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https://www.courtlistener.com/api/rest/v3/opinions/8477584/ | 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *586the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477585/ | PER CURIAM: *
The Federal Public Defender appointed to represent Armando Ramirez-Sagas-tume 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). Ramirez-Sagas-tume 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477587/ | PER CURIAM: *
The Federal Public Defender appointed to represent Oscar Vasquez Mendez 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). Vasquez Mendez 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477591/ | ORDER
Gilbert Chadwick, an Illinois inmate, filed a civil rights suit under 42 U.S.C. § 1983 against medical staff and prison administrators for their alleged deliberate indifference to his need for surgery to repair an inguinal hernia. At initial screening, see 28 U.S.C. § 1915A, the district court dismissed Chadwick’s complaint. Chadwick then moved for reconsideration and in the motion asked for leave to amend his complaint. The court denied the motion. On appeal Chadwick challenges the denial of his motion to reconsider, including the request to amend his complaint. We affirm the judgment.
Chadwick filed his complaint in January 2009. He alleged that a year earlier he started complaining to medical staff that he was experiencing severe pain as a result of his hernia and requested surgery. In the months that followed, Chadwick said, three different doctors examined him and concluded that surgery was not necessary because his hernia was reducible. And when he filed suit, Chadwick added, his prison doctor was regularly monitoring his condition and updating his prescription *689for pain medication. Nevertheless, Chadwick claimed that this treatment was constitutionally deficient because he continued to experience pain and was reliant on pain medication which, he assumed, would eventually damage his liver and stomach.
The district court concluded that Chadwick’s allegations were insufficient to state an Eighth Amendment claim. The court reasoned that most of the defendants had no personal involvement in Chadwick’s medical care, and that Chadwick had pleaded himself out of court with regard to the defendant doctors because his allegations showed that his condition was not sufficiently serious and that he was being treated, albeit not with his preferred course of treatment. The court entered final judgment in the case on the same day that it dismissed Chadwick’s complaint.
Chadwick then filed a timely motion for reconsideration. See Fed.R.CivP. 59(e). He conceded that his complaint did not state a claim for deliberate indifference, but he requested leave to amend and also submitted medical records showing that he received corrective surgery for his hernia approximately six weeks after he filed his complaint. In addition Chadwick tendered synopses of legal decisions recognizing that delays in providing treatment can violate the Eighth Amendment. Days later Chadwick also submitted a proposed amended complaint, which mostly tracked his initial complaint but altered the legal theory to allege a delay in care. The district court concluded that its dismissal was correct and denied Chadwick’s motion for reconsideration. It is unclear whether the court had received Chadwick’s amended complaint by the time it denied the motion.
In this appeal Chadwick argues that the district court should have granted his postjudgment motion because he submitted what he terms “newly discovered evidence,” i.e., the medical records showing that he eventually received surgery. Although newly discovered evidence can be the basis for a Rule 59 motion, United States v. Resnick, 594 F.3d 562, 568 (7th Cir.2010), the medical records Chadwick submitted — and his new legal theory of unconstitutional delay — “could and should” have been presented earlier, see id.; Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir.2007); In re Prince, 85 F.3d 314, 324 (7th Cir.1996). The surgery documented in those records occurred after Chadwick filed his complaint, but before he successfully moved to supplement the record with exhibits, so he had an opportunity to submit the records earlier, or at least to alert the court to their existence. He also should have added any allegations about the delay in receiving surgery at that time. Moreover, the records do not strengthen Chadwick’s claim of deliberate indifference. We now know that his hernia was repaired six months before his lawsuit was dismissed, so in hindsight it is clear that the condition had become more serious than the district court believed when it ruled. See Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir.2006). But the new records do not suggest that doctors ignored Chadwick’s condition or waited unreasonably long to opt for surgery. On the contrary, the records undermine this prong of Chadwick’s claim: once his hernia became difficult to reduce, he was given surgery. See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591-92 (7th Cir.1999) (rejecting deliberate indifference claim where prison staff was “responsive” to plaintiffs medical needs); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997) (concluding that plaintiffs deliberate indifference claim failed where he “repeatedly received treatment”).
So even with “new” evidence and a revised theory of delay in care, Chadwick’s claim still could not have "withstood screen*690ing or a motion to dismiss. At best, he alleges disagreement with medical professionals about his treatment needs, and a disagreement with the exercise of medical judgment does not state a claim for deliberate indifference. See Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.2003). Accordingly, the district court did not abuse its discretion in denying Chadwick a second bite at the apple. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.2008).
We AFFIRM the district court’s judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477593/ | ORDER
Diaunte Shields pleaded guilty to possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). Two prior drug convictions, both felonies, qualified him as a career offender under U.S.S.G. § 4Bl.l(a). And because his new crime involved 50 or more grams of crack and thus carried a possible life sentence, 21 U.S.C. § 841(b)(l)(A)(iii), application of the career-offender guideline meant an offense level of 37, or 34 after a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 3El.l(a)-(b), 4Bl.l(b). That offense level, coupled with the criminal history category of VI mandated by the career-offender guideline, yielded an imprisonment range of 262 to 327 months. See U.S.S.G. § 4Bl.l(b), Ch. 5 Pt. A. At sentencing the district court acknowledged that applying the career-offender guideline “significantly increased” Shields’s imprisonment range. But the court concluded that a sentence in the middle of that range, 290 months’ imprisonment, was needed to achieve parity with similarly situated offenders and deter him from committing further crimes. See 18 U.S.C. § 3553(a).
Shields’s sole argument on appeal is that the sentencing court possessed — and should have exercised — discretion to reject the differences in imprisonment ranges for offenders involved with crack versus those involved with like amounts of powder cocaine. He relies principally on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which holds that a sentencing judge may conclude, even in a “mine-run case,” that the crack-*693to-powder ratio underlying the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for that particular defendant. Id. at 109-10, 128 S.Ct. 558; see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.2008). Shields reasons that the same principle applies to him because the statutory penalty in § 841(b)(1) that determined his career-offender range also draws what he views as an unwarranted distinction between crack and powder cocaine.
Yet Shields did not ask the district court to impose a below-range sentence on the basis of a perceived disparity in the career-offender imprisonment ranges for purveyors of crack and powder. In general, a district court cannot be faulted for not anticipating arguments that a defendant might have made but did not make in favor of a lower sentence, United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and even plain-error review would not benefit Shields, see United States v. Hearn, 549 F.3d 680, 684 (7th Cir.2008). Because Shields never asked the district court to exercise any purported discretion to disagree with the career-offender guideline, he would not be entitled to a remand even if the district court did possess such discretion.
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477595/ | ORDER
James Govan pleaded guilty to possessing with the intent to distribute crack cocaine and carrying a firearm during and in relation to a drug trafficking crime, but in doing so reserved the right to appeal the district court’s denial of his motion to suppress the crack and gun. Govan appeals, and we affirm.
Just before midnight on January 19, 2008, Officers Chris Drake and Doug Schwertfager of the Indiana State Excise Police were on patrol across the street from a liquor store in Fort Wayne, Indiana. From their unmarked vehicle and with the aid of binoculars, the officers observed two males who appeared to be under the age of 21 walking along the well-lit sidewalk in front of the store. The men stopped, faced each other, and appeared to exchange something. One of them, Mar-quel Marsh, then entered the liquor store, while the other man, later identified as James Govan, stood behind a pay phone on the storefront beyond the store clerk’s view. After a few minutes, Marsh exited the store and met Govan. The two faced each other, made hand motions consistent with the exchange of an item, and resumed walking down the sidewalk.
*695Although they did not see the items the young men exchanged, the officers suspected that they had witnessed the furnishing of alcohol to a minor.** As the men began to cross the street, the officers drove toward them and activated their vehicle’s emergency lights. The officers exited the vehicle, identified themselves as law enforcement, and asked the men for some form of identification. Neither had any. Officer Schwertfager dealt with Marsh and verified his identity and age (20) through the Indiana Bureau of Motor Vehicles database. Marsh informed Officer Schwertfager that he had purchased condoms at the liquor store and showed him the condoms and a receipt. Meanwhile, Officer Drake dealt with Govan who, after about five minutes of refusing to disclose his name, identified himself as Marcus Williams and gave a birth date of March 17,1985. Officer Drake was unable to locate a person by that name and birth date in the Bureau of Motor Vehicles database. He then contacted Officer Chris Hoffman of the Fort Wayne Police Department who ran the name and birth date through a local database. Officer Hoffman was unable to locate a black male named Marcus Williams born on March 17, 1985, in the local system; he did discover, however, that there was an active arrest warrant for a black male who had that birth date — James Govan. Officer Hoffman relayed that information to Officer Drake, accessed Govan’s photo by computer, and then informed Officer Drake that Govan had a scar above his eye. Officer Drake asked Govan to remove his hat and glasses. When the man complied, Officer Drake observed a scar above his left eye. Officer Hoffman then arrived on the scene and confirmed that the man matched the computer photo of James Govan. In order to be certain, Officer Hoffman asked the man for his social security number. Officer Hoffman checked the number he was given against the number from the James Govan entry in the local database and discovered that they matched except for two digits that had been transposed. The officers then placed Govan under arrest based on the outstanding warrant and for giving false information to police during the investigation of a crime. (Twenty minutes had elapsed between the initiation of the stop and Govan’s arrest.) Officer Hoffman searched Govan and discovered baggies of crack cocaine and marijuana. After Govan was transported to jail, Officer Hoffman searched him a second time and discovered a handgun in his coat pocket.
A grand jury indicted Govan for possessing with the intent to distribute crack cocaine (Count 1), being a felon in possession of a firearm (Count 2), and carrying a firearm during and in relation to a drug trafficking crime (Count 8). Govan filed a motion to suppress the crack and the gun, alleging they were the fruits of an unlawful investigatory stop. Following a hearing, the district court denied the motion. Go-van then pleaded guilty to Counts 1 and 3 of the indictment pursuant to a conditional guilty plea wherein he reserved his right to appeal the district court’s denial of his motion to suppress. The district court sentenced Govan to a term of 33 months’ imprisonment on Count 1 and a consecutive term of 60 months’ imprisonment on Count 3. Govan appeals the denial of his motion to suppress the crack and handgun.
On appeal, Govan argues that the crack cocaine and gun should have been suppressed because their discovery resulted from the officers’ violation of his Fourth Amendment right to be free from unreasonable seizures. Specifically, he contends *696that Officers Schwertfager and Drake stopped him without reasonable suspicion that he was committing (or had committed) a crime. And even if the stop was justified at its inception, says Govan, the duration of the stop was unreasonable.
In reviewing a district court’s denial of a motion to suppress, we examine its conclusions of law de novo and its factual findings for clear error, giving special deference to its credibility determinations. United States v. Burnside, 588 F.3d 511, 516-17 (7th Cir.2009). Govan does not challenge the district court’s findings of fact and concomitant credibility determinations. Hence, our review is limited to the district court’s legal conclusion that the stop comported with the Fourth Amendment.
Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a law enforcement officer can conduct an investigatory stop of a suspect if he has a reasonable suspicion based on particular, articu-lable facts that criminal activity is afoot. United States v. Hampton, 585 F.3d 1033,-1038 (7th Cir.2009). Whether an officer possessed reasonable suspicion is an objective inquiry based on the totality of the circumstances known to the officer at the time of the stop. United States v. Hicks, 531 F.3d 555, 558 (7th Cir.2008). The officer’s action must be justified at its inception and reasonably related in scope to the circumstances that warranted the stop initially. Jewett v. Anders, 521 F.3d 818, 824 (7th Cir.2008). The duration of the stop must be reasonable. United States v. Jackson, 300 F.3d 740, 746 (7th Cir.2002).
Under Indiana law, it is a crime for a minor *** to knowingly possess an alcoholic beverage. Ind.Code § 7.1-5-7-7(a)(1). The observations of the experienced excise officers gave rise to a reasonable suspicion that Govan was a minor in possession of alcohol.**** Standing in the well-lit area near the liquor store, Govan appeared to be under the age of 21 — he was in fact only 22. It was almost midnight when the officers saw Govan exchange an item with Marsh. While Marsh went inside the store, Govan stood behind a pay phone out of the store clerk’s view, something a minor not wishing to arouse the suspicion of store personnel might do. After Marsh had tarried a few minutes in the store, he came out and had a face-to-face encounter with Govan; the two again appeared to exchange an item. The officers did not actually see any items exchanged and the men’s hand movements were susceptible of an innocent explanation, but given the circumstances it was reasonable for them to think that Govan had supplied Marsh with money to buy alcohol and that Marsh had done so and delivered it to him. See Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (Terry stops are appropriate even where suspect’s conduct is ambiguous and subject to an innocent explanation); United States v. Grogg, 534 F.3d 807, 810 (7th Cir.2008) (“While certain behavior in isolation may have an innocent explanation, that same behavior, when viewed in the context of other factors at play, may amount to reasonable suspicion.”). Hence, the officers had a reasonable suspicion that Govan was a minor in possession of an alcoholic beverage. Accordingly, at its inception the investigatory stop of Govan did not offend the Fourth Amendment.
Govan argues that even if the stop were initially justified, the duration of the stop was unreasonable because the officers *697continued to detain him after they discovered that Marsh was 20 years old and had purchased condoms in the liquor store. “There is no bright-line rule as to how long an investigative detention may last; instead we look to whether the police diligently pursued a means of investigating that was likely to confirm or dispel quickly their suspicions.” United States v. Adamson, 441 F.3d 513, 521 (7th Cir.2006). While Officer Sehwertfager was dealing with Marsh, Officer Drake attempted to learn Govan’s identity, which is generally permissible during an otherwise valid stop. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (observing that “it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop”). The fact that the officers learned that Marsh was a minor did not dispel their reasonable suspicion that Govan was a minor in possession of alcohol: Marsh still could have purchased alcohol in the store, perhaps with a fake identification or none at all, and given it to Govan. And the condoms and receipt that Marsh produced did not necessarily dispel their reasonable suspicion that Govan was a minor in possession of alcohol: the apparent exchanges between Govan and Marsh before and after Marsh’s visit in the store were still unexplained. Moreover, within five minutes of the stop, Govan refused to reveal his name and then gave a false name that did not show up in the Bureau of Motor Vehicles database. At that point, there was ample reason for Officer Drake to be suspicious that Govan was wanted for another crime, see id., or had given him false information during the investigation, which is itself a misdemeanor offense in Indiana, Ind.Code § 35-44-2-2(d)(l). The officers therefore had reasonable suspicion that Govan had committed a separate offense, which provided additional grounds for extending the stop and investigating further. They investigated the new suspicion by searching the local database. After learning Govan might be wanted on an arrest warrant, they looked to see if he had a scar above his eye and checked his social security number. All of these measures were aimed at confirming or dispelling the officers’ suspicions raised by Govan’s conduct, and Govan’s continued detention (for less than 15 minutes) while these steps were taken was reasonable. See Cady v. Sheahan, 467 F.3d 1057, 1063 (7th Cir.2006) (officers do not exceed the permissible duration of a stop where the extension of the stop is attributable to the suspect’s evasive conduct).
In sum, the stop was lawful both at its inception and in its duration and thus provides no basis for excluding the crack and gun.***** Accordingly, the district court properly denied Govan’s motion to suppress. We AFFIRM.
In Indiana, it is a misdemeanor for a person to furnish an alcoholic beverage to a minor. Ind.Code § 7. l-5-7-8(a). On the other side of the coin, it is also a misdemeanor for a minor to knowingly possess an alcoholic beverage. Id. § 7.1-5-7-7(a)(l).
A minor is a person less than 21 years of age. Ind.Code § 7.1-1-3-25.
the time, Officer Drake was an 11-year veteran of the Indiana State Excise Police. Officer Schwertfager had been on the job for two and a half years.
Because the stop was at all times consistent with the Fourth Amendment, we need not decide whether the outstanding arrest warrant might have been an intervening circumstance sufficient to dissipate the taint of an illegal stop and thus avert suppression of the crack cocaine and gun. See United States v. Green, 111 F.3d 515 (7th Cir. 1997). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477597/ | ORDER
Hillard Quint has sued the Village of Deerfield, Illinois, and two of its police officers individually. As relevant here, he claims under 42 U.S.C. § 1988 that the officers violated his constitutional rights at the time of his arrest as they entered and searched his home without consent or without a warrant, and seized personal property from the residence; these actions, Quint maintains, were the policy of the Deerfield Police Department. Quint’s amended complaint, filed by counsel, also includes state-law claims for defamation, intentional infliction of emotional distress, and civil conspiracy. The district court dismissed Quint’s illegal search claim on the basis of a qualified-immunity defense raised by the individual defendants and the court dismissed all other federal claims for failure to state a claim. See Fed. R.Civ. P. 12(b)(6). The court also concluded that all of the state-law claims, other than the defamation claim, were time-barred, but as to that claim the court declined to exercise supplemental jurisdiction because all claims based in federal law had been dismissed. See 28 U.S.C. § 1367(c)(8); Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir.2009). Quint appeals. We affirm in part and vacate and remand in part.
Because the district court dismissed Quint’s complaint at the pleading stage, we accept the facts in the complaint as true and construe them in the light most favorable to Quint. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008); Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir.2007). In February 2007 the individual defendants, both detectives from the Village of Deerfield, arrested Quint on the street outside his apartment in Chicago, Illinois. The detectives, Juan Mazarie-gos and Vince Nichols, informed Quint they were acting on an arrest warrant issued in Georgia three years earlier for writing a bad check. They told Quint they were going to hold him until Chicago police arrived to take him into custody. While they were waiting, the detectives frisked Quint and searched his car. They did not find any contraband, but in a pants pocket they did find his house keys, which they then used to enter and search his apartment without consent or a warrant. The items seized by Mazariegos and Nichols included financial documents, tax records, a computer, and photographs; Quint was never charged with a crime in the detectives’ jurisdiction, and the items taken from his home were never used in any prosecution. Instead, the detectives turned some of the items they confiscated over to various media sources, as well as accusations that Quint was responsible for swindling multiple women out of millions of dollars. Mazariegos went a step further; he used a seized picture of Quint to make fliers calling Quint a “fraud.” The police department has never returned the illegally seized property to Quint nor inventoried the confiscated property.
Based on these events, Quint sued the Village of Deerfield and the two detectives individually. In his claim against Mazarie-gos and Nichols, Quint alleged that they violated his rights under the Fourth Amendment by arresting him, entering and searching his home, and seizing his •property. The district court dismissed this claim, reasoning that the validly issued arrest warrant provided undisputed probable cause to justify the arrest, and that the detectives were entitled to qualified immunity for the search of the house. The district court dismissed Quint’s claim dealing with the seizure of his personal property on the assumption that Quint was required to plead, but did not refer to any allegations regarding the inadequacy of state remedies. As for his claim against *700the municipality, Quint alleged that the Village of Deerfield had violated his constitutional rights by maintaining a policy that condoned (among other things) harassment, defamation, and improper and illegal arrests and seizures. The district court rejected this claim on the grounds that Quint’s allegations were vague and failed to challenge a municipal policy implemented by an individual with policy-making authority. In addition to these federal claims, Quint asserted supplemental state-law claims for defamation, intentional infliction of emotional distress, and civil conspiracy. The court concluded that only the defamation claim was timely, but with only that claim remaining declined to exercise supplemental jurisdiction.
Our review of a dismissal under Rule 12(b)(6) is de novo. See, e.g., Christensen, 483 F.3d at 458. A complaint is sufficient if it includes enough factual content to “ ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That standard is met when the factual content allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).
We start with the one claim that the individual (police) defendants have, from the beginning, effectively conceded is sufficient to satisfy Rule 12(b)(6): that Mazariegos and Nichols entered Quint’s home without consent or a warrant and confiscated several items of his personal property. The two detectives have never disputed that, if Quint’s allegations are true, they violated the Fourth Amendment; the detectives instead maintain that they are shielded from liability by the affirmative defense of qualified immunity. Mazarie-gos and Nichols contend, as they did in the district court, that reasonable police officers could have believed that the discovery of house keys during a search incident to arrest authorized a warrantless, noncon-sensual entry and search of the home unlocked by those keys. This contention is without merit, and the district court erred in accepting it as a basis for dismissal.
The defendants tell us that they believed “it was within their discretion” to search Quint’s home “based on the Georgia warrant and the nature of the underlying crime (bad checks).” They stop short of asserting that they had probable cause to search the house, but if they did it would not matter. An arrest warrant is not a warrant to search for evidence, and even if Quint had been seized in his apartment, the arrest warrant would not have authorized a search beyond a “cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 627-28 (7th Cir.2008); Cuevas v. De Roco, 531 F.3d 726, 735 (9th Cir.2008); El Bey v. Roop, 530 F.3d 407, 419-420 (6th Cir.2008). More to the point, although an arrest warrant allows entry into the suspect’s home to effect the arrest, Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), Quint alleges that he was in custody and removed from the scene before the detectives entered his home, so the arrest warrant cannot help the detectives.
“Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right,” Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009); see Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir.2009), and here the detectives’ conduct was “so egregious that no reason*701able person could have believed that it would not violate clearly established rights,” Smith v. City of Chicago, 242 F.3d 787, 742 (7th Cir.2001). It has long been established that warrantless entries and searches of a residence are “presumptively unreasonable” under the Fourth Amendment. See, e.g., Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004); Payton, 445 U.S. at 586, 100 S.Ct. 1871; Green v. Butler, 420 F.3d 689, 694 n. 4 (7th Cir.2005). Of course, various exceptions to this rule are also clearly established. Warrantless entries are permitted to prevent the imminent destruction of evidence, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); United States v. Bell, 500 F.3d 609, 612 (7th Cir.2007), but even then the police may do no more than conduct a protective sweep and then secure the premise until a search warrant can be obtained, Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); United States v. Alexander, 573 F.3d 465, 476 (7th Cir.2009). Nothing in Quint’s complaint remotely hints at the possibility of exigent circumstances, and the defendants have not suggested any. They arrested Quint on the street outside his apartment on a three-year-old fugitive warrant, and by the time of the entry and search, he was in custody and had been removed from the scene. There was no risk to the detectives’ safety, no obligation to protect the public safety, and no need to prevent the destruction of evidence because no one was in the house at the time of the arrest. “[A]n arrest on the street does not create an exigent circumstance which allows the police to conduct a war-rantless search of the arrestee’s house,” United States v. Marshall, 157 F.3d 477, 483 (7th Cir.1998), and that rule of law is not weakened by the discovery of Quint’s house keys. Under these circumstances, a reasonable officer — having already arrested Quint and removed him from the area— would have known that a search warrant was needed to enter and scour his home for evidence. The facts may not be as Quint alleges, but if they are, the officers have no entitlement to the shield of qualified immunity.
We also disagree with the treatment of Quint’s claim regarding the taking of his property. Quint’s appellate brief makes clear that he is concerned with the seizure of his property that occurred immediately following his arrest. The district court analyzed this claim under the rubric of due process, but unreasonable seizures of personal property violate the Fourth Amendment. See United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. James, 571 F.3d 707, 713 (7th Cir.2009). Accordingly, Quint’s seizure claim must be remanded as well.
Because we are reinstating Quint’s constitutional claims against the two detectives arising from the warrant-less entry, search, and seizure, our remand encompasses his state-law defamation claim as well. See, e.g., Hall v. Bennett, 379 F.3d 462, 464, 466 (7th Cir.2004). However, Quint’s § 1983 claim for unlawful arrest, his § 1983 claims of municipal liability against the Village of Deerfield, and his state law claims were properly dismissed. To pursue a claim that his arrest violated the Fourth Amendment, Quint would need to establish that it was not supported by probable cause. See Gonzalez, 578 F.3d at 537. But he does not dispute that Georgia authorities had issued a valid warrant for his arrest, and that document supplied probable cause to justify the arrest. See, e.g., United States v. Sims, 553 F.3d 580, 582 (7th Cir.2009); United States v. Martin, 399 F.3d 879, 881 (7th Cir.2005). Instead, Quint asserts that the arrest was conducted in a manner that violated Illinois law, but that contention is *702irrelevant because state law does not define the scope of federal constitutional requirements. See Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604, 170 L.Ed.2d 559 (2008); Sims, 553 F.3d at 585. As for Quint’s municipal-liability theory under § 1983, the complaint is no more than a “formulaic recitation of the elements,” which is insufficient to satisfy Federal Rule of Civil Procedure 8(a). See Twombly, 550 U.S. at 545, 127 S.Ct. 1955. The complaint sets forth no factual content, and this complete lack of detail is fatal to that claim. See, e.g., Justice v. Town of Cicero, 577 F.3d 768, 773 (7th Cir.2009) (“failure to allege any policy or practice causing the allegedly illegal search is fatal to [the] claim”); McTeman v. City of York, 564 F.3d 636, 659 (3d Cir.2009). And, finally, as to the claims for intentional infliction of emotional distress and civil conspiracy, Quint does not challenge the district court’s conclusion that they were time-barred, and this failure dooms these claims.
The dismissal of Quint’s claims regarding the lawfulness of his arrest, municipal liability, intentional infliction of emotional distress, and civil conspiracy are AFFIRMED. In all other respects, the judgment of the district court is VACATED, and the case is REMANDED to the district court for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477599/ | ORDER
Ramon Jurado Lopez pleaded guilty to knowingly and intentionally distributing a mixture or substance containing cocaine, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and was sentenced to 66 months’ imprisonment. Lopez appeals, but his appointed counsel has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Lopez declined an invitation to respond to counsel’s submission, see Cir. R. 51(b), and so we confine our review to the potential issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
After Lopez pleaded guilty, a probation officer prepared a presentence investigation report. The PSR estimated Lopez’s relevant conduct to be 9.2 kilograms of cocaine: 204 grams supplied in controlled purchases to an undercover officer in 2008 (the offense conduct), 500 grams sold to a confidential informant in 2008, 490 grams recovered from the home of another confidential informant (who identified Lopez as his source) in 2006, and 8 kilograms seized in 2008 from the truck of someone later seen at Lopez’s residence. Based on information from the controlled purchases and witness statements, the probation officer also recommended a two-level increase in Lopez’s offense level for being a manager or supervisor. See U.S.S.G. § 3Bl.l(c).
Lopez responded with a memo of objections primarily attacking the calculated amount of drugs. He objected to the inclusion of the 8 kilograms, asserting that there was no corroborating evidence connecting him to the drugs. He also object*706ed to the inclusion of the 490 grams from 2006, asserting that these drugs were not part of the same course or scheme attributed to him in the offense conduct from 2008. Finally, Lopez objected to the application of § 3Bl.l(c) on grounds that information from one of his associates was unreliable, since he was also negotiating a plea at the time.
The government subsequently informed the district court that it could not meet its burden of proof to connect Lopez to the 8 kilograms recovered from the truck, and so the probation officer revised the PSR accordingly, leaving Lopez responsible for 1.2 kilograms of cocaine.
At the conclusion of the sentencing hearing (at which Lopez did not re-assert his objections about the drug quantity), the district court adopted the revised guideline calculations in the PSR. Lopez faced a guidelines range of 57 to 71 months, given a base offense level of 26, see U.S.S.G. § 2Dl.l(c)(7) (between 500 grams and 2 kilograms of cocaine), with two additional levels for his role as a manager or supervisor, see id. § 3Bl.l(c), a three-level reduction for acceptance of responsibility, see id. § 3E1.1, and criminal history category of I. The court noted that Lopez was part of a large-scale drug operation across several states and sentenced him to 66 months.
At the outset we note that Lopez does not want his guilty plea set aside, and so counsel appropriately refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel first assesses whether Lopez could potentially challenge the district court’s guideline calculations, including the amount of drugs attributed to Lopez or the adjustment for his role as manager/supervisor. But as counsel notes, the district court adopted the calculations and findings from the PSR, and Lopez did not object to any of these findings at sentencing. The district court properly based its findings on the uncon-tradicted factual information in the PSR. See United States v. Thornton, 463 F.3d 693, 700-01 (7th Cir.2006); United States v. Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); see also Fed.R.Crim.P. 32(i)(3)(A). Moreover, Lopez’s decision not to assert his objections at sentencing effectively waived those arguments on appeal. See United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir.2009) (collecting cases); United States v. Sensmeier, 361 F.3d 982, 986-87 (7th Cir.2004). Any potential argument based on the court’s guideline calculations would be frivolous.
Counsel also considers whether Lopez could potentially argue that his prison sentence is unreasonable. Lopez’s sentence is within the guideline range, however, and we therefore presume it to be reasonable. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir.2009). Further, the district court sufficiently considered the § 3553 factors at sentencing, see 18 U.S.C. § 3553(a); United States v. Martinez-Martinez, 442 F.3d 539, 543 (7th Cir.2006). The court acknowledged that Lopez “care[s] a lot about his children,” see 18 U.S.C. § 3553(a)(1), but found him extremely culpable in light of the “significant period of time” of the “large-scale drug distribution” that took place, see id. § 3553(a)(2)(A). The court downplayed Lopez’s minimal criminal history and his record of steady employment, noting that he “really earned [his] living through drug trafficking,” see id. § 3553(a)(1). The court found that a mid-guideline range sentence would “provide [Lopez] with the opportunity for rehabilitative programs and achieve parity with the sentences of *707similarly situated offenders.” See id. § 8553(a)(2)(D), (a)(6). Any potential argument that the court failed to meaningfully consider the factors set forth in § 3553(a) would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477601/ | MEMORANDUM **
Sharee Butler sued the City of Sacramento, the Sacramento Police Department, and Sacramento Police Officer Michelle Perez. She alleged violations of her Fourth and Fifth Amendment rights under 42 U.S.C. § 1983, and violations under several state-law provisions. The district court dismissed or granted summary judgement in favor of the defendants with respect to each of Butler’s claims. Butler appeals only the district court’s ruling that Perez is entitled to qualified immunity with respect to Butler’s Fourth Amendment claim, and accordingly, none of her other claims are before us. As the facts are known to the parties, we will not repeat them here except to the extent necessary to explain our decision.
I
Perez is entitled to qualified immunity unless (1) the facts, viewed in the light most favorable to Butler, demonstrate a violation of a constitutional right and (2) that right was clearly established at the time of the defendant’s misconduct. Pearson v. Callahan, — U.S. -,- -, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). This court may address these questions in any order it chooses. Id. at 818.
Assuming, without deciding, that Perez violated Butler’s Fourth Amendment rights by continuing to detain her after completing the search of her vehicle, this right was not clearly established in 2005, and Perez is therefore entitled to qualified immunity. A government official is immune from liability for discretionary functions, so long as the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. *751Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity shields “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of defendant’s actions] was apparent in light of pre-exist-ing law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir.1995).
Butler cites no case directly demonstrating that the asserted right was clearly established in 2005.1 She contends that in 2005 it was clearly established that “a seizure becomes unlawful when it is more intrusive than necessary to accomplish the objectives that justified the seizure in the first place.” Be that as it may, the circumstances of Butler’s arrest do not demonstrate that her detention was unconstitutionally intrusive. To the contrary, it was established that Perez could detain Butler during the search of her car and home. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (holding that officers may detain the occupants of a house while executing a search warrant); see also Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (holding that officers may detain the occupants of a vehicle while executing a search warrant). Thus, we cannot say that, at the time of Butler’s arrest, “the unlawfulness [of Perez’s actions] was apparent in light of preexisting law.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002) (internal quotation marks omitted).
II
Accordingly, the judgment of the district court is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Indeed, many of the cases she cites were decided after her 2005 arrest, and therefore cannot possibly demonstrate that Perez's actions violated a clearly established Fourth Amendment right. See, e.g., Arizona v. John-sow, -U.S.-, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); Los Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007); United States v. Mendez, 476 F.3d 1077 (9th Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477603/ | The stipulated motion to dismiss with prejudice, filed January 29, 2010, is GRANTED. A certified copy of this order to the District Court shall constitute the mandate of this Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477606/ | *832MEMORANDUM **
Plaintiff Kelly Johnson appeals the district court’s summary judgment ruling in favor of Defendant Mitsubishi Digital Electronics Association on his California express warranty, fraudulent concealment, unfair competition, and unjust enrichment claims. Plaintiffs claims arise out of Mitsubishi’s marketing of high-definition televisions as “1080p.” We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we affirm.
First, Plaintiff’s express warranty claim fails to the extent it is based on his television’s “Embedded Software” warranty. No record evidence supports Plaintiffs claim that his television’s inability to process a native 1080p signal through its HDMI ports is software-related. To the extent this claim is based on Mitsubishi’s use of the phrase “1080p” to describe Plaintiffs television, under Cal. Com.Code § 2813, it also fails. Notwithstanding counsel’s argument to the contrary, Plaintiffs television satisfies his expert’s definition of 1080p, insofar as it is ready to receive a native 1080p signal through its antenna if and when broadcasters begin transmitting in 1080p. Plaintiffs belated reliance on the television’s “Parts” warranty is unavailing, as he never invoked that warranty below. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029, 1031 (9th Cir.2001) (holding that a district court need not “comb the record to find some reason to deny a motion for summary judgment,” particularly “where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found”); Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1052 (9th Cir.2003) (noting that “we do not ordinarily consider on appeal issues not raised below”).
Second, Plaintiffs fraudulent concealment claim fails because he has not established either that Mitsubishi concealed material information or that he would not otherwise have bought his television. See Hahn v. Mirda, 147 Cal.App.4th 740, 54 Cal.Rptr.3d 527, 532 (2007). Mitsubishi did not conceal the fact that the HDMI ports on Plaintiff’s television could not accept a native 1080p signal, nor was this capability relevant to Plaintiff when he purchased his television. Plaintiff wanted a 1080p television and, as discussed above, that is what he got.
Third, Plaintiffs unfair competition claim fails because he lacks standing. In order to have standing to bring a claim under California’s Unfair Competition Law (“UCL”), Cal. Bus. & ProfCode §§ 17200-17210, a plaintiff must have “suffered injury in fact and lost money or property as a result of the unfair competition.” Cal. Bus. & Prof.Code § 17204. If one gets the benefit of his bargain, he has no standing under the UCL. See, e.g., Hall v. Time, Inc., 158 Cal.App.4th 847, 70 Cal.Rptr.3d 466, 471 (2008); Medina v. Safe-Guard Prods., Int’l, Inc., 164 Cal.App.4th 105, 78 Cal.Rptr.3d 672, 678 (2008); Peterson v. Celico P’ship, 164 Cal.App.4th 1583, 80 Cal.Rptr.3d 316, 322 (2008). Here, Plaintiff sought the best 1080p television available at the time, for the best price. The record shows that he got the benefit of his bargain. Plaintiffs unjust enrichment claim fails for the same reasons. See Peterson, 80 Cal.Rptr.3d at 324 (refusing to permit the plaintiffs, who lacked standing to pursue their claim under the UCL, “to pursue their claim under the label ‘unjust enrichment,’ ” because doing so “would allow them to circumvent the law and public policy reflected in ... section 17204’s man *833date that only an injured plaintiff may assert a private right of action under the UCL”).
Finally, we reject Plaintiffs argument that the district court erroneously denied his request to continue the hearing on Mitsubishi’s summary judgment motion in order to conduct additional discovery. The Federal Rules of Civil Procedure empower a district court to allow additional discovery on summary judgment “[i]f a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(f) (emphasis added); accord Qualls ex rel. Qualls v. Blue Cross of Cal, Inc., 22 F.3d 839, 844 (9th Cir.1994); VISA Int’l Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.1986). Here, Plaintiffs vague references to “discovery disputes” and the need to “accumulate evidence” were insufficient to satisfy Rule 56(f)’s specificity requirement. Even on appeal, Plaintiff has not specifically identified the evidence he needed to obtain in order to adequately oppose Mitsubishi’s motion. The district court therefore did not abuse its discretion. Qualls, 22 F.3d at 844.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477607/ | THOMAS, Circuit Judge, concurring:
Under the specific factual and procedural posture of this case, I agree that the district court properly granted summary judgment on the claims. However, in my view, different underlying circumstances might dictate a another outcome. See, e.g., Date v. Sony Electronics, 2009 WL 435289 (E.D.Mich.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477608/ | MEMORANDUM *
Appellant Mark DeClements (“DeCle-ments”) appeals from the district court’s upholding of a partially favorable social security determination, seeking four more months of disability benefits. DeClements contends that the uncontroverted examining physicians’ reports establish that he was disabled as of January 16, 2002, not as of May 27,2002, as the ALJ found.
On April 17, 2002, the report of examining physician Dr. Puzon established that DeClements was severely limited in his movements and could not work until surgery was performed to repair his hernia. Previously, on January 16, 2002, the report of examining physician, Dr. Waffle, established that DeClements was in extreme pain unless placed in head down position. An ALJ may reject an uncontroverted opinion of an examining physician only for clear and convincing reasons. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990). The ALJ failed to explain why he discredited the examining physicians’ opinions, merely stating that he found DeClements was not credible until DeClements suffered a gunshot wound on May 27, 2002, and that the examining physician’s opinions were not sufficiently complete.
We cannot determine from this record the date DeClements became disabled. The record shows that DeClements may have been incapacitated from the time he was released from jail on or about January 1, 2002, or may have become incapacitated at any time between then and the onset date the ALJ selected of May 27, 2002. Under similar circumstances, we have interpreted Social Security Regulation 83-20 to require that the ALJ may not draw medical inferences alone but must call upon the services of a medical advisor to review the medical record and determine the correct onset date. Armstrong v. Comm’r of the Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998).
Accordingly, we VACATE the district court’s order and REMAND with instructions that the ALJ be directed to select a medical advisor to assist him in determining the date DeClements became disabled.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477609/ | RAWLINSON, Circuit Judge, concurring:
I concur in the decision to remand this matter for the Administrative Law Judge (ALJ) to utilize the services of a medical consultant to substantiate the onset date determined by the ALJ. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477615/ | ORDER
Petitioner having paid the required docketing fee and filed the Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s August 4, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before August 26, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477616/ | ON MOTION
ORDER
Fort Mojave Indian Tribe moves to withdraw its appeal.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
Fori Mojave requests that this dismissal be with prejudice; however, it is not the practice of this court to dismiss with or without prejudice. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477586/ | PER CURIAM: *
The Federal Public Defender appointed to represent Armando Ramirez-Sagas-tume 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). Ramirez-Sagas-tume 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477588/ | PER CURIAM: *
The Federal Public Defender appointed to represent Oscar Vasquez Mendez 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). Vasquez Mendez 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477590/ | ORDER
Gilbert Chadwick, an Illinois inmate, filed a civil rights suit under 42 U.S.C. § 1983 against medical staff and prison administrators for their alleged deliberate indifference to his need for surgery to repair an inguinal hernia. At initial screening, see 28 U.S.C. § 1915A, the district court dismissed Chadwick’s complaint. Chadwick then moved for reconsideration and in the motion asked for leave to amend his complaint. The court denied the motion. On appeal Chadwick challenges the denial of his motion to reconsider, including the request to amend his complaint. We affirm the judgment.
Chadwick filed his complaint in January 2009. He alleged that a year earlier he started complaining to medical staff that he was experiencing severe pain as a result of his hernia and requested surgery. In the months that followed, Chadwick said, three different doctors examined him and concluded that surgery was not necessary because his hernia was reducible. And when he filed suit, Chadwick added, his prison doctor was regularly monitoring his condition and updating his prescription *689for pain medication. Nevertheless, Chadwick claimed that this treatment was constitutionally deficient because he continued to experience pain and was reliant on pain medication which, he assumed, would eventually damage his liver and stomach.
The district court concluded that Chadwick’s allegations were insufficient to state an Eighth Amendment claim. The court reasoned that most of the defendants had no personal involvement in Chadwick’s medical care, and that Chadwick had pleaded himself out of court with regard to the defendant doctors because his allegations showed that his condition was not sufficiently serious and that he was being treated, albeit not with his preferred course of treatment. The court entered final judgment in the case on the same day that it dismissed Chadwick’s complaint.
Chadwick then filed a timely motion for reconsideration. See Fed.R.CivP. 59(e). He conceded that his complaint did not state a claim for deliberate indifference, but he requested leave to amend and also submitted medical records showing that he received corrective surgery for his hernia approximately six weeks after he filed his complaint. In addition Chadwick tendered synopses of legal decisions recognizing that delays in providing treatment can violate the Eighth Amendment. Days later Chadwick also submitted a proposed amended complaint, which mostly tracked his initial complaint but altered the legal theory to allege a delay in care. The district court concluded that its dismissal was correct and denied Chadwick’s motion for reconsideration. It is unclear whether the court had received Chadwick’s amended complaint by the time it denied the motion.
In this appeal Chadwick argues that the district court should have granted his postjudgment motion because he submitted what he terms “newly discovered evidence,” i.e., the medical records showing that he eventually received surgery. Although newly discovered evidence can be the basis for a Rule 59 motion, United States v. Resnick, 594 F.3d 562, 568 (7th Cir.2010), the medical records Chadwick submitted — and his new legal theory of unconstitutional delay — “could and should” have been presented earlier, see id.; Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir.2007); In re Prince, 85 F.3d 314, 324 (7th Cir.1996). The surgery documented in those records occurred after Chadwick filed his complaint, but before he successfully moved to supplement the record with exhibits, so he had an opportunity to submit the records earlier, or at least to alert the court to their existence. He also should have added any allegations about the delay in receiving surgery at that time. Moreover, the records do not strengthen Chadwick’s claim of deliberate indifference. We now know that his hernia was repaired six months before his lawsuit was dismissed, so in hindsight it is clear that the condition had become more serious than the district court believed when it ruled. See Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir.2006). But the new records do not suggest that doctors ignored Chadwick’s condition or waited unreasonably long to opt for surgery. On the contrary, the records undermine this prong of Chadwick’s claim: once his hernia became difficult to reduce, he was given surgery. See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591-92 (7th Cir.1999) (rejecting deliberate indifference claim where prison staff was “responsive” to plaintiffs medical needs); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir.1997) (concluding that plaintiffs deliberate indifference claim failed where he “repeatedly received treatment”).
