake as to the offense conduct range influenced the sentence the Court imposed.
. Of course, in another important sense, it was not obvious at all, as the silence of government's counsel and the misguided affirmation of defense counsel help demonstrate. Criminal sentencing can be complex and is nearly always a time when a multitude of important considerations are actively being addressed by the court and counsel. In those circumstances, a flaw which is obvious in hindsight may pass unnoticed. It nevertheless remains an obvious flaw on the face of the record.
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11-05-2022
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OPINION
PER CURIAM.
Mei Bin Chen petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on August 25, 2008. For the reasons that follow, we will dismiss in part and deny in part the petition for review.
I. Background
Because we write solely for the benefit of the parties, we will set forth only those facts necessary for analysis. Chen is a native and citizen of China. She entered the United States illegally on June 13, 2006, and was served with a notice to appear two days later. Chen conceded re-movability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming that she suffered past persecution and fears future persecution and torture in China because she is Catholic. Specifically, Chen claimed that she joined an unregistered Catholic church after her mother died in 2000. In May 2006, when re*393turning from a trip to purchase Bibles for her church, Chinese authorities arrested her. Chen claimed she was detained for three days, during which time the authorities cut her hand with a razor, pulled her hair, and denied her water. She fled China shortly thereafter.
After a hearing on June 11, 2007, the Immigration Judge (“IJ”) concluded that Chen was not a credible witness. The IJ also held that, even if Chen had been credible, she failed to meet her burden of proof. The IJ denied relief and ordered Chen’s removal.
Chen appealed to the BIA, arguing that the IJ abused her discretion in reaching the adverse credibility determination. See A.R. 6 (“The only issue presented in this appeal is whether Hon. Immigration Judge Reichenberg seriously abused her discretion in finding the respondent not credible despite the substantial and overwhelming evidence that dictates otherwise.”). On August 25, 2008, the BIA rendered a short opinion dismissing Chen’s appeal. The BIA concluded that Chen failed to show that the factual findings underlying the IJ’s adverse credibility determination were clearly erroneous. Accepting the IJ’s findings of fact, the BIA adopted and affirmed the IJ’s decision “to the extent it [was] challenged on appeal.”
This timely counseled petition for review followed.
II. Analysis
We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, where the BIA adopts the IJ’s reasoning and discusses some of the bases of the IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are supported “by reasonable, substantial and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Chen to succeed on her petition for review, this Court “must find that the evidence not only supports that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
A.
We review adverse credibility determinations for substantial evidence. Chen, 376 F.3d at 221-22. We will affirm if the determination is supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). To reverse, the evidence of Chen’s credibility must be so strong “that in a civil trial [s]he would be entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222.
We have closely reviewed the adverse credibility determination made by the IJ and affirmed by the BIA and conclude that it rests upon substantial evidence. The IJ specifically noted a number of serious inconsistencies and implausibilities, including, inter alia:
(1) Chen testified several times that she joined the unregistered Catholic church after her mother died. See, e.g., A.R. 153. Initially, she provided a statement in support of her application stating that her mother died on July 16, 2000. A.R. 413. This matched a statement from her priest showing that Chen joined her church on July 16, 2000. A.R. 366. However, before her hearing, Chen made a handwritten correction to her statement to change the date of *394her mother’s death to September 2000. A.R. 413 Id.; see also 111. This matched a death certificate showing that Chen’s mother died on September 7, 2000. A.R. 344; A.R. 175 (“Yes, my mother passed away September 7th.”). The IJ observed that, with the change, the chronology was no longer consistent; if Chen joined the church in July 2000, then, contrary to her testimony, she joined several months before her mother died. See A.R. 172 (“Q. When did you begin attending his services? A. When? I think July 16th. Q. Of what year? A. 2000. Q. That would be before your mother died then, right, ma’am? A. After her passed away.”).
(2)Chen testified that she fled China on May 20, 2006, five days after her release from prison. A.R. 167. However, she did not adequately explain how she was able to raise the money for her trip, arrange a smuggler, obtain a passport, and make other necessary arrangements in such a short period of time. In addition, Chen’s testimony was not consistent with her prior statement made during her airport interview, in which she stated that she left China on June 5, 2006.1 A.R. 252.
(3) Chen’s asylum application did not include her claim that she was cut with a razor while detained by Chinese police, even though that was the most serious act of mistreatment she claimed to have suffered while in detention. See A.R. 413.
(4) Chen testified that her brother had mailed her copies of two summonses issued by the Chinese police for her arrest. Although they had been mailed separately, she claimed both had been lost. See A.R. 164, 398. However, many other documents mailed by her brother and her other relatives arrived successfully.
Chen contends these are “minor [in]consistencies” that cannot support the IJ’s findings. We disagree. These are specific and cogent reasons for concluding that Chen lacked credibility, and many go to the “heart” of her claims.2 See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Accordingly, we will deny the petition for review to the extent it challenges the adverse credibility determination.