So even with “new” evidence and a revised theory of delay in care, Chadwick’s claim still could not have "withstood screen*690ing or a motion to dismiss. At best, he alleges disagreement with medical professionals about his treatment needs, and a disagreement with the exercise of medical judgment does not state a claim for deliberate indifference. See Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir.2003). Accordingly, the district court did not abuse its discretion in denying Chadwick a second bite at the apple. See Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir.2008).
We AFFIRM the district court’s judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477592/ | ORDER
Diaunte Shields pleaded guilty to possession with intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1). Two prior drug convictions, both felonies, qualified him as a career offender under U.S.S.G. § 4Bl.l(a). And because his new crime involved 50 or more grams of crack and thus carried a possible life sentence, 21 U.S.C. § 841(b)(l)(A)(iii), application of the career-offender guideline meant an offense level of 37, or 34 after a three-level reduction for acceptance of responsibility. See U.S.S.G. §§ 3El.l(a)-(b), 4Bl.l(b). That offense level, coupled with the criminal history category of VI mandated by the career-offender guideline, yielded an imprisonment range of 262 to 327 months. See U.S.S.G. § 4Bl.l(b), Ch. 5 Pt. A. At sentencing the district court acknowledged that applying the career-offender guideline “significantly increased” Shields’s imprisonment range. But the court concluded that a sentence in the middle of that range, 290 months’ imprisonment, was needed to achieve parity with similarly situated offenders and deter him from committing further crimes. See 18 U.S.C. § 3553(a).
Shields’s sole argument on appeal is that the sentencing court possessed — and should have exercised — discretion to reject the differences in imprisonment ranges for offenders involved with crack versus those involved with like amounts of powder cocaine. He relies principally on Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which holds that a sentencing judge may conclude, even in a “mine-run case,” that the crack-*693to-powder ratio underlying the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater than necessary for that particular defendant. Id. at 109-10, 128 S.Ct. 558; see United States v. Bruce, 550 F.3d 668, 674 (7th Cir.2008). Shields reasons that the same principle applies to him because the statutory penalty in § 841(b)(1) that determined his career-offender range also draws what he views as an unwarranted distinction between crack and powder cocaine.
Yet Shields did not ask the district court to impose a below-range sentence on the basis of a perceived disparity in the career-offender imprisonment ranges for purveyors of crack and powder. In general, a district court cannot be faulted for not anticipating arguments that a defendant might have made but did not make in favor of a lower sentence, United States v. Filipiak, 466 F.3d 582, 584 (7th Cir.2006); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005), and even plain-error review would not benefit Shields, see United States v. Hearn, 549 F.3d 680, 684 (7th Cir.2008). Because Shields never asked the district court to exercise any purported discretion to disagree with the career-offender guideline, he would not be entitled to a remand even if the district court did possess such discretion.
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477594/ | ORDER
James Govan pleaded guilty to possessing with the intent to distribute crack cocaine and carrying a firearm during and in relation to a drug trafficking crime, but in doing so reserved the right to appeal the district court’s denial of his motion to suppress the crack and gun. Govan appeals, and we affirm.
Just before midnight on January 19, 2008, Officers Chris Drake and Doug Schwertfager of the Indiana State Excise Police were on patrol across the street from a liquor store in Fort Wayne, Indiana. From their unmarked vehicle and with the aid of binoculars, the officers observed two males who appeared to be under the age of 21 walking along the well-lit sidewalk in front of the store. The men stopped, faced each other, and appeared to exchange something. One of them, Mar-quel Marsh, then entered the liquor store, while the other man, later identified as James Govan, stood behind a pay phone on the storefront beyond the store clerk’s view. After a few minutes, Marsh exited the store and met Govan. The two faced each other, made hand motions consistent with the exchange of an item, and resumed walking down the sidewalk.
*695Although they did not see the items the young men exchanged, the officers suspected that they had witnessed the furnishing of alcohol to a minor.** As the men began to cross the street, the officers drove toward them and activated their vehicle’s emergency lights. The officers exited the vehicle, identified themselves as law enforcement, and asked the men for some form of identification. Neither had any. Officer Schwertfager dealt with Marsh and verified his identity and age (20) through the Indiana Bureau of Motor Vehicles database. Marsh informed Officer Schwertfager that he had purchased condoms at the liquor store and showed him the condoms and a receipt. Meanwhile, Officer Drake dealt with Govan who, after about five minutes of refusing to disclose his name, identified himself as Marcus Williams and gave a birth date of March 17,1985. Officer Drake was unable to locate a person by that name and birth date in the Bureau of Motor Vehicles database. He then contacted Officer Chris Hoffman of the Fort Wayne Police Department who ran the name and birth date through a local database. Officer Hoffman was unable to locate a black male named Marcus Williams born on March 17, 1985, in the local system; he did discover, however, that there was an active arrest warrant for a black male who had that birth date — James Govan. Officer Hoffman relayed that information to Officer Drake, accessed Govan’s photo by computer, and then informed Officer Drake that Govan had a scar above his eye. Officer Drake asked Govan to remove his hat and glasses. When the man complied, Officer Drake observed a scar above his left eye. Officer Hoffman then arrived on the scene and confirmed that the man matched the computer photo of James Govan. In order to be certain, Officer Hoffman asked the man for his social security number. Officer Hoffman checked the number he was given against the number from the James Govan entry in the local database and discovered that they matched except for two digits that had been transposed. The officers then placed Govan under arrest based on the outstanding warrant and for giving false information to police during the investigation of a crime. (Twenty minutes had elapsed between the initiation of the stop and Govan’s arrest.) Officer Hoffman searched Govan and discovered baggies of crack cocaine and marijuana. After Govan was transported to jail, Officer Hoffman searched him a second time and discovered a handgun in his coat pocket.
A grand jury indicted Govan for possessing with the intent to distribute crack cocaine (Count 1), being a felon in possession of a firearm (Count 2), and carrying a firearm during and in relation to a drug trafficking crime (Count 8). Govan filed a motion to suppress the crack and the gun, alleging they were the fruits of an unlawful investigatory stop. Following a hearing, the district court denied the motion. Go-van then pleaded guilty to Counts 1 and 3 of the indictment pursuant to a conditional guilty plea wherein he reserved his right to appeal the district court’s denial of his motion to suppress. The district court sentenced Govan to a term of 33 months’ imprisonment on Count 1 and a consecutive term of 60 months’ imprisonment on Count 3. Govan appeals the denial of his motion to suppress the crack and handgun.
On appeal, Govan argues that the crack cocaine and gun should have been suppressed because their discovery resulted from the officers’ violation of his Fourth Amendment right to be free from unreasonable seizures. Specifically, he contends *696that Officers Schwertfager and Drake stopped him without reasonable suspicion that he was committing (or had committed) a crime. And even if the stop was justified at its inception, says Govan, the duration of the stop was unreasonable.
In reviewing a district court’s denial of a motion to suppress, we examine its conclusions of law de novo and its factual findings for clear error, giving special deference to its credibility determinations. United States v. Burnside, 588 F.3d 511, 516-17 (7th Cir.2009). Govan does not challenge the district court’s findings of fact and concomitant credibility determinations. Hence, our review is limited to the district court’s legal conclusion that the stop comported with the Fourth Amendment.
Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a law enforcement officer can conduct an investigatory stop of a suspect if he has a reasonable suspicion based on particular, articu-lable facts that criminal activity is afoot. United States v. Hampton, 585 F.3d 1033,-1038 (7th Cir.2009). Whether an officer possessed reasonable suspicion is an objective inquiry based on the totality of the circumstances known to the officer at the time of the stop. United States v. Hicks, 531 F.3d 555, 558 (7th Cir.2008). The officer’s action must be justified at its inception and reasonably related in scope to the circumstances that warranted the stop initially. Jewett v. Anders, 521 F.3d 818, 824 (7th Cir.2008). The duration of the stop must be reasonable. United States v. Jackson, 300 F.3d 740, 746 (7th Cir.2002).
Under Indiana law, it is a crime for a minor *** to knowingly possess an alcoholic beverage. Ind.Code § 7.1-5-7-7(a)(1). The observations of the experienced excise officers gave rise to a reasonable suspicion that Govan was a minor in possession of alcohol.**** Standing in the well-lit area near the liquor store, Govan appeared to be under the age of 21 — he was in fact only 22. It was almost midnight when the officers saw Govan exchange an item with Marsh. While Marsh went inside the store, Govan stood behind a pay phone out of the store clerk’s view, something a minor not wishing to arouse the suspicion of store personnel might do. After Marsh had tarried a few minutes in the store, he came out and had a face-to-face encounter with Govan; the two again appeared to exchange an item. The officers did not actually see any items exchanged and the men’s hand movements were susceptible of an innocent explanation, but given the circumstances it was reasonable for them to think that Govan had supplied Marsh with money to buy alcohol and that Marsh had done so and delivered it to him. See Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (Terry stops are appropriate even where suspect’s conduct is ambiguous and subject to an innocent explanation); United States v. Grogg, 534 F.3d 807, 810 (7th Cir.2008) (“While certain behavior in isolation may have an innocent explanation, that same behavior, when viewed in the context of other factors at play, may amount to reasonable suspicion.”). Hence, the officers had a reasonable suspicion that Govan was a minor in possession of an alcoholic beverage. Accordingly, at its inception the investigatory stop of Govan did not offend the Fourth Amendment.
Govan argues that even if the stop were initially justified, the duration of the stop was unreasonable because the officers *697continued to detain him after they discovered that Marsh was 20 years old and had purchased condoms in the liquor store. “There is no bright-line rule as to how long an investigative detention may last; instead we look to whether the police diligently pursued a means of investigating that was likely to confirm or dispel quickly their suspicions.” United States v. Adamson, 441 F.3d 513, 521 (7th Cir.2006). While Officer Sehwertfager was dealing with Marsh, Officer Drake attempted to learn Govan’s identity, which is generally permissible during an otherwise valid stop. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (observing that “it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop”). The fact that the officers learned that Marsh was a minor did not dispel their reasonable suspicion that Govan was a minor in possession of alcohol: Marsh still could have purchased alcohol in the store, perhaps with a fake identification or none at all, and given it to Govan. And the condoms and receipt that Marsh produced did not necessarily dispel their reasonable suspicion that Govan was a minor in possession of alcohol: the apparent exchanges between Govan and Marsh before and after Marsh’s visit in the store were still unexplained. Moreover, within five minutes of the stop, Govan refused to reveal his name and then gave a false name that did not show up in the Bureau of Motor Vehicles database. At that point, there was ample reason for Officer Drake to be suspicious that Govan was wanted for another crime, see id., or had given him false information during the investigation, which is itself a misdemeanor offense in Indiana, Ind.Code § 35-44-2-2(d)(l). The officers therefore had reasonable suspicion that Govan had committed a separate offense, which provided additional grounds for extending the stop and investigating further. They investigated the new suspicion by searching the local database. After learning Govan might be wanted on an arrest warrant, they looked to see if he had a scar above his eye and checked his social security number. All of these measures were aimed at confirming or dispelling the officers’ suspicions raised by Govan’s conduct, and Govan’s continued detention (for less than 15 minutes) while these steps were taken was reasonable. See Cady v. Sheahan, 467 F.3d 1057, 1063 (7th Cir.2006) (officers do not exceed the permissible duration of a stop where the extension of the stop is attributable to the suspect’s evasive conduct).
In sum, the stop was lawful both at its inception and in its duration and thus provides no basis for excluding the crack and gun.***** Accordingly, the district court properly denied Govan’s motion to suppress. We AFFIRM.
In Indiana, it is a misdemeanor for a person to furnish an alcoholic beverage to a minor. Ind.Code § 7. l-5-7-8(a). On the other side of the coin, it is also a misdemeanor for a minor to knowingly possess an alcoholic beverage. Id. § 7.1-5-7-7(a)(l).
A minor is a person less than 21 years of age. Ind.Code § 7.1-1-3-25.
the time, Officer Drake was an 11-year veteran of the Indiana State Excise Police. Officer Schwertfager had been on the job for two and a half years.
Because the stop was at all times consistent with the Fourth Amendment, we need not decide whether the outstanding arrest warrant might have been an intervening circumstance sufficient to dissipate the taint of an illegal stop and thus avert suppression of the crack cocaine and gun. See United States v. Green, 111 F.3d 515 (7th Cir. 1997). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477596/ | ORDER
Hillard Quint has sued the Village of Deerfield, Illinois, and two of its police officers individually. As relevant here, he claims under 42 U.S.C. § 1988 that the officers violated his constitutional rights at the time of his arrest as they entered and searched his home without consent or without a warrant, and seized personal property from the residence; these actions, Quint maintains, were the policy of the Deerfield Police Department. Quint’s amended complaint, filed by counsel, also includes state-law claims for defamation, intentional infliction of emotional distress, and civil conspiracy. The district court dismissed Quint’s illegal search claim on the basis of a qualified-immunity defense raised by the individual defendants and the court dismissed all other federal claims for failure to state a claim. See Fed. R.Civ. P. 12(b)(6). The court also concluded that all of the state-law claims, other than the defamation claim, were time-barred, but as to that claim the court declined to exercise supplemental jurisdiction because all claims based in federal law had been dismissed. See 28 U.S.C. § 1367(c)(8); Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir.2009). Quint appeals. We affirm in part and vacate and remand in part.
Because the district court dismissed Quint’s complaint at the pleading stage, we accept the facts in the complaint as true and construe them in the light most favorable to Quint. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008); Christensen v. County of Boone, 483 F.3d 454, 457 (7th Cir.2007). In February 2007 the individual defendants, both detectives from the Village of Deerfield, arrested Quint on the street outside his apartment in Chicago, Illinois. The detectives, Juan Mazarie-gos and Vince Nichols, informed Quint they were acting on an arrest warrant issued in Georgia three years earlier for writing a bad check. They told Quint they were going to hold him until Chicago police arrived to take him into custody. While they were waiting, the detectives frisked Quint and searched his car. They did not find any contraband, but in a pants pocket they did find his house keys, which they then used to enter and search his apartment without consent or a warrant. The items seized by Mazariegos and Nichols included financial documents, tax records, a computer, and photographs; Quint was never charged with a crime in the detectives’ jurisdiction, and the items taken from his home were never used in any prosecution. Instead, the detectives turned some of the items they confiscated over to various media sources, as well as accusations that Quint was responsible for swindling multiple women out of millions of dollars. Mazariegos went a step further; he used a seized picture of Quint to make fliers calling Quint a “fraud.” The police department has never returned the illegally seized property to Quint nor inventoried the confiscated property.
Based on these events, Quint sued the Village of Deerfield and the two detectives individually. In his claim against Mazarie-gos and Nichols, Quint alleged that they violated his rights under the Fourth Amendment by arresting him, entering and searching his home, and seizing his •property. The district court dismissed this claim, reasoning that the validly issued arrest warrant provided undisputed probable cause to justify the arrest, and that the detectives were entitled to qualified immunity for the search of the house. The district court dismissed Quint’s claim dealing with the seizure of his personal property on the assumption that Quint was required to plead, but did not refer to any allegations regarding the inadequacy of state remedies. As for his claim against *700the municipality, Quint alleged that the Village of Deerfield had violated his constitutional rights by maintaining a policy that condoned (among other things) harassment, defamation, and improper and illegal arrests and seizures. The district court rejected this claim on the grounds that Quint’s allegations were vague and failed to challenge a municipal policy implemented by an individual with policy-making authority. In addition to these federal claims, Quint asserted supplemental state-law claims for defamation, intentional infliction of emotional distress, and civil conspiracy. The court concluded that only the defamation claim was timely, but with only that claim remaining declined to exercise supplemental jurisdiction.
Our review of a dismissal under Rule 12(b)(6) is de novo. See, e.g., Christensen, 483 F.3d at 458. A complaint is sufficient if it includes enough factual content to “ ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That standard is met when the factual content allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.2009).
We start with the one claim that the individual (police) defendants have, from the beginning, effectively conceded is sufficient to satisfy Rule 12(b)(6): that Mazariegos and Nichols entered Quint’s home without consent or a warrant and confiscated several items of his personal property. The two detectives have never disputed that, if Quint’s allegations are true, they violated the Fourth Amendment; the detectives instead maintain that they are shielded from liability by the affirmative defense of qualified immunity. Mazarie-gos and Nichols contend, as they did in the district court, that reasonable police officers could have believed that the discovery of house keys during a search incident to arrest authorized a warrantless, noncon-sensual entry and search of the home unlocked by those keys. This contention is without merit, and the district court erred in accepting it as a basis for dismissal.
The defendants tell us that they believed “it was within their discretion” to search Quint’s home “based on the Georgia warrant and the nature of the underlying crime (bad checks).” They stop short of asserting that they had probable cause to search the house, but if they did it would not matter. An arrest warrant is not a warrant to search for evidence, and even if Quint had been seized in his apartment, the arrest warrant would not have authorized a search beyond a “cursory visual inspection of those places in which a person might be hiding.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Peals v. Terre Haute Police Dep’t, 535 F.3d 621, 627-28 (7th Cir.2008); Cuevas v. De Roco, 531 F.3d 726, 735 (9th Cir.2008); El Bey v. Roop, 530 F.3d 407, 419-420 (6th Cir.2008). More to the point, although an arrest warrant allows entry into the suspect’s home to effect the arrest, Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), Quint alleges that he was in custody and removed from the scene before the detectives entered his home, so the arrest warrant cannot help the detectives.
“Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right,” Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 816, 172 L.Ed.2d 565 (2009); see Gonzalez v. City of Elgin, 578 F.3d 526, 541 (7th Cir.2009), and here the detectives’ conduct was “so egregious that no reason*701able person could have believed that it would not violate clearly established rights,” Smith v. City of Chicago, 242 F.3d 787, 742 (7th Cir.2001). It has long been established that warrantless entries and searches of a residence are “presumptively unreasonable” under the Fourth Amendment. See, e.g., Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004); Payton, 445 U.S. at 586, 100 S.Ct. 1871; Green v. Butler, 420 F.3d 689, 694 n. 4 (7th Cir.2005). Of course, various exceptions to this rule are also clearly established. Warrantless entries are permitted to prevent the imminent destruction of evidence, see, e.g., Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); United States v. Bell, 500 F.3d 609, 612 (7th Cir.2007), but even then the police may do no more than conduct a protective sweep and then secure the premise until a search warrant can be obtained, Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); United States v. Alexander, 573 F.3d 465, 476 (7th Cir.2009). Nothing in Quint’s complaint remotely hints at the possibility of exigent circumstances, and the defendants have not suggested any. They arrested Quint on the street outside his apartment on a three-year-old fugitive warrant, and by the time of the entry and search, he was in custody and had been removed from the scene. There was no risk to the detectives’ safety, no obligation to protect the public safety, and no need to prevent the destruction of evidence because no one was in the house at the time of the arrest. “[A]n arrest on the street does not create an exigent circumstance which allows the police to conduct a war-rantless search of the arrestee’s house,” United States v. Marshall, 157 F.3d 477, 483 (7th Cir.1998), and that rule of law is not weakened by the discovery of Quint’s house keys. Under these circumstances, a reasonable officer — having already arrested Quint and removed him from the area— would have known that a search warrant was needed to enter and scour his home for evidence. The facts may not be as Quint alleges, but if they are, the officers have no entitlement to the shield of qualified immunity.
We also disagree with the treatment of Quint’s claim regarding the taking of his property. Quint’s appellate brief makes clear that he is concerned with the seizure of his property that occurred immediately following his arrest. The district court analyzed this claim under the rubric of due process, but unreasonable seizures of personal property violate the Fourth Amendment. See United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. James, 571 F.3d 707, 713 (7th Cir.2009). Accordingly, Quint’s seizure claim must be remanded as well.
Because we are reinstating Quint’s constitutional claims against the two detectives arising from the warrant-less entry, search, and seizure, our remand encompasses his state-law defamation claim as well. See, e.g., Hall v. Bennett, 379 F.3d 462, 464, 466 (7th Cir.2004). However, Quint’s § 1983 claim for unlawful arrest, his § 1983 claims of municipal liability against the Village of Deerfield, and his state law claims were properly dismissed. To pursue a claim that his arrest violated the Fourth Amendment, Quint would need to establish that it was not supported by probable cause. See Gonzalez, 578 F.3d at 537. But he does not dispute that Georgia authorities had issued a valid warrant for his arrest, and that document supplied probable cause to justify the arrest. See, e.g., United States v. Sims, 553 F.3d 580, 582 (7th Cir.2009); United States v. Martin, 399 F.3d 879, 881 (7th Cir.2005). Instead, Quint asserts that the arrest was conducted in a manner that violated Illinois law, but that contention is *702irrelevant because state law does not define the scope of federal constitutional requirements. See Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 1604, 170 L.Ed.2d 559 (2008); Sims, 553 F.3d at 585. As for Quint’s municipal-liability theory under § 1983, the complaint is no more than a “formulaic recitation of the elements,” which is insufficient to satisfy Federal Rule of Civil Procedure 8(a). See Twombly, 550 U.S. at 545, 127 S.Ct. 1955. The complaint sets forth no factual content, and this complete lack of detail is fatal to that claim. See, e.g., Justice v. Town of Cicero, 577 F.3d 768, 773 (7th Cir.2009) (“failure to allege any policy or practice causing the allegedly illegal search is fatal to [the] claim”); McTeman v. City of York, 564 F.3d 636, 659 (3d Cir.2009). And, finally, as to the claims for intentional infliction of emotional distress and civil conspiracy, Quint does not challenge the district court’s conclusion that they were time-barred, and this failure dooms these claims.
The dismissal of Quint’s claims regarding the lawfulness of his arrest, municipal liability, intentional infliction of emotional distress, and civil conspiracy are AFFIRMED. In all other respects, the judgment of the district court is VACATED, and the case is REMANDED to the district court for further proceedings. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477598/ | ORDER
Ramon Jurado Lopez pleaded guilty to knowingly and intentionally distributing a mixture or substance containing cocaine, 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2, and was sentenced to 66 months’ imprisonment. Lopez appeals, but his appointed counsel has concluded that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Lopez declined an invitation to respond to counsel’s submission, see Cir. R. 51(b), and so we confine our review to the potential issues outlined in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
After Lopez pleaded guilty, a probation officer prepared a presentence investigation report. The PSR estimated Lopez’s relevant conduct to be 9.2 kilograms of cocaine: 204 grams supplied in controlled purchases to an undercover officer in 2008 (the offense conduct), 500 grams sold to a confidential informant in 2008, 490 grams recovered from the home of another confidential informant (who identified Lopez as his source) in 2006, and 8 kilograms seized in 2008 from the truck of someone later seen at Lopez’s residence. Based on information from the controlled purchases and witness statements, the probation officer also recommended a two-level increase in Lopez’s offense level for being a manager or supervisor. See U.S.S.G. § 3Bl.l(c).
Lopez responded with a memo of objections primarily attacking the calculated amount of drugs. He objected to the inclusion of the 8 kilograms, asserting that there was no corroborating evidence connecting him to the drugs. He also object*706ed to the inclusion of the 490 grams from 2006, asserting that these drugs were not part of the same course or scheme attributed to him in the offense conduct from 2008. Finally, Lopez objected to the application of § 3Bl.l(c) on grounds that information from one of his associates was unreliable, since he was also negotiating a plea at the time.
The government subsequently informed the district court that it could not meet its burden of proof to connect Lopez to the 8 kilograms recovered from the truck, and so the probation officer revised the PSR accordingly, leaving Lopez responsible for 1.2 kilograms of cocaine.
At the conclusion of the sentencing hearing (at which Lopez did not re-assert his objections about the drug quantity), the district court adopted the revised guideline calculations in the PSR. Lopez faced a guidelines range of 57 to 71 months, given a base offense level of 26, see U.S.S.G. § 2Dl.l(c)(7) (between 500 grams and 2 kilograms of cocaine), with two additional levels for his role as a manager or supervisor, see id. § 3Bl.l(c), a three-level reduction for acceptance of responsibility, see id. § 3E1.1, and criminal history category of I. The court noted that Lopez was part of a large-scale drug operation across several states and sentenced him to 66 months.
At the outset we note that Lopez does not want his guilty plea set aside, and so counsel appropriately refrains from examining the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Counsel first assesses whether Lopez could potentially challenge the district court’s guideline calculations, including the amount of drugs attributed to Lopez or the adjustment for his role as manager/supervisor. But as counsel notes, the district court adopted the calculations and findings from the PSR, and Lopez did not object to any of these findings at sentencing. The district court properly based its findings on the uncon-tradicted factual information in the PSR. See United States v. Thornton, 463 F.3d 693, 700-01 (7th Cir.2006); United States v. Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); see also Fed.R.Crim.P. 32(i)(3)(A). Moreover, Lopez’s decision not to assert his objections at sentencing effectively waived those arguments on appeal. See United States v. Venturella, 585 F.3d 1013, 1019 (7th Cir.2009) (collecting cases); United States v. Sensmeier, 361 F.3d 982, 986-87 (7th Cir.2004). Any potential argument based on the court’s guideline calculations would be frivolous.
Counsel also considers whether Lopez could potentially argue that his prison sentence is unreasonable. Lopez’s sentence is within the guideline range, however, and we therefore presume it to be reasonable. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Cano-Rodriguez, 552 F.3d 637, 639 (7th Cir.2009). Further, the district court sufficiently considered the § 3553 factors at sentencing, see 18 U.S.C. § 3553(a); United States v. Martinez-Martinez, 442 F.3d 539, 543 (7th Cir.2006). The court acknowledged that Lopez “care[s] a lot about his children,” see 18 U.S.C. § 3553(a)(1), but found him extremely culpable in light of the “significant period of time” of the “large-scale drug distribution” that took place, see id. § 3553(a)(2)(A). The court downplayed Lopez’s minimal criminal history and his record of steady employment, noting that he “really earned [his] living through drug trafficking,” see id. § 3553(a)(1). The court found that a mid-guideline range sentence would “provide [Lopez] with the opportunity for rehabilitative programs and achieve parity with the sentences of *707similarly situated offenders.” See id. § 8553(a)(2)(D), (a)(6). Any potential argument that the court failed to meaningfully consider the factors set forth in § 3553(a) would be frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477600/ | MEMORANDUM **
Sharee Butler sued the City of Sacramento, the Sacramento Police Department, and Sacramento Police Officer Michelle Perez. She alleged violations of her Fourth and Fifth Amendment rights under 42 U.S.C. § 1983, and violations under several state-law provisions. The district court dismissed or granted summary judgement in favor of the defendants with respect to each of Butler’s claims. Butler appeals only the district court’s ruling that Perez is entitled to qualified immunity with respect to Butler’s Fourth Amendment claim, and accordingly, none of her other claims are before us. As the facts are known to the parties, we will not repeat them here except to the extent necessary to explain our decision.
I
Perez is entitled to qualified immunity unless (1) the facts, viewed in the light most favorable to Butler, demonstrate a violation of a constitutional right and (2) that right was clearly established at the time of the defendant’s misconduct. Pearson v. Callahan, — U.S. -,- -, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009). This court may address these questions in any order it chooses. Id. at 818.
Assuming, without deciding, that Perez violated Butler’s Fourth Amendment rights by continuing to detain her after completing the search of her vehicle, this right was not clearly established in 2005, and Perez is therefore entitled to qualified immunity. A government official is immune from liability for discretionary functions, so long as the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. *751Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity shields “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of defendant’s actions] was apparent in light of pre-exist-ing law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir.1995).
Butler cites no case directly demonstrating that the asserted right was clearly established in 2005.1 She contends that in 2005 it was clearly established that “a seizure becomes unlawful when it is more intrusive than necessary to accomplish the objectives that justified the seizure in the first place.” Be that as it may, the circumstances of Butler’s arrest do not demonstrate that her detention was unconstitutionally intrusive. To the contrary, it was established that Perez could detain Butler during the search of her car and home. See Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (holding that officers may detain the occupants of a house while executing a search warrant); see also Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (holding that officers may detain the occupants of a vehicle while executing a search warrant). Thus, we cannot say that, at the time of Butler’s arrest, “the unlawfulness [of Perez’s actions] was apparent in light of preexisting law.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.2002) (internal quotation marks omitted).
II
Accordingly, the judgment of the district court is
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Indeed, many of the cases she cites were decided after her 2005 arrest, and therefore cannot possibly demonstrate that Perez's actions violated a clearly established Fourth Amendment right. See, e.g., Arizona v. John-sow, -U.S.-, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009); Los Angeles County v. Rettele, 550 U.S. 609, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007); United States v. Mendez, 476 F.3d 1077 (9th Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477602/ | The stipulated motion to dismiss with prejudice, filed January 29, 2010, is GRANTED. A certified copy of this order to the District Court shall constitute the mandate of this Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477604/ | *832MEMORANDUM **
Plaintiff Kelly Johnson appeals the district court’s summary judgment ruling in favor of Defendant Mitsubishi Digital Electronics Association on his California express warranty, fraudulent concealment, unfair competition, and unjust enrichment claims. Plaintiffs claims arise out of Mitsubishi’s marketing of high-definition televisions as “1080p.” We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we affirm.
First, Plaintiff’s express warranty claim fails to the extent it is based on his television’s “Embedded Software” warranty. No record evidence supports Plaintiffs claim that his television’s inability to process a native 1080p signal through its HDMI ports is software-related. To the extent this claim is based on Mitsubishi’s use of the phrase “1080p” to describe Plaintiffs television, under Cal. Com.Code § 2813, it also fails. Notwithstanding counsel’s argument to the contrary, Plaintiffs television satisfies his expert’s definition of 1080p, insofar as it is ready to receive a native 1080p signal through its antenna if and when broadcasters begin transmitting in 1080p. Plaintiffs belated reliance on the television’s “Parts” warranty is unavailing, as he never invoked that warranty below. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029, 1031 (9th Cir.2001) (holding that a district court need not “comb the record to find some reason to deny a motion for summary judgment,” particularly “where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found”); Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1052 (9th Cir.2003) (noting that “we do not ordinarily consider on appeal issues not raised below”).
Second, Plaintiffs fraudulent concealment claim fails because he has not established either that Mitsubishi concealed material information or that he would not otherwise have bought his television. See Hahn v. Mirda, 147 Cal.App.4th 740, 54 Cal.Rptr.3d 527, 532 (2007). Mitsubishi did not conceal the fact that the HDMI ports on Plaintiff’s television could not accept a native 1080p signal, nor was this capability relevant to Plaintiff when he purchased his television. Plaintiff wanted a 1080p television and, as discussed above, that is what he got.
Third, Plaintiffs unfair competition claim fails because he lacks standing. In order to have standing to bring a claim under California’s Unfair Competition Law (“UCL”), Cal. Bus. & ProfCode §§ 17200-17210, a plaintiff must have “suffered injury in fact and lost money or property as a result of the unfair competition.” Cal. Bus. & Prof.Code § 17204. If one gets the benefit of his bargain, he has no standing under the UCL. See, e.g., Hall v. Time, Inc., 158 Cal.App.4th 847, 70 Cal.Rptr.3d 466, 471 (2008); Medina v. Safe-Guard Prods., Int’l, Inc., 164 Cal.App.4th 105, 78 Cal.Rptr.3d 672, 678 (2008); Peterson v. Celico P’ship, 164 Cal.App.4th 1583, 80 Cal.Rptr.3d 316, 322 (2008). Here, Plaintiff sought the best 1080p television available at the time, for the best price. The record shows that he got the benefit of his bargain. Plaintiffs unjust enrichment claim fails for the same reasons. See Peterson, 80 Cal.Rptr.3d at 324 (refusing to permit the plaintiffs, who lacked standing to pursue their claim under the UCL, “to pursue their claim under the label ‘unjust enrichment,’ ” because doing so “would allow them to circumvent the law and public policy reflected in ... section 17204’s man *833date that only an injured plaintiff may assert a private right of action under the UCL”).
Finally, we reject Plaintiffs argument that the district court erroneously denied his request to continue the hearing on Mitsubishi’s summary judgment motion in order to conduct additional discovery. The Federal Rules of Civil Procedure empower a district court to allow additional discovery on summary judgment “[i]f a party opposing the [summary judgment] motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(f) (emphasis added); accord Qualls ex rel. Qualls v. Blue Cross of Cal, Inc., 22 F.3d 839, 844 (9th Cir.1994); VISA Int’l Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir.1986). Here, Plaintiffs vague references to “discovery disputes” and the need to “accumulate evidence” were insufficient to satisfy Rule 56(f)’s specificity requirement. Even on appeal, Plaintiff has not specifically identified the evidence he needed to obtain in order to adequately oppose Mitsubishi’s motion. The district court therefore did not abuse its discretion. Qualls, 22 F.3d at 844.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477605/ | THOMAS, Circuit Judge, concurring:
Under the specific factual and procedural posture of this case, I agree that the district court properly granted summary judgment on the claims. However, in my view, different underlying circumstances might dictate a another outcome. See, e.g., Date v. Sony Electronics, 2009 WL 435289 (E.D.Mich.2009). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477610/ | MEMORANDUM *
Appellant Mark DeClements (“DeCle-ments”) appeals from the district court’s upholding of a partially favorable social security determination, seeking four more months of disability benefits. DeClements contends that the uncontroverted examining physicians’ reports establish that he was disabled as of January 16, 2002, not as of May 27,2002, as the ALJ found.
On April 17, 2002, the report of examining physician Dr. Puzon established that DeClements was severely limited in his movements and could not work until surgery was performed to repair his hernia. Previously, on January 16, 2002, the report of examining physician, Dr. Waffle, established that DeClements was in extreme pain unless placed in head down position. An ALJ may reject an uncontroverted opinion of an examining physician only for clear and convincing reasons. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990). The ALJ failed to explain why he discredited the examining physicians’ opinions, merely stating that he found DeClements was not credible until DeClements suffered a gunshot wound on May 27, 2002, and that the examining physician’s opinions were not sufficiently complete.
We cannot determine from this record the date DeClements became disabled. The record shows that DeClements may have been incapacitated from the time he was released from jail on or about January 1, 2002, or may have become incapacitated at any time between then and the onset date the ALJ selected of May 27, 2002. Under similar circumstances, we have interpreted Social Security Regulation 83-20 to require that the ALJ may not draw medical inferences alone but must call upon the services of a medical advisor to review the medical record and determine the correct onset date. Armstrong v. Comm’r of the Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998).
Accordingly, we VACATE the district court’s order and REMAND with instructions that the ALJ be directed to select a medical advisor to assist him in determining the date DeClements became disabled.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477611/ | RAWLINSON, Circuit Judge, concurring:
I concur in the decision to remand this matter for the Administrative Law Judge (ALJ) to utilize the services of a medical consultant to substantiate the onset date determined by the ALJ. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477613/ | ORDER
Samson J. Hypolite has complied with the court’s order of August 4, 2009, 2009 WL 5865664.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s order of dismissal and mandate are hereby, vacated and recalled, and the notice of appeal is reinstated.
(2) The United States should compute the due date for filing its brief 21 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477614/ | ORDER
Petitioner having paid the required docketing fee and filed the Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s August 4, 2009 dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before August 26, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477617/ | ON MOTION
ORDER
Fort Mojave Indian Tribe moves to withdraw its appeal.*
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
Fori Mojave requests that this dismissal be with prejudice; however, it is not the practice of this court to dismiss with or without prejudice. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477648/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477652/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477654/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477656/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477660/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477664/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 4, 2009 be affirmed. The district court properly dismissed appellant’s petition for a writ of mandamus, as appellant has not shown a “clear and indisputable” right to mandamus relief. Gulfstream Aerospace Corp. v. Mayacamas Carp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). The U.S. Attorney General has absolute discretion to decide whether to conduct an investigation or prosecute a case. United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see also Powell v. Katzenbach, 359 F.2d 234, 234 (D.C.Cir.1965) (per curiam) (the prosecuto-rial discretion of the Attorney General may not be controlled through mandamus). Moreover, appellant has not demonstrated that the appellees owed him a duty to investigate his allegations or to forward them to the Attorney General.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477666/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). 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 AND ADJUDGED that the district court’s order filed February 24, 2009, be affirmed. Appellant has not claimed or shown that the failure to notify him of the February 2008 hearing caused the revocation of his probation or his ensuing incarceration. See Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (plaintiff bringing suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), must plead and prove that constitutional violation caused the harm he alleges).
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477669/ | SUMMARY ORDER
This case arises out of the transfer of sixteen million dollars from two Paraguayan banks in liquidation to bank accounts in the United States. Plaintiff Banco Central Del Paraguay (“Banco Central”) brings an action for conversion as assignee of Banco Union and Banco Oriental, the two Paraguayan banks in liquidation. The district court granted summary judgment in favor of Banco Central on its conversion claim and dismissed defendants’ counterclaims and third party complaint. Defendants Ronald L. Wolfson, Jorge Ralph Gallo Quintero, Paraguayan Humanitarian Foundation, CQZ Holding Corp., Avijos, Inc., and Jose M. Avila now appeal. We assume the parties’ familiarity with the facts and procedural history of the case.
Defendants challenge Banco Central’s standing to bring this action. Defendants argue that the assignments through which Banco Union and Banco Oriental assigned their claim are invalid under Paraguayan law. Therefore, according to defendants, Banco Central does not have a legal interest in the claim and does not have standing to bring suit. See W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 108 (2d Cir.2008) (“[T]he minimum requirement for an injury-in-fact is that the plaintiff have legal title to, or a proprietary interest in, the claim.”). Defendants point to the declaration of Alfredo Enrique Kronawetter, a Paraguayan lawyer, for the proposition that the assignments are invalid. The district court did not consider the Kronawetter declaration because it was submitted four months after the close of briefing.
We have reviewed the Kronawetter declaration and conclude that it is insufficient to raise a genuine issue of material fact in dispute that would preclude summary judgment. As evidence of the assignments, Banco Central submitted the actual assignments, Joint Appendix (“JA”) at 265-68, as well as subsequent ratifications of the assignments by the liquidators and declarations of the liquidators expressing support for the lawsuit. JA 385-87, 435-51, 453-54. The Kronawetter declaration states that the assignments “do not combine the necessary formalities and conditions so that such means are effective, for not having had it carried out under the decree of article 389 of the Paraguayan Civil Code.” JA 676. This statement is entirely conclusory and defendants do not even provide the Court with a copy of article 389 or any explanation of why the assignments do not comply with Paraguayan legal formalities. Defendants therefore fail to raise a genuine issue of material fact in dispute precluding summary judgment.
Defendants argue that the district court erred when it granted summary judgment on Banco Central’s conversion claim because a conversion claim may not be predicated on a mere breach of contract. But *253Banco Central’s claim is not predicated on a mere breach of contract. Instead, it “spring[s] from circumstances extraneous to, and not constituting elements of, the [alleged] contract....” See Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 (1987); see also In re September 11 Litig., 640 F.Supp.2d 323, 338 (S.D.N.Y.2009) (“[C]ontract and tort claims for relief may coexist in limited circumstances ... when a defendant’s tortious conduct is separate and apart from its failure to fulfill its contractual obligations.”) (internal quotation marks and alterations omitted). Here, Banco Central’s claim is not predicated on the alleged contract. Banco Central does not ask for the “profits of the investment,” nor does it ask for the return of its money because the investment plan was not carried out. JA 206. Instead, Banco Central demands the return of the sixteen million dollars because the money was unlawfully transferred out of Paraguay.
Defendants further contend that the district court erred when it dismissed defendants’ counterclaims and third party complaint. Defendants brought counterclaims against Banco Central for interference with a contract and against the banks-in-liquidation for breach of contract. The district court correctly dismissed these claims pursuant to the “opposing party” requirement of Federal Rule of Civil Procedure 13. Banco Central is not an “opposing party” because the interference with a contract claim is brought against Banco Central in its regulatory capacity and not in its capacity as assignee of the two banks-in-liquidation. See Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 885 (2d Cir.1981) (holding that generally, under the “opposing party” requirement, “when a plaintiff has brought suit in one capacity, the defendant may not counterclaim against [the plaintiff] in another capacity”). The banks-in-liquidation, which are not named parties, are not “opposing parties]” because they have assigned their claims and so they are not the real parties in interest in the litigation nor the parties controlling the litigation. See Banco Nacional de Cuba v. First Nat’l City Bank of N.Y., 478 F.2d 191, 193 (2d Cir.1973) (concluding that a counterclaim could be brought against the Republic of Cuba, though unnamed, because the Republic of Cuba and Banco Nacional de Cuba, the plaintiff, acted as a single entity); see also Transamerica Occidental Life Ins. Co. v. Aviation Office of Am., Inc., 292 F.3d 384, 392 (3d Cir.2002) (concluding that an assignee was an “opposing party,” stating that “[i]t is significant that the [assignee] ... was actually the party controlling the litigation in both actions .... This is an essential component of our analysis.”).