*395B.
Moreover, even without regard to the adverse credibility determination, there is no basis to grant Chen’s petition for review. Chen failed to appeal the IJ’s alternative grounds for denying relief: that Chen failed to meet her burden of proof.3 This unchallenged aspect of the IJ’s decision is fatal to Chen’s claim.
In her brief to the BIA, Chen expressly limited her challenge only to the IJ’s adverse credibility finding. A.R. 6 (“The only issue presented in this appeal is whether Hon. Immigration Judge Reichen-berg seriously abused her discretion in finding the respondent not credible despite the substantial and overwhelming evidence that dictates otherwise.”). To the extent Chen attempts to claim in her petition for review that she satisfied her burden of proof, we will dismiss this unexhausted claim for lack of jurisdiction. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1) ]; Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).
Chen attempts to excuse her failure to exhaust administrative remedies by proposing that she was not required to raise every claim in her appeal to the BIA. “Issue exhaustion,” she contends, is not a jurisdictional prerequisite.4 However, we have expressly held that “an alien is required to raise and exhaust his or her remedies as to each claim or ground for relief if he or she is to preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003) (emphasis added). Chen failed to exhaust her administrative remedies as to the claim that she satisfied her burden of proof to qualify for relief. Accordingly, the issue is not properly before us and we will dismiss it for lack of jurisdiction.
III. Conclusion
For the foregoing reasons, we will dismiss the petition for review to the extent we lack jurisdiction over Chen’s claims. We will deny the petition for review in all other respects.
. Chen argues that the IJ gave undue weight to Chen's airport statement. However, the inconsistencies between Chen's airport statement and testimony did not provide the sole basis for the adverse credibility determination. Cf., Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir.1998) (holding that inconsistencies between hearing testimony and an airport statement are not sufficient, standing alone, to support an adverse credibility determination). Chen also argues that the IJ failed to establish that the statement was reliable because "the IJ failed to ascertain whether the petitioner adequately understood the questions put to [h]er at the border.” Petitioner’s Brief at 11. As a factual matter, this lacks merit. The record reflects that Chen was provided a telephone interpreter during the airport interview. A.R. 140.
. Prior to May 2005, an adverse credibility determination could only be based upon inconsistencies that went to the “heart” of the individual’s claim. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). The REAL ID Act, which applies to Chen, modifies that standard by providing that "credibility determinations may be made 'without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim.’ ” INA § 208(b)(1)(B)(iii) [8 U.S.C. § 1158(b)(1)(B)(iii) ]. This Court has not yet addressed the new provision. However, the change is irrelevant here because the credibility problems are sufficiently consequential to meet the pre-REAL ID Act standard.
. To be granted asylum, Chen was required to show that she is "unable or unwilling to return to [China] ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]; INA § 208 [8 U.S.C. § 1158], For withholding of removal, Chen had to demonstrate that her life would more likely than not be threatened in China based on one of these protected grounds. INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)], Finally, for relief under the CAT, Chen had to show that she would more likely than not be tortured if removed to China. 8 C.F.R. § 208.16(c)(2).
. In support, Chen relies upon Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), a Supreme Court decision concerning administrative exhaustion requirements in Social Security proceedings. The Sims court recognized that, where issue exhaustion is not statutorily required, such a requirement may be judicially imposed if the administrative proceedings in question are analogous to traditional adversarial litigation. Id. at 2084. Contrary to Chen’s argument, immigration proceedings are analogous to adversarial litigation and, accordingly, issue exhaustion is appropriate under Sims. Chen also cites a decision by the Court of Appeals for the Fifth Circuit, Haitian Refugee Center v. Smith, 676 F.2d 1023, 1034 (5th Cir. 1982), to argue that issue exhaustion is a matter of discretion and may be waived. However, Chen provides nothing to support her request for the exercise of such discretion.
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11-05-2022
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OPINION
PER CURIAM.
I.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order dismissing their appeal of the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition.
II.
Petitioners Xiao Yan Chen, Rong Qiao Zhang, and Ming Fu Zhang are natives and citizens of the People’s Republic of China.1 They arrived in the United States on January 1, 2006. Shortly after, on January 18, 2006, the Department of Homeland Security (“DHS”) served Petitioners with notices to appear, charging them with being subject to removal as aliens present in the United States without proper documentation under section 212(a)(7)(A)(i)(I) of the Immigration and Naturalization Act (“INA”). On March 2006, Petitioners appeared in immigration court and admitted to the charges against them and conceded removability. In seeking relief from removal, Chen, lead Petitioner, sought asylum, withholding of removal, and protection under the CAT, listing her children as derivative beneficiaries.2
On August 3, 2006, an IJ granted Chen’s asylum application. On August 11, 2006, DHS filed a motion to reopen in order to submit newly-received evidence that the documents that Chen submitted in support of her application were not genuine.3 Chen did not oppose the motion, and the IJ granted the motion to reopen the proceedings.