Defendants’ third-party complaint against the banks-in-liquidation was also correctly dismissed. Defendants waited two years before attempting to serve process on the banks-in-liquidation and never successfully served process on them. We have previously held inapplicable the foreign country exception to Federal Rule of Civil Procedure 4(m)’s 120-day time limit for service where a party did not attempt service within the 120-day limit and “ha[d] not exactly bent over backward to effect service.” Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2d Cir.1985). Likewise we do not find that the district court abused its discretion here where defendants waited two and a half years to attempt service, never effected service, and did not explain why they had not been able to effect service. See Nagy v. Dwyer, 507 F.3d 161, 163 (2d Cir.2007) (“We review for abuse of discretion a district court’s dismissal of an action for failure to timely serve the defendant.”).
*254We have considered the remainder of defendants’ arguments and conclude that they lack merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477647/ | *155ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC
ORDER
A combined petition for panel rehearing and for rehearing en banc was filed by Ecolab, Inc. (“Ecolab”) in Ecolab, Inc. v. FMC Corp., 569 F.3d 1335 (Fed.Cir.2009), and a response thereto was invited by the court and filed by FMC Corporation. The petition for rehearing and response were referred to the panel that heard the appeal.
The panel has considered the petition for panel rehearing and the response to that petition, which was limited to Ecolab’s assertion that this court erred by failing to address its argument that the district court erroneously denied Ecolab’s motion for prejudgment interest on its trade secret damages award. Having considered the petition and response, the panel grants Ecolab’s petition for panel rehearing for the limited purpose of amending its original opinion to remand to the district court to resolve
the issue of prejudgment interest on Ec-olab’s trade secret damages award. It appears there was no dispute that prejudgment interest is available to Ecolab, and on remand, the district court should ascertain the appropriate amount of such interest owed based upon applicable state law.
The petition for rehearing en banc and response having been referred to the circuit judges who are in regular active service,
UPON CONSIDERATION THEREOF, it is
ORDERED that Ecolab, Inc.’s petition for panel rehearing be, and the same hereby is, GRANTED for the limited purpose stated herein. As for the remaining issues raised by Ecolab, the petition for panel rehearing is DENIED, and it is further
ORDERED that the petition for rehearing en banc be, and the same hereby is, DENIED.
The mandate of the court will issue on October 7, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477649/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R. App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477653/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477655/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477657/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477659/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477661/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477663/ | ORDER
Upon consideration of appellant’s motion to dismiss appeal, and the affidavit in support thereof, it is
*178ORDERED that the motion be granted, and this case is hereby dismissed. See D.C. Circuit Handbook of Practice and Internal Procedures 34-35 (2009).
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477665/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed February 4, 2009 be affirmed. The district court properly dismissed appellant’s petition for a writ of mandamus, as appellant has not shown a “clear and indisputable” right to mandamus relief. Gulfstream Aerospace Corp. v. Mayacamas Carp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). The U.S. Attorney General has absolute discretion to decide whether to conduct an investigation or prosecute a case. United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see also Powell v. Katzenbach, 359 F.2d 234, 234 (D.C.Cir.1965) (per curiam) (the prosecuto-rial discretion of the Attorney General may not be controlled through mandamus). Moreover, appellant has not demonstrated that the appellees owed him a duty to investigate his allegations or to forward them to the Attorney General.
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477667/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). 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 AND ADJUDGED that the district court’s order filed February 24, 2009, be affirmed. Appellant has not claimed or shown that the failure to notify him of the February 2008 hearing caused the revocation of his probation or his ensuing incarceration. See Hartman v. Moore, 547 U.S. 250, 257 n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (plaintiff bringing suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), must plead and prove that constitutional violation caused the harm he alleges).
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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477678/ | OPINION
PER CURIAM.
Keynan Green, a federal prisoner proceeding pro se, filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which the District Court granted on September 25, 2008. On September 19, 2009, Green filed a motion to request that the District Court issue a court order for the government to remove separation restrictions. According to Green, separation restrictions were in place that deprived him and his codefen-dants from being classified to a federal institution that was closer to home. On September 29, 2009, the District Court denied Green’s request. On November 30, 2009, Green filed the instant notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s September 29, 2009 order for abuse of discretion.1 See United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
*326In its order denying relief, the District Court noted that “the question of whether, and to what extent, separation restrictions should exist [is] within the province of the Government and the Bureau of Prisons.” We agree. Generally, prisoners do not have inherent liberty interests in particular modes, places, or features of confinement, including housing placements. See Hewitt v. Helms, 459 U.S. 460, 466-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated by Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293,132 L.Ed.2d 418 (1995); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (“Congress has given federal prison officials full discretion to control [prisoner classification and corresponding housing assignments], and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process”); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (no due process protections required upon discretionary transfer of state inmates between prisons). Green has not shown how he is otherwise entitled to relief.
Accordingly, as no substantial question is presented by this appeal, we will summarily affirm.
. To the extent that Green intended to appeal from the order issued on September 25, 2008, his notice of appeal is not timely. See Fed. R.App. P. 4(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477680/ | OPINION
PER CURIAM.
Derrick Brown, a federal inmate housed in Pennsylvania, appeals from an order dismissing a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. On November 10, 2009, the United States District Court for the Middle District of Pennsylvania entered an order in Civ. No. 09-cv-01436 dismissing a prior § 2241 petition that Brown had filed to challenge a conviction and sentence imposed in 2008 in the United States District Court for the Western District of Tennessee. The District Court dismissed that prior petition because Brown had yet to seek collateral review in the sentencing court under 28 U.S.C. § 2255, and he could not show that his remedy under § 2255 is “inadequate or ineffective.”1
*327Brown then filed the instant § 2241 petition in the Middle District of Pennsylvania (Civ. No. 09-cv-2258). Noting that the petition did not raise any contention that was not included in the previously dismissed petition, the District Court again instructed Brown to pursue his remedies in the sentencing court under § 2255, and again held that he cannot proceed under § 2241. The District Court noted that the instant petition is also subject to dismissal as successive or an abuse of the writ. Brown timely filed this appeal from the order of dismissal.
We have appellate jurisdiction under 28 U.S.C. § 1291. Because this appeal presents “no substantial question,” 3d Cir. IOP Ch. 10.6, we will summarily affirm the District Court’s judgment.2
Section 2241 is unavailable to Brown to challenge his federal conviction and sentence unless a § 2255 motion would be “inadequate or ineffective.” For the reasons explained in our separate opinion in C.A. No. 09-4487, the District Court correctly held that Brown cannot proceed with his claims in a § 2241 proceeding. Further, as the District Court noted, Brown’s repetitive filing of this second § 2241 proceeding was properly subject to dismissal as an abuse of the writ.
The District Court’s judgment will be affirmed.
. Brown's appeal from the final order in Civ. No. 09-cv-01436 was docketed in this Court as C.A. No. 09-4487.
. To the extent that Brown needs a certificate of appealability to pursue this appeal, it is denied. Reasonable jurists could not debate the District Court's decision to dismiss Brown's petition. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477682/ | OPINION
PER CURIAM.
Hyoja Akiko Moore appeals pro se from the District Court’s order remanding this matter to state court. We will dismiss this appeal in part and summarily affirm in part. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
Tremayne Brown, Roberto Evans and Diane Powers filed suit against Moore in New Jersey state court. Their complaint asserts seven state-law claims arising from Moore’s alleged breach of a partnership agreement concerning the purchase of real property. Moore removed the action to federal court, purportedly under 28 U.S.C. §§ 1441(b) (on the basis of federal question jurisdiction) and 1443. The District Court served Moore with a standing order requiring her to provide certain information regarding the basis for removal, and Moore filed a response. The District Court then remanded this matter to state court by order entered October 7, 2009. The District Court concluded that the state-court complaint did not give rise to a federal question and that Moore had not satisfied the requirements for removal under § 1443. Moore appeals.1
With other exceptions not relevant here, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise” unless the case was removed pursuant to § 1443. 28 U.S.C. § 1447(d); see also Carlsbad Tech., Inc., v. HIF Bio, Inc., — U.S. —,—-—, 129 S.Ct. 1862, 1865-66,173 L.Ed.2d 843 (2009) (interpreting § 1447(d)). Thus, we will dismiss Moore’s appeal to the extent that she challenges the District Court’s conclusion that it lacked subject matter jurisdiction. See Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir.1997). We have jurisdiction, however, to determine whether removal was proper under § 1443. See id. We exercise plenary review over that legal issue, see Lazorko v. Pennsylvania Hosp., 237 F.3d 242, *329247 (3d Cir.2000), and conclude that the District Court properly remanded this matter to state court.
Moore purported to remove this action under both subsections of § 1443, but only her invocation of the first subsection requires extended discussion.2 Section 1443(1) authorizes the removal of a state law action “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1). For this provision to apply, “a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law ‘providing for ... equal civil rights’; and (2) that he is ‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047 (quoting Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)). Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law “ ‘providing for specific civil rights stated in terms of racial equality.’ ” Id. (citation omitted). The second requirement is met when a defendant’s federal civil rights would “ ‘inevitably be denied by the very act’ of being brought to trial in state court.” Id. at 1050 (citation omitted).
The District Court properly determined that these requirements are not satisfied here. Moore asserts that removal is proper because the judge presiding over the state court action has (1) made unspecified biased and prejudicial rulings, (2) failed to follow unspecified prior precedent, (3) failed to “honor” an order entered in an unspecified prior action, and (4) relied on falsified or forged documents submitted by the plaintiffs. (Notice of Removal at 1.) We express no opinion on the merits of these allegations, but they do not state grounds for removal under § 1443 even if they are true. See Davis, 107 F.3d at 1048 (“ ‘It is not enough to support removal under § 1443(1) to allege or show ... that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court.’ ”) (citation omitted). Moore has not identified any right conferred on her by a federal statute concerning racial equality that inevitably will be violated by the litigation of this matter in state court, and there does not appear to be any. To the contrary, as the District Court concluded, she has alleged nothing that cannot be redressed if appropriate within the state court system itself.
Accordingly, we will dismiss this appeal in part and affirm the District Court’s ruling that removal was not proper under § 1443.
. The District Court’s order also denied as moot a motion for an injunction that Moore filed seeking immediate possession of the property at issue. It entered another order on October 8, 2009, cancelling a previously scheduled conference in light of the remand. Moore has appealed from the October 8 order as well, but the District Court's cancellation of the conference, as well as its denial of Moore's motion for an injunction, clearly were proper in light of its remand and do not require separate discussion.
. "[T]he second subsection of [§ ] 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights.” City of Greenwood v. Peacock, 384 U.S. 808, 824, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Moore has not alleged anything that might permit removal under this subsection. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477684/ | *331OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Steven Monaco appeals a judgment of the District Court denying his motion for a new trial and his second motion to amend complaint. Largely for the reasons explained by the District Court and Magistrate Judge in their cogent opinions, we will affirm.
I.
Because we write for the parties, who are familiar with the facts and procedural history, we recount only those aspects of the case that are essential to our decision.
On May 31, 2002, Monaco was tailgating in the parking lot near the Tweeter Center in Camden, New Jersey prior to a concert when a fight broke out. Monaco alleged that during law enforcement’s response to that fight, he was assaulted by Camden police officers who mistook him for a combatant. According to Monaco, he was taken to the police station where he was questioned by another officer, Shay Sampson, who coerced him into confessing to a public drinking violation.
On May 25, 2004, one week before the expiration of the two-year statute of limitations, Monaco filed suit in the District Court, alleging constitutional and state law claims against the City of Camden, the Camden Police Department, and unnamed John Does. Monaco added Officer Sampson as a Defendant in his first amended complaint.
The case went to trial in June 2008 with the jury finding in Monaco’s favor. The victory was Pyrrhic, however, because although the jury found “that one or more Camden Police Officers deprived [Monaco] of the right to be free from excessive force” and “the right to be free from unlawful arrest,” it also found that Monaco did not prove that the City of Camden had an official custom of deliberate indifference that caused the constitutional violations. Furthermore, the jury found that Monaco did not “prove that Defendant Sampson is liable for malicious prosecution.” Monaco filed a motion for new trial, which the District Court denied.
In this appeal, Monaco challenges both the denial of his motion for new trial as well as the denial of his second motion to amend complaint. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
II.
A.
Monaco contends that the jury’s finding that the police lacked probable cause to arrest him is inconsistent as a matter of law with its finding that Officer Sampson is not liable for malicious prosecution because lack of probable cause is an element of a malicious prosecution claim.
We review the District Court’s denial of a motion for new trial for abuse of discretion. Thabault v. Chait, 541 F.3d 512, 532 (3d Cir.2008) (citation omitted). A district court may grant a motion for new trial “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R.Civ.P. 59(a)(1)(A). Inconsistent general verdicts may constitute grounds for ordering a new trial. Mosley v. Wilson, 102 F.3d 85, 91 (3d Cir.1996). However, a court may order a new trial based on inconsistent verdicts only if “no rational jury could have brought back the verdicts that were returned.” Pearson v. Welbom, 471 F.3d 732 (7th Cir.2006) (internal quotations and citations omitted). Accordingly, when one party challenges a jury’s verdicts as inconsistent, the court has an obligation first to “attempt to reconcile the jury’s findings” to determine “whether the jury could have, consistent with its instructions, rendered the challenged verdicts.” Davignon v. Hodgson, 524 F.3d 91, 109 *332(1st Cir.2008) (citations omitted); see Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) (“[I]t is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’ ”) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962)). In undertaking to read the verdicts consistently, the court must “view the facts in the light most favorable to the verdict.” Davignon, 524 F.3d at 109.
Applying these standards to this appeal, we have little difficulty finding that the jury’s verdicts regarding unlawful arrest and malicious prosecution were not inconsistent. Monaco is correct that lack of probable cause is an element of both an unlawful arrest claim and a malicious prosecution claim. See, e.g., Paff v. Kaltenbach, 204 F.3d 425, 435 (3d Cir.2000) (unlawful arrest); Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 972 A.2d 1112, 1119 (2009) (malicious prosecution). Nevertheless, the jury’s finding that the officers who took custody of Monaco at the Tweeter Center lacked probable cause to arrest does not preclude a finding that Officer Sampson was not liable for malicious prosecution. See Pearson, 471 F.3d at 739 (verdicts finding two of five defendants liable for retaliation were not inconsistent where jury could have believed that two defendants’ actions constituted retaliation while simultaneously finding that other defendants were not involved in retaliatory act). As explained by the District Court, when the facts are viewed in the light most favorable to the verdicts, there are at least two explanations that would render these jury verdicts consistent.
First, the jury could have found that even though the officers who took Monaco into custody at the Tweeter Center lacked probable cause to arrest, Officer Sampson did have probable cause to believe Monaco had been drinking in public at the time Sampson issued the citation. The jury could have credited Sampson’s testimony that he had not been present during Monaco’s arrest and that Sampson first encountered Monaco at the police station. Monaco, Sampson, and Monaco’s then-girlfriend, Nicole Doran-Pangborne, all testified that Monaco told Sampson that he had consumed an alcoholic beverage before the concert. Doran-Pangborne also testified that Monaco had been drinking alcohol at the parking lot.1 Monaco contends that a finding of probable cause could not be based upon his confession because it was coerced.2 But the evidence regarding coercion at trial was disputed: Monaco’s *333allegation versus Sampson’s denial. The jury was entitled to disbelieve Monaco’s allegations of coercion, and credit Sampson’s testimony that Monaco confessed freely in response to Sampson’s questions.
Based on Monaco’s admission to Sampson that he had consumed alcohol while tailgating before the concert, the jury reasonably could have found that Sampson had probable cause to believe Monaco had been drinking in public when he issued the citation. This is certainly a “minimally plausible view of the case” which renders the jury’s false arrest and malicious prosecution verdicts consistent. See McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 764 (3d Cir.1990).
A second explanation plausibly reconciles the jury’s verdicts. In addition to a lack of probable cause, liability for malicious prosecution requires a showing of malice. See Brunson, 972 A.2d at 1119-20. The jury here could have found that Monaco failed to prove that Officer Sampson acted maliciously, i.e., “without just cause or excuse.” Id. at 1120. The jury was free to disbelieve Monaco’s testimony that Sampson threatened him into making a false confession, credit Sampson’s testimony that he did not threaten Monaco, and conclude that Monaco failed to establish the malice element of his claim. Viewing the testimony before the jury in the light most favorable to the verdicts, we cannot conclude that “no rational jury could have brought back the verdicts that were returned.” Pearson, 471 F.3d at 739.
B.
The remainder of the issues Monaco raises concern the denial of his second motion to amend complaint. Because we find that Monaco’s second motion to amend was untimely and therefore futile, we do not specifically address his allegations of error in the District Court’s denials of his appeal from the Magistrate Judge’s order and his motion to reconsider that denial.
Leave to amend pleadings “shall be freely given when justice so requires.” Fed. R.CivJP. 15(a). As articulated by the Supreme Court:
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.the leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Because Monaco sought to amend his complaint for a second time approximately two years after the statute of limitations expired, his motion is futile unless it relates back to the date of the original complaint.3 See Fed. *334R.Civ.P. 15(c)(1). Whether Monaco’s amendment relates back to the original pleading is determined by the law that provides the applicable statute of limitations, see id., in this case, New Jersey. Two New Jersey rules are relevant to Monaco’s motion, N.J. Court Rules 4:26-4 and 4:9-3, but Monaco failed to satisfy the requirements of either rule.
Rule 4:26-4, New Jersey’s fictitious party rule, permits a plaintiff to sue a defendant under a fictitious name when the defendant’s true name is unknown. The plaintiff may use the fictitious party rule to add defendants after the expiration of the statute of limitations “only if the plaintiff exercised due diligence to ascertain defendant’s true name before and after filing the complaint.” DeRienzo v. Harvard. Indus., Inc., 357 F.3d 348, 353 (3d Cir.2004) (citation omitted) (emphasis added). “In the context of N.J.R. 4:26-4, plaintiffs must ‘investigate all potentially responsible parties in a timely manner’ to cross the threshold for due diligence.” Id. at 354 (quoting Matynska v. Fried, 175 N.J. 51, 811 A.2d 456, 457 (2002)).
Monaco has not presented adequate evidence of efforts taken before the expiration of the statute of limitations to satisfy the diligence requirement. Monaco alleges that his efforts were thwarted because, in response to the discovery requests he made in defending the public drinking charges in municipal court, the City stated that it was “unable to locate any report” relevant to the charge. Monaco fails to show why the City’s inability to locate any reports prevented him or his eyewitnesses from reviewing the police photo book to identify potential defendants during the two years before he filed suit. The City’s inability to locate a report at that time, while troubling, does not excuse Monaco from his diligence obligations. Accordingly, he cannot avail himself of Rule 4:26-4 to avoid the statute of limitations bar to his second motion to amend.4
Rule 4:9-3, New Jersey’s general relation back rule, provides that an amendment changing the party against whom a claim is asserted relates back to the date of the original complaint if: (1) it arose out of the same transaction or occurrence set forth in the original pleading; (2) the proposed defendant received notice of the institution of the action within the limitations period such that the party will not be prejudiced in maintaining a defense; and (3) the proposed defendant knew or should have known that, but for the misidentification of the proper party, the action would have been brought against him or her. Arroyo v. Pleasant Garden Apartments, 14 F.Supp.2d 696, 701 (D.N.J.1998) (citing Viviano v. CBS, Inc., 101 N.J. 538, 503 A.2d 296, 304 (1986)). In this case, Monaco has not met his burden with respect to the second or third prongs of the test.
Monaco argues that the proposed defendants had notice of the lawsuit and knowledge that they were potential defendants because: (1) in an interview with the media shortly after the incident, a member of the Camden Police Department stated that the incident would be investigated internally, (2) the proposed defendants are Camden Police officers and the City of Camden was named a defendant in the original complaint, and (3) in their answer to the amended complaint, the City acknowledged that there was another lawsuit *335pending regarding the May 31, 2002 incident. We disagree for several reasons.
First, the media statement regarding an internal investigation could not have notified the proposed defendants of Monaco’s lawsuit since it was made almost two years prior to the initiation of the lawsuit. Additionally, the investigation itself was not conducted by the Camden City Police Department until February of 2005, over seven months after the expiration of the statute of limitations; therefore, the investigation could not have put the proposed defendants on notice of the lawsuit before the expiration of the limitations period.