On December 4, 2007, following a merits hearing, the IJ denied Chen’s application upon finding that Chen was not credible because she provided illegitimate documentation in support of her claim of having been persecuted for violating China’s family planning policy. Chen appealed the IJ’s ruling and, on March 11, 2009, the BIA dismissed Chen’s appeal, affirming the IJ’s adverse credibility determination. Chen filed a timely petition for review in this Court.
III.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases *413for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Because Chen filed her application for relief after the enactment of the REAL ID Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the REAL ID Act, an IJ may base his or her credibility determination on observations of the applicant’s demeanor, the plausibility of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 208(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
At her immigration hearing, Chen testified that because she did not wait the required four-year period between having her first child and second child, she was issued a fine and given notice in December 1992 that she would be sterilized for having violated the country’s birth policy. In order to avoid sterilization, Chen testified that she went into hiding for a period and, as a result, Government officials tore down her home. Chen did not provide any evidence corroborating the claim, however.
In June 2002, Chen and her husband divorced and, in April 2003, she remarried. Chen testified that in December 2004, while undergoing a gynecological exam, she discovered that she was pregnant. Following her exam, Chen testified that she was taken to a hospital, where an abortion was performed against her will. Chen stated that after the procedure, she asked her mother to obtain the abortion and medical certificates from the hospital. The hospital refused, but later relented and gave Chen’s mother the documents.
Chen testified that she again was ordered sterilized, but the procedure was never performed because she told hospital officials that she would soon be leaving China for the United States. At the hearing, Chen testified that she believed the documents were authentic. Chen’s brother also testified that he obtained the abortion certificate from his mother and brother-in-law and that he brought the documents with him to the United States in 2006.
The IJ determined that the documents that Chen provided in support of her application were likely counterfeit. The DHS Forensic Document Laboratory concluded that it was unlikely that the documents are genuine because they were produced using methods inconsistent with known government documents, and instead consistent with known counterfeit documents. (A.R. 421.) Chen did not provide any other evidence establishing that the documents were genuine. Instead, she explained only the process by which the documents had been brought from China to the United States.
The IJ then weighed Chen’s testimony against the forensic lab report and determined that the documents were not genuine and that Chen’s use of false documentation to support her claims undermined her credibility. As a result, the IJ ruled that Chen failed to meet her burden of proving past persecution or a well-founded fear of future persecution, and thus, failed to establish eligibility for asylum. The BIA affirmed the IJ’s credibility determination, finding that the “observations were logically tied to the material points of the respondent’s claim and furnished a sound basis for his findings.” (A.R.4.)
*414Our review of the record leads us to conclude that substantial evidence supports the adverse credibility finding. In Matter of O-D-, 211. & N. Dec. 1079,1082 (BIA 1998), the BIA held that when a fraudulent document is used to support an asylum claim, it “generally discredits [the applicant’s] testimony regarding asylum eligibility.” Indeed, “a single false document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007).
In this case, the documentary evidence that Chen submitted went to the heart of her claim, providing the only corroborating evidence that she was forced to undergo an abortion. While Chen’s brother testified at the hearing that he had been given the documents by other family members, the testimony did not address the issue of their authenticity.4 As a result, Chen was unable to rebut the forensic analyst’s conclusion that the documents were likely fraudulent.
Although Chen argues that the IJ should have ordered DHS to conduct further forensic testing on the documents before rendering a decision, she cites no legal authority supporting the proposition. Indeed, at all times, Chen bore the burden of proof of demonstrating through credible evidence that she qualified for relief. See INA § 208(b)(1)(B) (burden of proof for asylum). Further, the forensic report was first produced to Chen in August 2006, when the Government filed its motion to reopen, and thus, she has had significant opportunity to rebut its findings.
Accordingly, we hold that substantial evidence supports the agency’s conclusion that Chen’s testimony was not credible, and therefore she could not establish a well-founded fear of future persecution or torture. The petition for review will be denied.
. Rong Qiao Zhang and Ming Fu Zhang are the minor children of Xiao Yan Chen.
. Because Chen is the lead petitioner, we will refer primarily to her throughout our Opinion.
.Chen submitted with her asylum application an abortion certificate and accompanying medical receipt issued by a hospital in Chan-gle City.
. Chen’s mother provided a written statement explaining that she obtained the abortion certificate from a "local government agency.” (A.R.65). However, the document itself states that it was issued by "Changle Hospital.” Accordingly, the statement from Chen's mother does not undermine the findings of the forensic analyst.
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OPINION OF THE COURT
FISHER, Circuit Judge.