Second, while in some circumstances, the “identity of interest” method permits imputing notice of an action to an unnamed party, see Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186, 198 (3d Cir.2001), Monaco has not shown that the proposed defendants and the City of Camden share such an identity of interest. See Otchy v. City of Elizabeth Bd. of Educ., 325 N.J.Super. 98, 737 A.2d 1151, 1157 (N.J.Super.A.D.1999). Also, Monaco filed his original lawsuit only six days before the statute of limitations expired and did not serve the City until June 14, 2004; therefore, we cannot conclude that the City would have had time to identify and notify the proposed defendants of the action before the statute of limitations ran. See Love v. Rancocas Hosp., 270 F.Supp.2d 576, 581 (D.N.J.2003) (holding that where employer and some employees were served just days before limitations period expired, they did not have sufficient time to determine that named employees were identified incorrectly and notify correct employee of the action).
Finally, the mere existence of a related lawsuit was insufficient to put the proposed defendants on notice of Monaco’s lawsuit, or that they might be defendants in the ease. Even if additional lawsuits over the May 31, 2002 incident alerted the proposed defendants to the existence of potential claims, it would not have alerted them to the institution of Monaco’s lawsuit. See Otchy, 737 A.2d at 1156 (“The rule expressly requires ‘notice of the institution of the action’ not just of a claim. The purpose of that notice provision in the rule is to assure that the added party will not be prejudiced by having to defend a stale claim.”). Therefore, Monaco has not satisfied the requirements for relation-back under Rule 4:9-3.
III.
For the foregoing reasons, we conclude that the verdicts were not inconsistent and that Monaco’s second motion to amend complaint was untimely and properly denied as futile. Accordingly, we will affirm the judgment of the District Court.
. The inconsistency of the testimony regarding which alcoholic beverage Monaco was drinking — Monaco and Sampson testified he confessed to drinking a Coors Light while Doran-Pangborne said it was a Mike's Hard Lemonade — is immaterial because either beverage could subject him to the charge of public drinking.
. Monaco argues that the evidence of his confession should have been excluded as "fruit of the poisonous tree,” because it was obtained subsequent to his illegal arrest. This argument is without merit as it confuses the principles of civil and criminal proceedings. The fruit of the poisonous tree doctrine cannot be invoked to support a civil claim for damages because "the doctrine is an evidentiary rule that operates in the context of criminal procedure and has generally been held to apply only in criminal trials.” Jenkins v. City of New York, 478 F.3d 76, 91 n. 16 (2d Cir.2007) (internal quotation and citations omitted); United States v. Calandra, 414 U.S. 338 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (instructing that "standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search”).
. Monaco argues that the City should be es-topped from asserting the statute of limitations because it did not oppose his first motion to amend, which also was filed after the statute of limitations expired. We reject this argument as the City’s assertion of the statute of limitations in opposition to the second motion to amend is not inconsistent with its failure to object to the first motion to amend, and because it would not have been reasonable for Monaco to delay filing his second motion to amend in reliance on the failure to object. See generally Knorr v. Smeal, 178 N.J. 169, 836 A.2d 794, 799 (2003) ("The doctrine [of equitable estoppel] is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment.’’). Furthermore, we note that after Monaco filed his first amended complaint in March 2005, all of the newly added defendants — save Officer Sampson — successfully moved for summary judgment on the ground that the claims were barred by the statute of limitations. Monaco did not appeal that ruling.
. Monaco’s argument that he could not return to the police station to review the photo book prior to the running of the two-year statute of limitations because of the intimidation he suffered on May 31, 2002 is not persuasive. Monaco cites no authority for this proposition, and even if he were fearful of the Camden police, there is no reason Monaco and his lawyer could not have arranged to review the photo book at another location. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477686/ | OPINION OF THE COURT
PRATTER, District Judge.
Appellant Leslie E. Strong’s counsel has filed a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Strong has filed a pro se brief in opposition to his counsel’s motion, and the United States has filed a brief in support of counsel’s motion. Because Strong’s counsel has complied with his duties under Anders and because this Court is satisfied that there are no non-frivolous issues for appeal, we will grant counsel’s motion to withdraw and dismiss the appeal.
*337I. Background
Because we write solely for the parties, we will address only those facts necessary to our opinion.
On August 27, 2008, Strong, along with a co-defendant, was charged in a 29-count indictment with wire fraud in violation of 18 U.S.C. § 1343 (Counts 1 through 12), money laundering in violation of 18 U.S.C. § 1956 (Counts 13 through 27), forfeiture under 18 U.S.C. § 82 (Count 28), and conspiracy to commit wire fraud in violation of 18 U.S.C. § 371 (Count 29). These charges follow from a fraudulent investment scheme that was orchestrated by Strong, resulting in a cumulative loss of over $5 million to eight investors.
On December 3, 2008, Strong entered into a plea agreement with the United States pursuant to which he pled guilty to one count of wire fraud and the forfeiture count. Prior to sentencing, the government and Strong also entered into a sentencing stipulation. The parties stipulated that Strong’s Criminal History Category should be Category II, rather than Category I, because of similar previous adult criminal conduct that had resulted in a civil action against Strong, though no criminal charges were levied against him. (Counsel App. at 141-42, 148-150.) In exchange, the government agreed to recommend a two level downward departure under U.S.S.G. § 5K1.1, based on Strong’s substantial assistance to the government in its prosecution of Strong’s co-defendant. (App. at 141-42, 148-150.) This agreement resulted in a recommendation of an overall Offense Level of 22 and a sentencing range of 46-57 months imprisonment.
On April 13, 2009, the District Court accepted the sentencing stipulation and sentenced Strong to a term of imprisonment of 55 months. On April 23, 2009, Strong filed this timely appeal.
II. Discussion1
Pursuant to Third Circuit Local Appellate Rule 109.2(a), if trial counsel reviews the district court record and “is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw, with a supporting brief, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).” Third Circuit L.A.R. 109.2(a). “The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). While “counsel need not raise and reject every possible claim ... he or she must meet the ‘conscientious examination’ standard set forth in Anders.” Id. Because counsel’s Anders brief here complied with the rule’s requirements, and because our own independent review of the record does not reveal any non-frivolous issues, we will grant counsel’s request to withdraw.
Strong’s unconditional guilty plea limits the availability of appellate relief to the following claims: first, that the District Court lacked jurisdiction to enter the conviction and impose sentence on Strong; second, that the guilty plea was invalid or not lawful under applicable statutory and constitutional standards; and third, that the sentence was illegal and/or unreasonable. See United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); United States v. Cooper, 437 F.3d 324 (3d Cir.2006); 18 U.S.C. § 3742(a).
*338Neither counsel nor Strong in his pro se brief suggests that the District Court was without subject matter jurisdiction or that the guilty plea was invalid or involuntary. In our independent review of the record, we find that any such claims on appeal would be frivolous. Strong pled guilty to a violation of the laws of the United States for offenses occurring in the Middle District of Pennsylvania, thus conferring jurisdiction upon the District Court pursuant to 18 U.S.C. § 8231. Further, our review of the plea colloquy establishes that Strong’s guilty plea was voluntary and knowing and in compliance with statutory and constitutional norms.
Counsel’s brief focuses on the legality and reasonableness of the sentence and identifies two potential issues for appeal, both of which are frivolous. The two issues identified are: (1) whether the sentence was based on a proper application of the United States Sentencing Guidelines; and (2) whether the District Court abused its discretion under 18 U.S.C. § 3553(a). Neither of these issues has merit.
We review a district court’s sentence for reasonableness, evaluating both its procedural and substantive underpinnings under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In imposing a sentence, the district court must: (1) correctly determine, as a matter of fact, and as a matter of law, the proper Guidelines sentence; (2) correctly determine the applicability of any departure motions; and (3) exercise its discretion to determine the applicability of any of the relevant § 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006).
The District Court properly calculated the sentence under the Guidelines. The District Court’s interpretation and application of the Sentencing Guidelines was based upon the parties’ stipulation at sentencing that Strong’s criminal history should be increased to Category II, while his total Offense Level should be decreased two levels based upon substantial assistance. (App. at 41-51.) The District Court independently assessed the appropriateness of the stipulation before electing to accept it. (App. at 146-47; 150-53.) The District Court found that Strong’s Criminal History Category I, as noted in the Pre-Sentence Report, substantially under-represented the seriousness of his criminal history because the details of the previous scheme were remarkably similar to the fraudulent investment scheme in this case. (App. at 150-52.)2 The stipulation resulted in an overall Offense Level of 22 and guideline imprisonment range of 46 to 57 months, which was a benefit to Strong, given that this range was lower than the 51 to 63 month sentence he faced prior to the sentencing stipulation. (See Pre-Sentence Report ¶ 44.) There is nothing in the record to suggest that the District Court erred in calculating the guidelines range.
With respect to the reasonableness of the sentence, the District Court explicitly considered all of the following: letters submitted to the court by Strong’s friends and family attesting to his good character (which letters Strong has again submitted as part of his pro se brief); Strong’s voluntary forfeitures; Strong’s charitable works; and Strong’s age and diabetic condition. The District Court also listened to Strong’s allocution and the prosecutor’s argument and recommendations. In its statement of reasons for imposing that sentence, the District Court thoroughly re-*339viewed the matters argued and brought to its attention by counsel, including the arguments counsel made for leniency. Thus, the District Court gave meaningful consideration to the relevant § 3558(a) factors and did not abuse its discretion by imposing a 55-month prison sentence, a term below the statutory maximum and within the guideline range.
Having concluded that the issues raised in counsel’s adequate Anders brief are frivolous, we turn to those issues Strong raises in his pro se brief. See Youla, 241 F.3d at 301. Strong argues that the District Court erred in two general ways. First, he argues that the District Court erroneously concluded that his criminal history was understated because of a civil judgment entered against him in the Central District of Illinois in a case involving a separate fraudulent investment scheme. Strong argues that this civil case was not sufficiency similar to this case. This argument fails, however, because the District Court imposed the criminal history enhancement after Strong and the government stipulated that it would apply. Because Strong has not argued that this stipulation was involuntary, there is no reason we should ignore this stipulation now.3 Second, Strong argues that in rendering its sentence, the District Court failed to consider his age and medical condition, his period of pretrial confinement, the numerous letters attesting to his good character, the lesser sentence received by his co-defendant,4 and the fact that he pled to a forfeiture. These are the same leniency arguments he made to the District Court. The District Court heard and appeared to consider these arguments and rendered a not unreasonable, 55-month prison sentence.
Our independent review of the record yields no other non-frivolous arguments that could support an appeal and we are satisfied that the requirements of Anders have been met.
III. Conclusion
In sum, we conclude that the brief filed pursuant to Anders by Strong’s counsel is adequate and the motion by counsel to withdraw will be granted. We also conclude, based on the Anders brief, our independent review of the record, and Strong’s pro se brief, that his appeal is without merit, and thus his conviction and sentence will be affirmed.5
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. The Court suggested that it would have placed Strong in Criminal History Category II even without the stipulation. (App. at 150.)
. The government argues that review of the District Court’s interpretation and application of the United States Sentencing Guidelines is foreclosed altogether because, in entering into the stipulation regarding the offense level, Strong waived the ability to object to this offense level categorization on appeal. We need not address this waiver argument specifically because we find that the stipulation is binding on Strong on this appeal.
. To the extent the disparity between Strong's sentence and his co-defendant's sentence of 9 months was not explicitly considered by the District Court, such a distinction is not unreasonable given that Strong was the organizer/leader in the criminal activity whereas the co-defendant was his office manager and underling.
.As a result, we conclude that is not necessary to appoint counsel to file a petition for rehearing in this Court or a petition for writ of certiorari in the United Stales Supreme Court on Strong's behalf. See Third Circuit L.A.R. 109.2(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477688/ | OPINION
PER CURIAM.
Bassem Moawad Hassad Elsayed, a native and citizen of Egypt, entered the United States on a tourist visa on June 28, 1998. He obtained an F-l student visa while studying at Union County College, and remained in the United States illegally after his student visa expired. On March 23, 2006, the government issued a Notice to Appear charging Elsayed with being removable under INA §§ 237(a)(1)(B) and 237(a)(1)(C)© for being present in violation of law and for failing to maintain nonimmigrant status, respectively.
Elsayed filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the basis that he will be targeted upon return to Egypt for being “Americanized.” The Immigration Judge (“IJ”) denied relief, and the Board of Immigration Appeals (“BIA”) dismissed El-sayed’s appeal.
Elsayed, through counsel, presents a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252. We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir. 2002). We review factual findings for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005).
Elsayed presents three issues in his petition. He contends that the IJ used the wrong standard to rule on his withholding claim; that the BIA’s decision is no more than an improper affirmance without opinion that does not provide analysis of the IJ’s decision; and that the IJ did not properly analyze the State Department material in the record. Among other arguments, the Government counters that because Elsayed did not include any argument that he was improperly denied asylum, withholding, or CAT relief, he waived his claims for those forms of relief.
Upon review of Elsayed’s brief, we note that he maintains that he was entitled to withholding but does not press arguments relating to his claims of asylum and CAT relief.1 Accordingly, we consider any claims relating to asylum or CAT relief waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). We will, however, review the issues he raises as they relate to his withholding claim.
We reject Elsayed’s contention that the IJ used the wrong standard to deny him withholding. Both the IJ and BIA clearly articulated the proper “clear probability” or “more likely than not” standard. R. at 3,107. See Kaita v. Att’y Gen. of the United States, 522 F.3d 288, 296 (3d Cir. 2008) (explaining that “[i]n order to qualify for withholding of removal, a petitioner must establish a ‘clear probability,’ that is, that ‘it is more likely than not’ that her life or freedom would be threatened if returned to her country due to her race, religion, nationality, membership in a particular social group, or political opinion”). There is no evidence in the record that the agency tried to require Elsayed to meet the “clear and convincing” standard he cites. In fact, the IJ and the BIA rejected *342Elsayed’s claim on the basis of its failure to meet the less stringent standard for winning asylum relief.
We also disagree with Elsayed that the BIA’s decision was no more than an improper affirmance without opinion or a summary recitation of the IJ’s decision without analysis. The BIA wrote a two-page opinion that included sufficient detail to show that it reviewed the record and that it considered and analyzed Elsayed’s arguments before the IJ and on appeal. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002) (noting that the BIA “ ‘is not required to write an exegesis on every contention’ ”) (citation omitted).
Lastly, Elsayed contends that the IJ did not take into account evidence in the Department of State material in the record that supports his claim. However, the State Department reports in the record simply do not include evidence to support a claim that Elsayed or a person like him would be targeted as “Americanized” on return to Egypt from the United States. Elsayed also cites information he provided on appeal to the BIA to support his claim. Although the BIA noted that the new evidence did not establish that people returning to Egypt from America are targeted for persecution for being Americanized, the BIA did not consider it in deciding Elsayed’s claim. The BIA did not err in declining to consider those documents because the BIA is precluded from engaging in fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv).
In short, the three issues that Elsayed presents in his petition for review are without merit. To the extent that Elsayed also raises a general challenge to the agency’s decision to deny him withholding, we also hold that substantial evidence supports the BIA’s decision that Elsayed failed to demonstrate a clear probability of future persecution. Although persecution may occur amidst general civil strife, generalized violence does not excuse the petitioner from demonstrating a nexus between the persecutory acts and a protected category. See Vente v. Gonzales, 415 F.3d 296, 301 (3d Cir.2005). Assuming, as the agency did, that Elsayed was a member of a protected category, he did not show the necessary nexus. For these reasons, we will deny the petition for review.
. In fact, he describes his application for relief as one treated, in the agency, as an application for withholding. (Petitioner’s Br. at 2.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477690/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Mark Jackson (“Jackson”) appeals from several orders of the United States District Court for the Eastern District of Pennsylvania imposing Rule 11 sanctions; denying his motion to disqualify the main defendant’s counsel; dismissing -with prejudice claims as a sanction; denying his motion for a preliminary injunction; and denying his motion to vacate the reference to Magistrate Judge M. Faith Angelí. For the reasons stated herein, we will affirm.
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.
This case’s lengthy history begins in state court. In 1999, Jackson filed an invasion of privacy suit against his employer, Rohm and Haas Company (“Rohm and Haas”), in the Pennsylvania Court of Common Pleas of Philadelphia County. The ultimate outcome was not favorable to Jackson: although the jury awarded Jackson $150,000 in damages, the trial court granted Rohm and Haas’ motion for judgment notwithstanding the verdict based on its determination that the Pennsylvania Workers’ Compensation Act barred Jackson’s privacy claim.
On September 19, 2003, shortly after the Pennsylvania Superior Court affirmed the trial court’s decision, Jackson filed suit against Rohm and Haas and its attorneys *345in federal court, asserting violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and related common law claims based on the defendants’ alleged misconduct during the state court proceedings (“Jackson I”). Finding that Jackson lacked standing to bring the RICO claim, the District Court dismissed the complaint on June 30, 2005.
On September 19, 2005, Jackson filed a second complaint (“Jackson II”) against a longer list of defendants, including Har-kins Cunningham LLP (“Harkins”), the law firm that represented Rohm and Haas in Jackson I, and Liberty Life Assurance Company of Boston (“Liberty Life”), which allegedly suspended Jackson’s disability benefits during his state and federal litigation in order to harass and intimidate him. The defendants responded with a Rule 11 motion for sanctions. On March 9, 2006, 2006 WL 680933, the District Court determined that the Jackson II complaint was “unwarranted and frivolous within the meaning of Rule 11(b)(2)” and sanctioned Jackson in the amount of two-thirds of the expenses and attorney’s fees reasonably incurred by the defendants in preparing the Rule 11 motion and related motions to dismiss. (App. at 123, 132.) Magistrate Judge Angelí calculated the amount to be $81,710.99, and the District Court adopted the sum.
Jackson proceeded to file a third federal complaint (“ Jackson II”), and, on April 21, 2008, the District Court referred the protracted litigation to Judge Angelí.1 Judge Angelí required the represented parties to attend, with counsel, a hearing held on May 22, 2008. At the hearing, Judge An-gelí expressed concerns regarding Jackson’s counsel’s litigation tactics and ordered Jackson to consolidate his second and third federal lawsuits into a single Consolidated Amended Complaint (“CAC”) that would allege only those claims for which Jackson had a good faith basis. Although Judge Angelí did not put a page limit on the CAC, she did caution, “I would hesitate if I saw a consolidated document that was a hundred pages or more.” (Id. at 1240.)
On June 11, 2008, Jackson filed the CAC — it was 152 pages long and asserted 25 counts against 51 defendants, 25 of whom were “John Does.” The defendants filed a motion to dismiss the CAC with prejudice, and Judge Angelí issued an R & R recommending that the motion be granted. Judge Angelí found that the CAC’s length, its failure to make allegations against specific defendants, and its “inflammatory and unwarranted conclusory allegations” violated Federal Rule of Civil Procedure 8 and, by thwarting her prior orders, also Rule 41(b). (Id. at 135.) Applying our decision in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), Judge Angelí concluded that at least five of the six Poulis factors weighed in favor of dismissal: (1) Jackson’s presence at the May 22, 2008 hearing made him personally responsible for the CAC (App. at 146); (2) the defendants were prejudiced by having to answer ten complaints with claims that were frivolous and broad in scope (id. at 147); (3) Jackson’s “pattern of continued failure to file a proper complaint” created a history of dilatoriness (id. at 148-49); (4) Jackson’s refusal to file a proper CAC as directed “can only be viewed as willful or in bad faith” (id. at 149); and (5) “no alternative sanctions ... will be effective” in light of the fact that the previous $80,000 fine was unsuccessful (id.). On March 19, 2009, 2009 WL 773936, the District Court *346adopted only part of the R & R: the Court dismissed with prejudice 21 of the 25 claims in the CAC but, applying the sixth Poulis factor, allowed those few claims that the Court viewed as having colorable merit. (Id. at 73-74.)
Finally, Jackson filed three additional motions in the District Court that are relevant to this appeal. First, prior to filing the CAC, Jackson filed a motion to disqualify Harkins. Judge Angelí denied the motion, and the District Court confirmed the denial on March 20, 2009, 2009 WL 948741. Second, after filing the CAC, Jackson filed a motion for a preliminary injunction to enjoin both the merger between Rohm and Haas and The Dow Chemical Company, and the acquisition of Liberty Life by Safeco Insurance Company. The District Court adopted Judge Angell’s R & R and denied Jackson’s motion on March 20, 2009. Lastly, Jackson filed a motion to vacate the reference to Judge Angelí pursuant to 28 U.S.C. § 636(c)(4), alleging bias. On March 19, 2009, the District Court denied the motion: “[T]he record demonstrates not that Judge Angelí has failed to conduct the extended and elaborate proceedings capably, but, rather, that the plaintiff, through his counsel, has handled his role in the proceedings in a continuously counterproductive manner. Judge Angelí has fulfilled her responsibilities impeccably.” (Id. at 69.)