A jury convicted Marco Antonio Areva-lo-Caballero (“Arevalo”) of one count of conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846. The District Court sentenced him to 100 months in prison and five years of supervised released. We will affirm the District Court’s judgment.
I.
We -write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
Arevalo worked at a Walmart store, where he befriended a coworker named Caesar Augusto Castano-Cardona (“Casta-ño”) and agreed to Castano’s request to drive a car carrying drugs from New Jersey to Philadelphia, Pennsylvania. Casta-ño received the car from an undercover informant working for Immigration and Customs Enforcement (“ICE”). Unbeknownst to either Castaño or Arevalo, ICE agents in Texas had intercepted the car after it entered the United States from Mexico, replaced the heroin found inside with sham heroin, installed a tracking device and a “kill switch” in it, and airlifted it to New Jersey in hopes of conducting a controlled delivery. On the designated day, Arevalo began driving the car to Philadelphia with Castaño trailing in another vehicle. Law enforcement agents activated the kill switch, disabling the car and forcing Arevalo to pull over. The agents subsequently arrested both Arevalo and Castaño and transported them to an ICE office, where Arevalo signed a waiver-of-rights form and told ICE agents that he knew there were drugs in the car.
Arevalo was thereafter indicted on one count of conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846. Before trial, he moved to suppress the statements he had made to the ICE agents, claiming, contrary to the testimony of one of the agents, that he had signed the waiver only after being interrogated. The District Court credited the ICE agent’s testimony and denied the motion. The jury found Arevalo guilty. Arevalo filed a motion for a new trial, which was denied by the District Court. The District Court sentenced him to 100 months in prison and five years of supervised release. Arevalo has timely appealed his conviction and sentence.1
II.
Arevalo argues that the District Court improperly denied his motion for a new trial and that his sentence is procedurally and substantively unreasonable.
*421A. Motion for a New Trial
Arevalo argues that the District Court erred in denying his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, which provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). “Unlike an insufficiency of the evidence claim, when a district court evaluates a Rule 33 motion it does not view the evidence favorably to the [government, but instead exercises its own judgment in assessing the [gjovernment’s case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002) (citations omitted). A district court may “order a new trial only if it believes that there is a serious danger that a miscarriage of justice has occurred — that is, that an innocent person has been convicted.” United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir.2008) (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.” Id. at 1005 (citation omitted). Rule 33 “motions are not favored and should be granted sparingly and only in exceptional eases.” Id. (internal quotation marks and citation omitted).
The basis for Arevalo’s Rule 33 motion is an inconsistency in the testimony of Newark-based ICE Special Agent Candido Velez, who testified at Arevalo’s suppression hearing that it was he who had installed the tracking device and the kill switch in the car in Texas, while at trial he stated that he had not done so and said, “I misspoke----I meant that to say [sic] the agents in Texas did it.” (App. al76.) Arevalo describes Velez’s testimony at the suppression hearing as false. In his view, because the District Court denied his motion to suppress his statements based on its conclusion that Velez was credible, and because Velez’s purportedly false testimony cast a pall on that credibility determination, the statements should not have been admitted at trial, thus calling the jury’s verdict into question. The District Court denied the Rule 33 motion, reasoning that Arevalo had failed both “to establish a link between Agent Velez’s inconsistent testimony at trial and the admissibility of [Arevalo]’s confession” and to cite “any evidence produced at trial that casts doubt on whether the police unlawfully obtained [the] confession.” (App.a8.)
Even if we agreed with Arevalo’s description of Velez’s testimony at the suppression hearing as false, we would still perceive no grounds for finding that the District Court abused its discretion. First, by urging us to find an abuse of discretion in the District Court’s ruling, Arevalo is essentially inviting us to reconsider the District Court’s factual basis for denying his motion to suppress, but we almost never question a district court’s credibility assessment when it “is based on testimony that is coherent and plausible, not internally inconsistent and not contradicted by external evidence^]” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997) (citation omitted). Arevalo has given us no compelling reason to upset the District Court’s finding.2
*422Second, the inconsistency Arevalo has highlighted for us was put squarely before the jury not only by his own counsel, but by the District Court. The jury chose to convict, and we cannot second-guess that choice merely on the basis of that inconsistency. See United States v. Haut, 107 F.3d 213, 220 (3d Cir.1997) (“[I]t is firmly established that it is the jury’s prerogative to decide all questions of credibility.” (internal quotation marks and citations omitted)).
Finally, even assuming Arevalo’s confession was admitted in error, any such error was harmless beyond a reasonable doubt, as his confession was far from the only evidence of his participation in the conspiracy. See United States v. Price, 13 F.3d 711, 720 (3d Cir.1994). Castaño testified that Arevalo agreed to drive a car loaded with drugs with full knowledge of what was inside. The government also
presented evidence of Castaño taking possession of the car, paying the informant for it, and turning it over to Arevalo. Finally, there was testimony from law enforcement authorities that Arevalo and Castaño were arrested together near the car with drugs inside and that Arevalo was the driver of the car. In brief, the evidence of Arevalo’s guilt, of which his confession represented only a part, was overwhelming. Cf. United States v. Shabazz, 564 F.3d 280, 286 (3d Cir.2009). Accordingly, we conclude that the District Court committed no abuse of discretion and will affirm its denial of Arevalo’s Rule 33 motion.
B. Sentencing
Arevalo attacks his sentence on both procedural and substantive grounds. We review both the procedural and the substantive components of his sentence for reasonableness under an abuse-of-discretion standard. United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). Procedurally, a district court must “follow a three-step sentencing process” by (1) accurately calculating the applicable sentencing Guidelines range; (2) formally ruling on the motions of both parties and stating on the record whether the court is granting a departure and how that departure affects the Guidelines range; and (3) considering all the factors under 18 U.S.C. § 3553(a) and adequately explaining the chosen sentence in a manner that allows for meaningful appellate court review of the reasonableness of the sentence. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (citation omitted). If the district court’s sentence is procedurally reasonable, we then consider its substantive reasonableness, bearing in mind that “[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008) (citation omitted).
Turning to the procedural part of our inquiry, Arevalo argues that the District Court did not formally rule on his motion for a downward departure based on his purported status as a deportable alien and that the Court failed to indicate whether it understood that it had the discretion to grant or deny that motion. Arevalo failed to object at sentencing to the procedures followed by the District Court, and thus our review of these issues is for plain error. United States v. Vazquez-Lebron, 582 F.3d 443, 445 (3d Cir.2009). “Plain error requires the defendant to demonstrate that the district court committed an error that is plain and that affects substantial rights.” Id. at 446 (internal quotation marks, alteration and citation omitted). “An error affects substantial rights when it *423is prejudicial: It must have affected the outcome of the district court proceedings.” Id. (internal quotation marks and citation omitted). “If these requirements are met, we may, at our discretion, grant relief.” Id. (citation omitted).
Although “[o]ur precedent ... clearly requires that district courts engage in the second step — ruling on departure motions — as a part of calculating the applicable range[,]” United States v. Lofink, 564 F.3d 232, 238 (3d Cir.2009) (internal quotation marks, other alteration, citation and footnote omitted), where the government “concede[s] the plausibility of the downward departure[,]” we may “infer that the departure motion ha[s] been denied by the court in recognition of its ability to depart had it chosen to do so[,]” United States v. Jackson, 467 F.3d 834, 839 (3d Cir.2006) (quotation marks, other alteration and citations omitted); see also Lofink, 564 F.3d at 239.
During his sentencing hearing, Arevalo asked the District Court to reduce his sentence in light of his purported deporta-bility. The government evidently considered Arevalo’s request as a motion for a Guidelines departure, arguing that “this case doesn’t present any set of unique circumstances that would take Mr. Areva-lo’s case outside the heartland[.]” (App. a366.) After hearing from the parties, the District Court correctly calculated Areva-lo’s Guidelines range as 87 to 108 months. The Court later addressed Arevalo’s purported deportability, stating as follows:
Now, there are some issues with regard to him as a deportable alien. Well, will there be some period of time following his sentence, and should that time be offset because that would be more punishment, et cetera? I don’t think that this Court has to address that, and I think that, because there is an inexactitude with regard to the amount of time that he may spend over and above this sentence in preparing to be deported, that it’s folly for this Court to try and build in some sort of consideration of that into a sentence.
(App.a374.)
Because the government rather clearly conceded the plausibility of the District Court’s discretion to depart downward, we can infer on this record that the District Court understood it had such discretion but simply chose not to exercise it, and thus there was no error at the second procedural step.3 See Jackson, 467 F.3d at 840; United States v. Stevens, 223 F.3d 239, 247-48 (3d Cir.2000).
Turning next to the substantive component of our analysis, Arevalo contends that his 100-month prison sentence is unreasonable because the District Court did not adequately account for what he describes as his limited role in the conspiracy. Rather than point us to any relevant legal authority to compel the conclusion that the District Court abused its discretion, Are-valo has merely directed our attention to the decisions of district courts in other circuits sentencing defendants also convicted of drug offenses. That approach is flawed, as no district court’s sentencing discretion is bound by another district court’s sentencing decision. Having comprehensively reviewed the record and concluded that Arevalo’s within-Guidelines sentence “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218.
*424III.
For the foregoing reasons, we will affirm the District Court’s judgment.
. 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.