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s imposition of Rule 11 sanctions for abuse of discretion. Rogal v. Am. Broad. Cos., Inc., 74 F.3d 40, 44 (3d Cir.1996). The same standard applies to the District Court’s dismissal of a claim as a sanction, see Poulis, 747 F.2d at 868,2 and the District Court’s denial of a motion to vacate pursuant to § 636(c)(4), see Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir.2004). We review the District Court’s denial of a motion to disqualify an attorney for abuse of discretion unless we are asked to determine whether a disciplinary rule prohibits certain professional conduct, in which case review is plenary. United States v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980). Finally, “we use a three-part standard to review a District Court’s decision to grant or deny a preliminary injunction.” Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir.2006). “The District Court’s findings of fact are reviewed for clear error, the District Court’s conclusions of law are evaluated under a plenary standard, and the ultimate decision to grant the preliminary injunction is reviewed for abuse of discretion.” Id.
III.
Jackson challenges all of the above-mentioned orders by the District Court. Jackson argues that the District Court abused its discretion in granting the defendants’ motion for Rule 11 sanctions; erred in denying Jackson’s motion to disqualify Harkins; abused its discretion in dismissing with prejudice 21 of the 25 claims raised in the CAC; erred in denying Jackson’s motion for a preliminary injunction; and abused its discretion in denying Jackson’s motion to vacate the reference to Judge Angelí. We will address these contentions in turn, in approximate chronological order.
A.
The District Court levied Rule 11 sanctions against Jackson in the amount of *347$81,710.99 after determining that “Jackson’s claims in his original Jackson II complaint are predominantly without warrant and frivolous.” (App. at 130.) On appeal, Jackson argues that the District Court should not have sanctioned his counsel and that, even if sanctions were appropriate, the amount awarded was excessive.
By filing a complaint, an attorney certifies that, to the best of his or her “knowledge, information, and belief,” “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfriv-olous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed.R.Civ.P. 11(b)(2). If it appears that an attorney has violated this rule, opposing counsel may file a motion for sanctions and, “[i]f warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.” Fed. R.Civ.P. 11(c)(2). We have held that a “district court’s choice of deterrent is appropriate when it is the minimum that will serve to adequately deter the undesirable behavior” and that district courts should consider “whether the attorney has a history of this sort of behavior, the defendant’s need for compensation, the degree of frivolousness, and the ‘willfulness’ of the violation.” Zuk v. E. Pa. Psychiatric Inst. of the Med. Coll, of Pa., 103 F.3d 294, 301 (3d Cir.1996) (emphasis in original) (quotations and citations omitted).
The Jackson II claims brought pursuant to RICO and 42 U.S.C. § 1985 were completely without merit, and Jackson’s brief provides no sound arguments to the contrary. Accordingly, we find that the District Court did not abuse its discretion in imposing Rule 11 sanctions. In light of the frivolousness of these claims and the defendants having incurred expenses in defending against them, we also find that the District Court acted reasonably in sanctioning Jackson’s counsel in the amount of two-thirds of the defendants’ expenses. See Zuk, 103 F.3d at 301.
B.
The District Court also denied Jackson’s motion to disqualify Harkins, Rohm and Haas’ counsel. In challenging this order, Jackson cites alleged conflicts of interest between the defendants represented; a “pattern of obstructive conduct;” “the improper assertion of attorney-client privilege;” and “disciplinary violations.” (Appellants’ Br. at 91.)
We have held that a court may disqualify an attorney only when “disqualification is an appropriate means of enforcing the applicable disciplinary rule[,]” keeping in mind “any countervailing policies, such as permitting a litigant to retain the counsel of his choice and enabling attorneys to practice without excessive restrictions.” Miller, 624 F.2d at 1201. Here, Jackson’s conclusory allegations, which are not backed by evidence, do not warrant the extreme remedy of attorney disqualification. Therefore, we find that the District Court did not err in denying Jackson’s motion to disqualify Harkins from this case.
C.
Perhaps most critical to this appeal, Jackson contends that the District Court erred in dismissing 21 of the 25 claims in the CAC. Jackson’s argument is three-fold. First, Jackson asserts that the District Court failed to make “an independent assessment of the record based upon plaintiff’s objections to the R & R” (Appellants’ Br. at 15), as required by Federal Rule of Civil Procedure 72(b), which states, “The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). See also 28 U.S.C. § 636(b)(1). There is no support *348for this contention in the record: the District Court not only issued its own opinion (App. at 70-74), but explicitly stated in its order that it reviewed both the R & R and the parties’ responses (id. at 75.). Having reviewed the R & R, the District Court was permitted to adopt the R & R in part. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”). Therefore, we do not find that the District Court failed to make an independent assessment of the record.
Second, Jackson contends that Magistrate Judge Angelí and the District Court erred in the Poulis analysis. Under Poulis, we determine whether the District Court abused its discretion in using dismissal as a sanction by examining the following factors: “(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dila-toriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.” 747 F.2d at 868. “[N]ot all of the Poulis factors need be satisfied in order to dismiss a complaint.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992). Rather, “the decision to dismiss constitutes an exercise of the district court judge’s discretion and must be given great deference by this Court-a court which has had no direct contact with the litigants and whose orders, calendar, docket and authority have not been violated or disrupted.” Id.
We do not find that the District Court abused its discretion in its dismissal of the 21 CAC claims: (1) Jackson bore personal responsibility for the CAC after the May 20, 2008 hearing; (2)-(3) Jackson’s repeated filing of improper complaints with frivolous claims prejudiced the defendants and illustrates a history of dilatoriness; (4) Jackson’s refusal to abide by Judge An-gell’s last instructions regarding the CAC indicates that his counsel’s conduct was willful or in bad faith; (5) the continuation of improper conduct after the imposition of the $80,000 fine demonstrates that any sanction other than dismissal would have likely been ineffective; and (6) Jackson’s ERISA and RICO claims were without merit. Jackson’s litany of arguments to the contrary are simply not convincing.3
Finally, Jackson argues that he was entitled to notice and a hearing pursuant to Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir.1987). We have held that “[w]here a client had or should have had independent knowledge of the delinquency that was the grounds for dismissal, ... notice and hearing are not required.” Adams v. Trs. of N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 872 (3d Cir.1994). Here, the May 20, 2008 hearing was sufficient to put Jackson personally on notice.
In summary, we find that the District Court did not err in dismissing 21 of the 25 claims in the CAC.
D.
Jackson also argues that the District Court erred in denying his motion for a *349preliminary injunction to enjoin the merger involving Rohm and Haas, and the acquisition involving Liberty Life, based on the defendants’ alleged failure to disclose the three Jackson cases to the Securities and Exchange Commission. We will dismiss this claim as moot. We have stated that “a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir.2003) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)) (quotations and alteration omitted). Here, the claims underlying the preliminary injunction have been dismissed with prejudice. See Section C, supra. Moreover, the merger and acquisition have already occurred. See Scattergood v. Perelman, 945 F.2d 618, 621 (3d Cir.1991) (“The merger has taken place, and this court has held on numerous occasions that when the event sought to be enjoined in a preliminary injunction has occurred, an appeal from the order denying the preliminary injunction is moot.”).
E.
Finally, Jackson challenges the District Court’s refusal to vacate the reference to Judge Angelí. Jackson argues that Judge Angelí “demonstrated a severe bias in favor of defendants and against plaintiff;” failed to follow proper procedure; and “engaged in a course of conduct ... which appeared to facilitate [Rohm and Haas] and Liberty [Life] in completing their respective transactions.” (Appellants’ Br. at 71.)
“The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge[J” 28 U.S.C. § 636(c)(4). Here, we see nothing warranting a finding of “extraordinary circumstances.” See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir.1990) (“Disagreement with a judge’s determinations certainly cannot be equated with the showing required to so reflect on his impartiality as to dictate recusal.”). See also United States v. Wecht, 484 F.3d 194, 217 (3d Cir.2007) (holding that district courts have wide discretion in the management of their cases). If anything, Judge Angelí demonstrated the utmost patience with Jackson in light of his counsel’s intractable conduct.
IV.
For the foregoing reasons, we will affirm the orders of the District Court.
. Prior to the referral, Jackson filed multiple amended complaints, and the defendants responded with multiple motions to dismiss.
. Likewise, we review the District Court's dismissal of a claim pursuant to Federal Rules of Civil Procedure 41(b) and 8 for abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002); In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir.1996).
. For example, Jackson contends that the first Poulis factor requires more than his requested presence at hearings, but he sets forth no case law in support of this proposition. Jackson also argues that Judge Angelí improperly considered counsel's behavior during all three federal cases, even though the cases were related, partly consolidated, and against the same defendants. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477692/ | OPINION OF THE COURT
PADOVA, Senior District Judge.
Sonny Surine appeals his sentence to a term of 60 months of imprisonment, three years of supervised release, and a $100 special assessment for conspiring to possess with intent to distribute 50 grams or more of cocaine base, or crack, in violation of 21 U.S.C. § 846. Surine argues that the District Court erred in (1) applying the firearm enhancement pursuant to U.S.S.G. § 2Dl.l(b)(l), (2) denying his request for a minor role adjustment pursuant to U.S.S.G. § 3B1.2(b), (3) failing to apply the enumerated factors under U.S.S.G. § 5K1.1, (4) failing to follow the three-step sentencing process outlined in United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), and (5) imposing an unreasonable sentence. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. For the following reasons, we will affirm.
I.
Because we write for the benefit of the parties, we confine our discussion to the facts salient to this appeal. The charge against Surine arose out of Surine’s involvement in a conspiracy over the course of approximately one and a half years to purchase and resell both powder and crack cocaine. For the duration of the conspiracy, Surine lived with his father, Paul Su-rine, in a trailer complex in Tioga County, Pennsylvania. In the summer of 2005, Paul Surine and his girlfriend, Lisa Lehman, began buying cocaine from individuals in the Elmira, New York area. They would then, along with Surine and others, weigh out the cocaine, package it for resale, and eventually resell it. Lehman and Paul Surine would also cook the powder cocaine into crack. For the duration of the conspiracy, cocaine deliveries were made from the New York suppliers to the Surine complex every other day. Occasionally Paul Surine would send others to the Rochester and Elmira area to pick up the cocaine and bring it back to Tioga County for resale. On at least one of those occasions, a firearm was exchanged for cocaine. Surine made approximately 20 trips to New York to purchase cocaine, bringing back anywhere from 10 to 32 grams to Tioga County each time. Approximately 100-200 individuals purchased cocaine at the Surine complex. Surine was one of several people who sold cocaine at the Surine complex. On one occasion, he sold cocaine to an undercover law enforcement officer.
Surine was arrested on February 1, 2007, and on August 1, 2007, was charged with conspiracy with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 846. He pled guilty to that charge on September 5, 2007. On July 14, *3522009, the District Court held a sentencing hearing, at which it granted the Government’s Motion Recommending Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), applied a two-level enhancement because firearms were possessed and traded during the conspiracy, and denied Surine’s request for a minor role adjustment. Although the statutory minimum sentence Surine faced was 10 years of imprisonment, and the Sentencing Guidelines recommended a pre-departure sentencing range of 87 to 108 months of imprisonment, the District Court sentenced Surine to 60 months of imprisonment, three years of supervised release, and a special assessment of $100.
II.
In considering Surine’s challenges to his sentence, we “review factual findings relevant to the [Sentencing] Guidelines for clear error and ... exercise plenary review over a district court’s interpretation of the Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007) (en banc). “A decision is clearly erroneous if the reviewing court is left with the definite and firm conviction based on all the evidence that the trial court made a mistake.” United States v. Perez, 280 F.3d 318, 351 (3d Cir.2002) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948), and Davis v. United States Steel Supply, No. 2571, 1981 WL 26981, at *6 (3d Cir. Sept. 24, 1981), vacated on other grounds, 688 F.2d 166 (3d Cir.1982)). Additionally, we review the sentence imposed by the District Court for abuse of discretion. United States v. Sevilla, 541 F.3d 226, 230 (3d Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).
III.
Surine argues that the District Court improperly imposed the firearm enhancement based upon testimony that was not made part of the record at sentencing and that was insufficient to establish the applicability of the enhancement. The Government bears the burden of establishing by a preponderance of the evidence that a sentencing enhancement applies. United States v. Napier, 273 F.3d 276, 279 (3d Cir.2001). The Sentencing Guidelines provide that a defendant’s offense level is increased by two levels if a dangerous weapon, including a firearm, was possessed during the offense. U.S.S.G. § 2Dl.l(b)(l). If a defendant himself did not possess the dangerous weapon, imposition of the enhancement is permissible based upon the possession by another person if such possession was a “reasonably foreseeable aet[ ] ... in furtherance of the jointly undertaken criminal activity.” U.S.S.G. § lB1.3(a)(l)(B); see also United States v. Thornton, 306 F.3d 1355, 1358 (3d Cir.2002).
In imposing the firearm enhancement, the District Court clearly identified several bases for its decision: Surine’s grand jury testimony, the testimony of other co-conspirators, and Surine’s testimony at a co-defendant’s sentencing that he was at his father’s trailer almost every day. At the sentencing hearing, the District Court read from a transcript of Surine’s grand jury testimony in which Surine testified that he had seen his father sell guns on at least one occasion. After identifying other instances of testimony that established that Paul Surine traded guns for crack cocaine, the District Court concluded that Surine knew that the possessing and trading of firearms was taking place in furtherance of the conspiracy because he had seen it himself. Even assuming arguendo that the District Court could not properly consider Surine’s other testimony or the testimony of his co-defendants, the portion of Surine’s grand jury testimony that was read into the record at sentencing is sufficient to support the District Court’s impo*353sition of the firearms enhancement, as it demonstrates that Surine knew that his father sold guns as part of the drug trafficking conspiracy and saw at least one such sale take place. Therefore, we conclude that the Government proved by a preponderance of the evidence that the firearm enhancement applied, and that the District Court did not err in imposing the enhancement.
IV.
Surine next argues that the District Court erred in denying his request for a minor role adjustment pursuant to U.S.S.G. § 3B1.2(b) because he was significantly less culpable than his co-conspirators. Specifically, he contends that although he traveled to Rochester with other co-conspirators to purchase cocaine and assisted the conspiracy as a drug courier, he took his orders directly from his father and did not play a role in organizing operations, negotiate payments, exercise control over anyone else, or share in the profits.
The Sentencing Guidelines provide that a defendant’s offense level may be reduced by two levels “[i]f the defendant was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). The comments to the Guidelines define a minor participant as one “who is less culpable than most other participants, but whose role could not be described as minimal.” Id. cmt. n. 5. By contrast, a minimal participant is one “who plays a minimal role in concerted activity[,]” is “plainly among the least culpable of those involved in the conduct of a group[,]” and whose “lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.” Id. cmt. n. 4. The sentencing court is afforded broad discretion in the application of this section, which is “heavily dependent on the facts of a particular case.” United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir.1998). Factors to be considered in determining whether a minor participant adjustment is warranted include “ ‘the nature of the defendant’s relationship to other participants, the importance of the defendant’s actions to the success of the venture, and the defendant’s awareness of the nature and scope of the criminal enterprise.’ ” United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.1991) (quoting United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990)).
At the sentencing hearing, the District Court summarized the Probation Officer’s position and heard arguments from the Government and Surine’s counsel regarding whether an adjustment was warranted. The District Court then concluded that there had been many participants with limited roles and that there was no basis to find that Surine was substantially less culpable than the average participant and therefore entitled to a minimal role adjustment. That Surine may have been following his father’s orders and had no part in the organization of the trafficking conspiracy, or that his role, as described by his counsel, was that of a courier or mule, does not mean that he is automatically entitled to a minor role adjustment. See, e.g., Headley, 923 F.2d at 1084 (noting that “[t]he fact that a defendant’s participation in a drug operation was limited to that of courier is not alone indicative of a minor or minimal role”); see also United States v. Walker, 1 F.3d 423, 427-28 (6th Cir.1993) (finding that the mere fact that defendant courier “was less culpable than ‘organizers, leaders, managers, or supervisors’ [did] not in itself establish that the defendant was a minor participant”); United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989) (rejecting the argument that, as a matter of law, minimal participant status may be inferred from courier status). Therefore, we conclude that the District Court did not err in denying Surine’s request for a minor role adjustment.
*354V.
Surine next argues that the District Court improperly considered only one of the five enumerated factors set forth in U.S.S.G. § 5K1.1 in granting the Government’s motion for a substantial assistance departure. Section 5K1.1 of the Sentencing Guidelines permits the sentencing court, upon motion by the government, to depart from the guidelines where “the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” U.S.S.G. § 5K1.1. Section 5Kl.l(a) further provides that in determining the appropriate reduction, the sentencing court should consider the following factors:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
Id. “[A] District Court has authority to refuse or grant a downward departure under § 5K1.1 and is granted broad discretion in determining the extent of the reduction.” United States v. Carey, 382 F.3d 387, 392 (3d Cir.2004). However, it must indicate its consideration of the § 5K1.1 factors, as well as any other factors it deems relevant, in determining whether and to what extent to grant a reduction. United States v. Torres, 251 F.3d 138, 147 (3d Cir.2001). We have “strongly urge[d] sentencing judges to make specific findings regarding each factor and articulate thoroughly whether and how they used any proffered evidence to reach their decision.” Id. The sentencing judge therefore must “conduct an individualized examination of the defendant’s substantial assistance ... [and] acknowledge § 5Kl.l’s factors in his or her analysis.” Id.
The record demonstrates that the District Court agreed with the Government’s analysis of the § 5K1.1 factors in its adoption of the Government’s recommendations and grant of a two-level downward departure. The Government presented a Motion Recommending Downward Departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) that recommended a two-level departure. The Government’s Motion tracked the § 5K1.1 factors, suggesting that Surine satisfied those factors as follows: (1) Surine was willing to testify against other co-defendants; (2) Surine’s cooperation was significant because he testified against other co-defendants and provided valuable information regarding the drug suppliers; (3) the information Surine provided to the Government was corroborated by other witnesses; (4) Surine faced a risk of injury by being incarcerated in a county prison with other co-defendants; and (5) Surine’s cooperation was timely. The Government also provided a more detailed description of Surine’s cooperation in its Sentencing Memorandum, which the District Court considered. The District Court granted the Motion Recommending Downward Departure and imposed a sentence significantly less than the statutory minimum of 10 years or the Guidelines range of 87 to 108 months of imprisonment. Consequently, we find that the District Court indicated its consideration of the § 5K1.1 factors and did not err in its interpretation of the Guidelines in granting the Government’s Motion Recommending Downward Departure.
*355VI.
Finally, Surine argues that the District Court failed to follow the three-step process outlined in Gunter in determining an appropriate sentence, and that the sentence imposed by the District Court was unreasonable in its totality. In reviewing the District Court’s sentence for abuse of discretion, we follow a two-step process: first, we must ‘“ensure that the district court committed no significant procedural error.’ ” Sevilla, 541 F.3d at 230 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Next, if we “ ‘determine that the district court has committed no significant procedural error, we then review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines range.’ ” Id. (quoting United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008), and citing Gall, 552 U.S. at 51, 128 S.Ct. 586).
A.
Surine argues that this case must be remanded for resentencing because the District Court failed to adhere to the three-step process set forth in Gunter, and instead ruled on the Government’s § 5K1.1 motion only after it heard arguments on the § 3553(a) factors. The district court must follow a three-step process to determine the appropriate sentence: “(1) calculate the applicable Guidelines range, (2) formally rule on any departure motions, and (3) exercise its discretion in applying the factors set forth in 18 U.S.C. § 3553(a).”2 United States v. Grier, 585 F.3d 138, 141-42 (3d Cir.2009) (citing Gunter, 462 F.3d at 247). The District Court followed this process in the correct sequence. First, the District Court calculated the Guidelines range as 87 to 108 months. Next, it heard arguments from Surine’s counsel and the Government regarding the § 5K1.1 motion. The District Court then heard arguments from both parties regarding the § 3553(a) factors. Next, the District Court ruled on the § 5K1.1 motion. Only after that did the District Court discuss the § 3553(a) factors. It is thus clear that although the District Court heard the parties’ arguments regarding the § 3553(a) factors before ruling on the § 5K1.1 motion, it ruled on the § 5K1.1 motion before exercising its discretion in applying the § 3553(a) factors. Accordingly, we find that the District Court did not commit a significant procedural error and therefore did not abuse its discretion.
*356B.