. The inconsistency between Velez’s suppression hearing and trial testimony regarding who outfitted the car in Texas bore on a peripheral issue wholly unconnected to the central factual dispute at the suppression hearing: whether Arevalo signed the waiver before or after being interrogated. Even if the District Court had learned during the suppression hearing that there was no truth to Velez’s statement that it was he who had outfitted the car instead of his ICE colleagues in Texas, there is no basis for concluding that the District Court would not have found Velez’s proffered sequence of events more credible than Arevalo’s, especially in light of Ve*422lez’s later recognition of and explanation for his mistake.
. We do not mean to imply that a defendant’s deportability is necessarily a permissible ground for a downward departure. That question is still an open one in this Circuit, see United States v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir.1998), and we need not resolve it here.
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OPINION OF THE COURT
SCIRICA, Chief Judge.
Khar Abdulah and his wife brought suit in the Philadelphia Court of Common Pleas against Appellants Woodlake Management, Cliveden Realty Corp., Cliveden 2002, L.P. d/b/a Cliveden Apartments, and Cliveden, L.P. (collectively “Woodlake”) for personal injuries sustained in a shooting at the Cliveden Apartments. Appellee Alea London Ltd. (“Alea”), Woodlake’s insurer, sought a declaratory judgment in federal court to establish that an assault and battery exclusion in the insurance policy discharged its duty to defend or indemnify Woodlake. The United States District Court for the Eastern District of Pennsylvania granted Alea’s motion for judgment on the pleadings. We will affirm.
I.
On July 13, 2005, Abdulah was shot multiple times by an unknown assailant at the Cliveden Apartments, a property owned or maintained at all times by Woodlake. Ab-dulah and his wife filed suit asserting multiple counts of negligence against Wood-lake. In particular, Abdulah claimed Woodlake failed to provide or repair a working security lock, creating a dangerous and defective condition on the premises and enabling the assailant to enter the apartment building.1 Alea brought a declaratory judgment action in federal court arguing an exclusion in the policy for claims arising out of or related to an assault or battery, including a failure to prevent or suppress an assault or battery, exempted it from its duty to defend Wood-lake in Abdulah’s suit. The exclusion provides:
This insurance does not apply to any claim arising out of an assault and/or battery regardless of culpability or intent or out of a physical altercation or out of any act or failure to act to prevent or suppress such assault and/or battery or a physical altercation whether caused by the insured, an employee, a patron, or any other person.... The company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages arising out of an assault and/or battery or physical altercation. This exclusion applies as well to any claims by any other person, firm or organization, asserting rights derived from, or contingent upon, any person *429asserting a claim arising out of an assault and/or battery or a physical altercation, and specifically excludes from coverage claims for: emotional distress, or for loss of ... consortium____
This exclusion applies to all causes of action arising out of an assault and/or battery regardless of culpability or intent or out of a physical altercation including, but not limited to, allegations of negligent hiring, placement, training, or supervision, or to any act, error, or omission relating to such an assault and/or battery or a physical altercation.
Woodlake argued the exclusion did not apply because Abdulah alleged Woodlake’s negligence caused his injuries. The District Court granted Alea’s motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), concluding that because Abdulah’s injuries arose from the assault and not directly from Woodlake’s alleged negligence, the exclusion applied. Woodlake now appeals.2
II.
Our review of a Rule 12(c) motion is plenary. Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.2008). Judgment on the pleadings “will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Id. (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir.1988)). We must view all facts and draw all inferences in the light most favorable to the non-moving party. Id.
When interpreting an insurance contract under Pennsylvania law, which all parties agree governs the dispute, the court must ascertain and give effect to the parties’ intent as manifested in the terms of the policy. Donegal Mut. Ins. Co. v. Baumhammers, 595 Pa. 147, 938 A.2d 286, 290 (2007). Where the contract language is ambiguous, we must construe that provision in favor of the insured. Minn. Fire & Cas. Co. v. Greenfield, 579 Pa. 333, 855 A.2d 854, 861 (2004). But, where the language is clear and unambiguous, we must give effect to it. Id. If an insurer relies on a policy exclusion as an affirmative defense to deny coverage, it bears the burden of proving the exclusion applies.3 Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The duty of an insurer to defend the insured applies to any suit in which the complaint alleges injuries that may potentially fall within the grant of coverage. Baumhammers, 938 A.2d at 290-91. The court must look beyond the cause of action pled to the factual allegations included in the complaint. Id. at 291.
The exclusion denies coverage for claims “arising out of’ an assault or battery. The term “arising out of’ is interpreted in terms of “but for” causation. See Madison Constr., 735 A.2d at 109-10. Therefore, if an assault or battery was a “but for” cause of the plaintiffs injuries, an assault and battery exclusion will apply to allegations that the insured’s negligence contributed to the injuries. See Acceptance Ins. Co. v. Seybert, 757 A.2d 380, 383 (Pa.Super.Ct.2000). The insurer only owes a duty to defend if the complaint alleges the insured’s negligence itself directly led to the injuries. See QBE Ins. Corp. v. M & S Landis Corp., 915 A.2d 1222, 1229 (Pa.Super.Ct.2007).
*430The parties’ dispute on appeal centers on the application of two Pennsylvania Superior Court cases: Seybert and QBE. In Seybert, the plaintiff brought suit against Belmont Bar, alleging it negligently served alcohol to five visibly intoxicated men who subsequently attacked him. 757 A.2d at 381. Belmont argued an assault and battery exclusion did not apply because the claims were based on Belmont’s negligence. Id. at 383. The court disagreed, holding that because the plaintiffs injuries resulted solely from the assault and battery, Belmont’s negligence was merely a contributing factor and not a direct cause of the injuries. Id.
In QBE, the underlying complaint alleged employees of defendant Fat Daddy’s Nightclub forcibly ejected a patron and improperly restrained him, eventually smothering him to death. 915 A.2d at 1224. The complaint alleged Fat Daddy’s negligently restrained the patron and negligently trained and hired its staff, causing the patron’s death. Id. The court held the exclusion did not apply because the complaint alleged the injuries “arose from the alleged negligence,” not from an assault or battery. Id. at 1229. Accordingly, the alleged negligence was a direct cause of the injuries, triggering the duty to defend. Id.
All injuries alleged in this complaint are the result of the shooting itself,4 and accordingly, the assault was a “but for” cause of Abdulah’s injuries. There was no allegation in the complaint that Woodlake’s negligence directly caused his injuries or caused any independent harm, as there was in QBE. Rather, Woodlake’s failure to provide a working security lock contributed to the shooting in much the same way as Belmont’s negligent selling of alcohol to visibly intoxicated individuals contributed to the plaintiffs injuries in Seybert. Moreover, Woodlake’s alleged negligence only relates to its failure to prevent or suppress the assault. The assault and battery exclusion encompasses claims arising both from an assault or battery and from a failure to prevent or suppress an assault or battery. This language unambiguously bars coverage for Abdulah’s claims, and accordingly, Alea has no duty to defend or indemnify Woodlake.5
III.
For the foregoing reasons, we will affirm the District Court’s grant of Judgment on the Pleadings.
. Abdulah's additional allegations of negligence all related to the inadequate security lock. For example, he alleged Woodlake negligently failed to warn him of the condition and negligently failed to train its employees to repair the lock.
. The District Court had jurisdiction under 28 U.S.C. § 1332(a)(2). We have jurisdiction over the appeal under 28 U.S.C. § 1291.
. Alea does not argue Abdulah’s injuries do not fall under the policy’s grant of coverage, see Baumhammers, 938 A.2d at 293 (holding an intentional act by a third party still constituted an "occurrence” under an insurance contract), but rather claims only that the assault and battery exclusion bars coverage.
. The shooting constituted an assault under Pennsylvania law. See 18 Pa. Const. Stat. § 2701 (defining assault as "negligently causing] bodily injury to another with a deadly weapon”).
. Abdulah's wife also brought a claim against Woodlake for loss of consortium. This claim derives from the assault, and coverage for it is explicitly barred by the language of the exclusion.
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ORDER
Petitioner having paid the required filing fee and having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner should compute the due date for filing its brief 21 days from the date of filing of this order.
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*461Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Doris S. Grant appeals the district court’s order adopting the magistrate judge’s recommendation and granting the Appellees’ summary judgment motion in Grant’s employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Grant v. City of North Charleston Hous. Auth., No. 2:06-cv-03242-CWH, 2008 WL 4372980 (D.S.C. Sept. 22, 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:
Quirin Weatherspoon appeals the district court’s order dismissing his complaint, pursuant to 28 U.S.C. § 1915A (2006), as frivolous. We have reviewed the record and find no reversible error. Ac*462cordingly, we deny all of Weatherspoon’s pending motions and affirm for the reasons stated by the district court. Weatherspoon v. Hay, No. 1:09-cv-007S2-CMH-IDD (E.D. Va. filed July 16, 2009 & entered July 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James E. Slate appeals the district court’s order granting the Defendant’s motion for summary judgment in Slate’s civil actions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Slate v. Potter, Nos. 1:04-cv-00782-JAB; 1:05-cv-00221-JAB-PTS (M.D.N.C. Sept. 80, 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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Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Vang seeks to appeal the district court’s order overruling Vang’s objections to the magistrate judge’s order denying his “Motion in Abeyance and/or Stay of Habeas Corpus.” This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Vang seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we deny Vang’s motion for stay pending appeal and dismiss the appeal for lack of jurisdiction. Vang’s motion for a certificate of appealability is denied as unnecessary. We dispense -with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Arthur Walton appeals the district court’s order denying his motion filed pursuant to Fed.R.Crim.P. 35 (applicable to offenses committed before November 1, 1987). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Walton, No. 1:84-cr-00100-IMK-JES-1 (ND.W.Va. July 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricardo Gonzalez appeals the district court’s order entered pursuant to 18 U.S.C. § 4245 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gonzalez, No. 5:08-hc-02145-BR (E.D.N.C. Jan. 7, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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*461Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Doris S. Grant appeals the district court’s order adopting the magistrate judge’s recommendation and granting the Appellees’ summary judgment motion in Grant’s employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Grant v. City of North Charleston Hous. Auth., No. 2:06-cv-03242-CWH, 2008 WL 4372980 (D.S.C. Sept. 22, 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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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477544/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James E. Slate appeals the district court’s order granting the Defendant’s motion for summary judgment in Slate’s civil actions. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Slate v. Potter, Nos. 1:04-cv-00782-JAB; 1:05-cv-00221-JAB-PTS (M.D.N.C. Sept. 80, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477548/
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Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Milton Orrett Cole, a native and citizen of Jamaica, has petitioned for review of an order of the Board of Immigration Appeals affirming the Immigration Judge’s order of removal. Cole contends that his conviction in Virginia of possession of marijuana with intent to distribute does not qualify as an aggravated felony and that he is thus not removable from the United States. We have reviewed the administrative record and Cole’s various contentions and uphold the Board’s finding that Cole’s conviction is an aggravated felony that establishes his removability. See 8 U.S.C. § 1101(a)(43)(B) (2006); 21 U.S.C.A. § 841(a)(1) (West Supp.2009).
Accordingly, we deny the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477550/
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Arthur Walton appeals the district court’s order denying his motion filed pursuant to Fed.R.Crim.P. 35 (applicable to offenses committed before November 1, 1987). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Walton, No. 1:84-cr-00100-IMK-JES-1 (ND.W.Va. July 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477557/
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PER CURIAM: *
The attorney appointed to represent Ruben Dario Reyes, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Reyes has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except trader the limited circumstances set forth in 5th Cir. R. 47.5.4.
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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/8477560/
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PER CURIAM: *
The attorney appointed to represent Keisha Guidry has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Guidry has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477561/
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PER CURIAM: *
The attorney appointed to represent April Wooldridge has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wooldridge has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477564/
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PER CURIAM: *
The attorney appointed to represent Jorge Israel Cruz has moved for leave to *564withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cruz has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *564published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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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/8477566/
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PER CURIAM: *
The attorney appointed to represent Jackie Johnson has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Johnson has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477568/
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PER CURIAM: *
The attorney appointed to represent Stacy James Bellamy has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Bellamy has filed a response. Our independent review of the record, counsel’s brief, and Bellamy’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477569/
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PER CURIAM: *
The attorney appointed to represent Andres Jose Rivera has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rivera has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477558/
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PER CURIAM: *
The attorney appointed to represent Ruben Dario Reyes, Jr., has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Reyes has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except trader the limited circumstances set forth in 5th Cir. R. 47.5.4.
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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/8477562/
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PER CURIAM: *
The attorney appointed to represent April Wooldridge has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wooldridge has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477565/
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PER CURIAM: *
The attorney appointed to represent Jackie Johnson has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Johnson has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477570/
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PER CURIAM: *
The attorney appointed to represent Andres Jose Rivera has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rivera has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477573/
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PER CURIAM: *
The attorney appointed to represent Rodney Ervin has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ervin has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477576/
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PER CURIAM: *
The attorney appointed to represent Jose Luis Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477580/
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PER CURIAM: *
The Federal Public Defender appointed *583to represent Fernando Amador-Lorenzo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Amador-Lorenzo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477582/
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PER CURIAM: *
The Federal Public Defender appointed to represent Alejandro Vazquez-Nava has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Vazquez-Nava has *585not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477583/
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PER CURIAM: *
The Federal Public Defender appointed to represent Jose Pablo Rodriguez-Corde-ro (Rodriguez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rodriguez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *586the limited circumstances set forth in 5th Cir. R. 47.5.4.
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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/8477622/
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ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477625/
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ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477572/
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PER CURIAM: *
The attorney appointed to represent Christopher Dion Mancha has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mancha has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th CiR. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477575/
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PER CURIAM: *
The attorney appointed to represent Jose Luis Garcia has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Garcia has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477577/
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PER CURIAM: *
The Federal Public Defender appointed to represent Guadalupe Martinez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Martinez has filed a response. Our independent review of the record, counsel’s brief, and Martinez’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477579/
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PER CURIAM: *
The Federal Public Defender appointed *583to represent Fernando Amador-Lorenzo has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Amador-Lorenzo has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8477581/
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PER CURIAM: *
The Federal Public Defender appointed to represent Alejandro Vazquez-Nava has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Vazquez-Nava has *585not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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01-04-2023
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11-05-2022
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