Surine argues that the sentence imposed by the District Court was unreasonable because he contends that the District Court failed to consider four § 5K1.1 factors, all of which militated in favor of a greater downward departure. Surine further argues that the sentence was unreasonable because the District Court failed to give adequate weight to his history of physical and mental abuse at the hands of his father, which enabled his father to manipulate him into participating in the drug trafficking conspiracy. Since we have determined that the District Court did not commit significant procedural error, we review the substantive reasonableness of the District Court’s sentence for abuse of discretion. Sevilla, 541 F.3d at 230 (quoting Wise, 515 F.3d at 218). “ ‘[A] district court will be held to have abused its discretion if its decision was based on a clearly erroneous factual conclusion or an erroneous legal conclusion.’ ” United States v. Hoffecker, 530 F.3d 137, 196 (3d Cir.2008) (quoting Wise, 515 F.3d at 217). Ultimately, in considering whether a sentence is reasonable, we examine “ ‘whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).’ ” United States v. Goff, 501 F.3d 250, 254 (3d Cir.2007) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)). While the sentencing court must consider all of the § 3553(a) factors, it need not explicitly comment on every factor if “ ‘the record makes clear the court took the factors into account at sentencing.’ ” United States v. Parker, 462 F.3d 273, 276 (3d Cir.2006) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006)). In reviewing the sentence imposed by the District Court, we apply a deferential standard and must affirm the District Court’s sentence “[a]s long as [it] falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218. An appellant bears the burden of proving the sentence was unreasonable. Cooper, 437 F.3d at 332.
To the extent that Surine asserts that his sentence was unreasonable because the District Court failed to consider four § 5K1.1 factors, we have found that the District Court did consider those factors. Moreover, we may not consider this argument, because we lack jurisdiction to review the extent of a discretionary downward departure for substantial assistance. Torres, 251 F.3d at 145 (citing United States v. Parker, 902 F.2d 221, 222 (3d Cir.1990)).
Surine further contends that, in light of his history of suffering physical, verbal, and sexual abuse, the District Court’s imposition of a 60-month sentence was grossly unreasonable and its comments regarding his background were “no more than lip service.” There is no dispute that Surine’s life history is tragic. However, it is clear that the District Court gave serious consideration to Surine’s background. Before imposing a sentence, the District Court heard from Surine’s counsel, who described the many horrors Surine faced growing up. The District Court also heard from Surine himself, who indicated that he took responsibility for his part in the conspiracy and described his relationship with his family, his depression, and his drug addiction. Finally, the District Court heard from the Government, which acknowledged Surine’s difficult youth but also pointed out that Surine chose to return to his father’s household upon reaching 18 years of age and that the drug conspiracy ruined many other lives.
After hearing from Surine and the Government, the District Court addressed the § 3553(a) factors, including Surine’s history and personal characteristics. The District Court first addressed the nature of *357the offense, noting the impact of the drug trafficking conspiracy in which Surine was involved on individuals and families in the Tioga County area. The District Court then discussed Surine’s history and characteristics, describing his lack of criminal history and his troubled upbringing. The District Court remarked that Surine’s “childhood and his youth have been ... one of the most abusive, both mentally and physically, that I’ve seen.” App. at 34a. The District Court then imposed a below-Guidelines sentence in order “to take into account the ... extraordinarily [sic] physical and mental abuse that this defendant was subject to throughout his youth.” Id. at 35a. In imposing a sentence of 60 months of imprisonment, the District Court stated its belief that such a sentence was consistent to the extent necessary with the sentences imposed upon other members of the conspiracy, as well as “necessary ... to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant.” Id. at 35a.
In light of the record, which indicates that the District Court considered the § 3553(a) factors and imposed a sentence that reflects such considerations, we find that Surine has not met his burden of proving that the sentence imposed by the District Court was unreasonable. Accordingly, we conclude that the District Court did not abuse its discretion in imposing a 60-month sentence.
VII.
For the foregoing reasons, the judgment of the District Court will be AFFIRMED.
. Section 3553(a) requires the district court to consider the following factors in determining the appropriate sentence:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission ... subject to any amendments made to such policy statement by act of Congress
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477694/ | OPINION OF THE COURT
PADOVA, Senior District Judge.
Appellants Daniel Todd Slinger, Joanne Slinger, and Gregory Slinger brought this action against Michael Rubinaccio, Joseph Devine, and Michael J. Rogers (collectively “Appellees”) for false arrest, wrongful incarceration, wrongful entry into the Sling-ers’ home, and negligence pursuant to 42 U.S.C. § 1983 and state law. They appeal from an order of the United States District Court for the District of New Jersey dismissing their claims against Appellees pursuant to Federal Rule of Civil Procedure 12(b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we will reverse.
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 the facts alleged in the Complaint that are necessary to our analysis. The Slingers are residents of Rox-bury Township, Morris County, New Jersey. At all relevant times, Rubinaccio was the Prosecutor of Morris County, Devine was the Chief of Detectives in the Morris County Prosecutor’s Office, and Rogers was employed by the Morris County Prosecutor’s Office as a Sergeant.
Daniel Slinger lived with his mother, Joanne Slinger, and his brother, Gregory Slinger. Sometime between 6:00 a.m. and 7:30 a.m. on November 19, 2005, law enforcement personnel entered the Slinger residence and arrested Daniel Slinger pursuant to a warrant issued by a judge of the New Jersey Superior Court on November 18, 2005. Daniel Slinger was then transported to the Morris County Correctional Facility where he was held until his moth*359er posted bail for him later that day. Daniel Slinger’s arrest allegedly resulted from a negligent investigation in which he was misidentified as a participant in criminal activity. Rogers was the complainant on the warrant. The charges against Daniel Slinger were administratively dismissed on December 14, 2005.
The Complaint asserts claims against the State of New Jersey, the County of Morris, the Morris County Prosecutor’s Office, Appellees, and John Does 1-20. The claims against Appellees are brought against those individuals in both their official and individual capacities. The Complaint asserts claims against all Defendants for negligence pursuant to New Jersey common law; false arrest and false imprisonment pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983; wrongful and war-rantless entry into a residence pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983; and negligent and careless training and supervision pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983.
Motions to Dismiss were filed by the State of New Jersey, the County of Morris, and collectively by the Morris County Prosecutor’s Office and Appellees. The District Court granted all three Motions. See Slinger v. New Jersey, Civ. A. No. 07-5561, 2008 WL 4126181, at *1 (D.N.J. Sept. 4, 2008). The District Court dismissed the claims against all Defendants, except for the County of Morris, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that these Defendants were immune from suit pursuant to the Eleventh Amendment. The District Court dismissed the Slingers’ claims against the County of Morris for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Slingers moved for reconsideration of the District Court’s order granting the Motions to Dismiss. App. at 217a-224a. The District Court denied that Motion. See Slinger v. New Jersey, Civ. A. No. 07-5561, 2008 WL 5416402 (D.N.J. Dec. 22, 2008). The Sling-ers do not presently challenge the dismissal of their claims against the State of New Jersey, the County of Morris, or the Morris County Prosecutor’s Office.
II.
The Slingers ask us to find that the District Court erred in dismissing the claims they asserted against Appellees in their individual capacities. Our standard of review of the District Court’s dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(1) is plenary. Solis v. Local 234, Transp. Workers Union, 585 F.3d 172, 176 (3d Cir.2009) (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) and Reich v. Local 30, Int'l Bhd. of Teamsters, 6 F.3d 978, 981-82 (3d Cir.1993)).
Appellees asserted a facial challenge to subject matter jurisdiction. A facial attack on subject matter jurisdiction contests “the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true.” Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002) (citation omitted). Consequently, “ ‘[i]n an appeal from a grant of a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we review only whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court.’” Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006)).
*360III.
The District Court based its dismissal of the Slingers’ claims against Appellees on the Eleventh Amendment. “The Eleventh Amendment to the United States Constitution protects an unconsenting state or state agency from a suit brought in federal court, regardless of the relief sought.” Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir.2009) (citing MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir.2001)). Eleventh Amendment immunity also applies to a county agency if the state is the real party-in-interest. Chisolm v. McManimon, 275 F.3d 315, 322 (3d Cir.2001) (citing Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). This immunity further extends to employees of that agency sued in their official capacities. See Capogrosso, 588 F.3d at 185 (citing Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir.1995)). The Slingers do not challenge the District Court’s determination that Appellees are entitled to Eleventh Amendment immunity in their official capacities.
The District Court, however, also determined that Appellees are entitled to Eleventh Amendment immunity when sued in their individual capacities because the claims against them arose from their performance of their official law enforcement duties:
Despite Plaintiffs having pled that the Prosecutor Defendants are being sued in both their individual and official capacities, all of the actions which form the basis of the Complaint were taken by Prosecutor Defendants in their official capacities. There are no facts alleged in the Complaint that suggest that the Prosecutor Defendants acted outside of their official capacity. The Complaint only makes allegations as to Prosecutor Defendants’ conduct in investigating and arresting Daniel. Assuming Rubinaccio participated in the execution of a lawfully obtained arrest warrant at Plaintiffs’ home, such action was an execution of his prosecutorial duties. Similarly, any actions taken by Devine and Rogers, such as swearing to the arrest warrant, were thereby taken in their official capacities as an active part of the investigation they were conducting. Therefore, violations by Prosecutor Defendants, if any, “arose out of the execution of their sworn duties to enforce the law using all the tools lawfully available to them to combat crime.” Hyatt v. County of Passaic, [Civ. A. No. 04-1545, 2008 WL 839556, at *11 (D.N.J. Mar. 24, 2008) ]. Accordingly, all such conduct is properly considered “official.” Therefore, the Complaint against Prosecutor Defendants is dismissed because it is a suit against them in their official capacities as State employees.
Slinger, 2008 WL 4126181, at *10.
The Slingers contend that this determination was erroneous. They are correct. The Supreme Court held in Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), that the Eleventh Amendment does not bar suits brought against state officials in their individual capacities, even if the actions which are the subject of the suit were part of their official duties: “We hold that state officials, sued in their individual capacities, are ‘persons’ within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.” Id. at 31, 112 S.Ct. 358. See also Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“[SJince Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been *361settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.”). We conclude, accordingly, that the District Court erred in dismissing the claims brought by the Slingers against Ap-pellees in their individual capacities for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
Appellees argue that we should affirm the decision of the District Court notwithstanding any error, because the Slingers waived this claim, either through the invited error doctrine or by failing to preserve their claim of error before the District Court. The invited error doctrine “prohibits a defendant from seeking appellate review of alleged errors invited or induced by himself.” United States v. Riccobene, 709 F.2d 214, 228 (3d Cir.1983) (internal quotation omitted). Appellees contend that the Slingers invited the District Court’s error by conceding, in their letter brief opposing the Motions to Dismiss, that “the technical arguments regarding 11th Amendment immunity and official capacity are in all likelihood well founded” and stating that they were “willing to enter Stipulations of Dismissals to that effect.” App. at 197a. The Slingers did not invite the District Court’s error, however, because they specifically excluded their individual capacity claims from that concession, stating that “[t]he individual claims and qualified immunity require discovery.” Id.
The Slingers also asserted their claim of error before the District Court in their letter brief supporting their Motion for Reconsideration of the District Court’s dismissal of the Complaint. The Slingers argued, in that brief, that the District Court “improperly dismissed the claims against the [Appellees] based upon their individual capacities” and that “clear Constitutional violations ... would subject those involved [to] individual capacity lawsuits.” Id. at 221a, 224a. We conclude that the Slingers thereby preserved this issue for appeal. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.2009) (“For an issue to be preserved for appeal, a party ‘must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits.’ ” (quoting Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir.1999))).
Appellees also contend that we should affirm the District Court’s decision dismissing the Complaint even if the District Court erred with respect to the Eleventh Amendment analysis, because the Complaint fails to state claims against them upon which relief may be granted. “ ‘[W]e may affirm a correct decision of the district court on grounds other than those relied upon by the district court.’ ” Holk v. Snapple Beverage Coup., 575 F.3d 329, 335 (3d Cir.2009) (quoting Cent. Pa. Teamsters Pension Fund v. McCormick Dray Line. Inc., 85 F.3d 1098, 1107 (3d Cir.1996) and citing Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937)). “However, this rule does not apply to cases in which the party has waived the issue in the district court.” Id. We may only “ ‘affirm the lower court’s ruling on different grounds [if] the issue which forms the basis of our decision was before the lower court.’ ” Id. at 335-36 (quoting Morse v. Lower Merion Sch. Disk, 132 F.3d 902, 904 n. 1 (3d Cir.1997) and citing Exxon Shipping Co. v. Baker, — U.S. —, 128 S.Ct. 2605, 2616-18, 171 L.Ed.2d 570 (2008) and Bailey v. Dart Container Carp, of Mich., 292 F.3d 1360, 1362 (Fed. Cir .2002)).
Appellees argue that the Complaint fails to state a claim upon which relief may be granted for two reasons: (1) because it does not allege facts upon which it could *362be concluded that there was no probable cause underlying the warrant for Daniel Slinger’s arrest and (2) because New Jersey does not recognize a cause of action for negligent investigation. None of the Defendants in this action, including Appel-lees, raised these grounds for dismissal of the Complaint before the District Court. See App. at 57a-237a. Consequently, these arguments may not be considered in this appeal.
IV.
For the foregoing reasons, we will reverse the District Court’s dismissal of the Complaint as to the claims asserted against Appellees in their individual capacities and we will remand this action with instructions that the District Court permit those claims to go forward. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477696/ | *363OPINION OF THE COURT
CONNER, District Judge.
Appellant Eric Keller appeals his sentence following his plea of guilty to a ten-count indictment charging him with mail fraud in violation of 18 U.S.C. § 1341. Specifically, Keller appeals a special condition of supervised release banning his use of the internet to create or conduct “business websites” during the three year term of supervised release. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and will affirm.
Background
The parties are familiar with the facts and proceedings in the District Court, so we will only briefly revisit them here. Keller owned and operated an internet retail candy business via several websites. He engaged the commercial shipping services of United Parcel Service (“UPS”) to deliver candy to his internet customers. Using fraudulent information, Keller established a succession of twelve UPS shipping accounts. When one shipping account was suspended for non-payment, Keller abandoned that account and opened another, utilizing aliases and other subterfuge to hide his identity. Ultimately, UPS suffered a loss of approximately $155,650.
On September 4, 2007, Keller pleaded guilty to ten counts of mail fraud in violation of 18 U.S.C. § 1341. On August 1, 2008, the District Court imposed a term of incarceration of 27 months, a three year term of supervised release and full restitution. Pertinent to the instant appeal, the District Court imposed the following special condition of supervised release: “As a further special condition of supervised release, the defendant shall cease and no longer create or conduct any business websites via the internet.” App. 47.1
Standard of Review
We review challenges to special conditions of supervised release under an abuse of discretion standard. United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir. 2007); United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006).
Discussion
District courts may impose a variety of special conditions of supervised release provided, however, that such conditions are reasonably related to the statutory factors set forth in 18 U.S.C. § 3553(a).2 Moreover, district courts must make factual findings that establish some connection between the special condition and the offense of conviction or other characteristics of the defendant. United States v. Miller, 594 F.3d 172, 183-85, 2010 WL 395917 at *9-10 (3d Cir. February 5, 2010); United States v. Heckman, 592 F.3d 400, 404-05 (3d Cir.2010). We will affirm special conditions that have “ ‘any viable basis ... in the record before the District Court ....’” US. v. Voelker, 489 F.3d 139, 144 (3d Cir.2007) (quoting United States v. Warren, 186 F.3d 358, 367 (3d Cir.1999)).
Pursuant to our recent precedential opinion in United States v. Heckman, su*364pra, we examine special conditions on a defendant’s use of the internet with sensitivity to three factors: “(1) the length and (2) coverage of the imposed ban; and, (3) the defendant’s underlying conduct.” Id. at 405 (emphasis in original). Accord, United States v. Miller, supra.
Applying these standards to the special condition at issue, we have no hesitation in upholding it. First, we note that the District Court carefully considered the underlying fraud in crafting the special condition and made appropriate factual findings to support it:
I make a finding that there is a direct relationship between the defendant’s use of the internet and the crime for which he has pled guilty in this Court.
An imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that absent such restriction, the defendant will continue to engage in unlawful conduct similar to that which the defendant was convicted, and that the time frame and structure of the special condition is for the minimum time frame and the minimum extent necessary to protect the public and that is the length of time of supervised release.
Sentencing Transcript, app. at 47.
With respect to duration, the restriction is limited to three years — the term of supervised release. The restriction is also temperate in scope. It prohibits only the use of the internet to establish or conduct mail order businesses.3 Finally, it is directly related to the criminal conduct underlying Keller’s conviction, to wit: mail fraud emanating from an internet candy business.
In sum, we conclude that there is a sufficient nexus between the narrow restriction on Keller’s use of the internet and the objectives of supervised release, particularly deterrence and protection of the public. We also conclude that it does not impose a “greater deprivation of liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2). Accordingly, we will affirm the judgment of the District Court.
. We note a slight discrepancy in the wording of the special condition in the judgment form which states: “As a further special condition of supervised release, the defendant shall cease and no longer create or conduct any businesses/websites via the internet for the period of supervision.” App. 12. Given the District Court's explicit description of the condition at the time of sentencing, we are not troubled by this minor and, presumably, inadvertent difference in wording. See Sentencing Transcript, app. at 34. (The Court: "The occupational restriction ... is his using the internet for mail order business, and that's the basis of this crime.”)
. We are mindful that special conditions cannot involve a "greater deprivation of liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2).
. In his brief, Keller characterizes the condition as an "extremely overbroad and excessively restrictive occupational restriction” and suggests heightened scrutiny of the condition because "it puls him and his established company out of business.” Brief for Appellant at 11, 15. In light of the underlying fraud perpetrated by Keller while operating his "established company,” this argument is specious. To the extent the restriction excludes Keller from any internet-based mail order business for three years, it is deterring him and it is protecting the public, albeit temporarily, from further acts of fraud. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477700/ | OPINION OF THE COURT
PER CURIAM.
Anthony Mahoney appeals from the District Court’s denial of the petition for a writ of habeas corpus he filed pursuant to 28 U.S.C. § 2254. For the following reasons we will affirm.
I
In 1998 Clark and Barbara Ferry hired Mahoney to represent them with respect to an automobile accident in which their son had been killed.1 In January 1999 the offending driver’s insurance carrier advised the Ferrys that the case had been settled for $75,000 and that they had mailed to Mahoney a check in that amount, made out to “Clark Ferry & Barbara Ferry ... and Mahoney & Mahoney.” When the Ferrys repeatedly asked Mahoney when they would receive their portion of the settlement, he advised them that he was awaiting certain tax releases. Eventually the Ferrys obtained a copy of the check, on the back of which they found three signatures, two purporting to be the Ferrys’ and one on behalf of Mahoney & Mahoney. Suspicious, the Ferrys contacted the Westfield, New Jersey, Police Department and the Union County Prosecutor.
Mahoney was eventually convicted in the Superior Court, Law Division, Union County, of various crimes, including third degree theft, third degree misapplication *370of entrusted property, and two counts of third degree forgery. The court sentenced Mahoney to two concurrent three-year terms of probation. During sentencing Mahoney applied unsuccessfully for entrance into the Pre-Trial Intervention (PTI) program. The Appellate Division affirmed the denial of Mahoney’s PTI application, but reversed Mahoney’s convictions based on the trial court’s exclusion of defense witness testimony concerning Ma-honey’s character traits as an attorney, failure to instruct the jury on how to use Rule 1:21-6 (setting forth an attorney’s record keeping and trust fund accounting obligations), and allowing improper statements by the prosecutor during summation. State v. Mahoney, 376 N.J.Super. 63, 868 A.2d 1171 (N.J.Super.A.D.2005). The New Jersey Supreme Court agreed that failure to instruct the jury how to apply Rule 1:21-6 was error, but held that the trial court’s limitation on the testimony of character witnesses was proper and that the prosecutor’s statements did not deny Mahoney a fair trial. Accordingly, the court affirmed in part, reversed in part, reinstated Mahoney’s forgery convictions, and remanded for a new trial on the counts of the indictment charging Mahoney with third degree theft and third degree misapplication of entrusted property. State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006). Those two counts were subsequently dismissed.
While still on probation,2 in July 2006 Mahoney filed a § 2254 habeas corpus petition in the United States District Court for the District of New Jersey raising three claims:
1.The trial court violated Mahoney’s rights under the Equal Protection and Due Process clauses when it denied him admission into the PTI program.
2. The trial court’s restrictions on Ma-honey’s attempts to introduce evidence concerning marital infidelity and related issues violated his rights under the Sixth Amendment’s Confrontation Clause.
3. The trial court’s limitations on testimony from Mahoney’s character witnesses precluded him from using his professional character as a defense, in violation of his right to Due Process.
The District Court concluded that Maho-ney’s petition was “mixed.” Although Ma-honey exhausted Claim 1 in state court, he presented Claims 2 and 3 in state court solely in terms of state law; as a result, Claims 2 and 3 are unexhausted. Because AEDPA’s statute of limitations had already run, the District Court considered “staying and abeying” Mahoney’s petition to allow him to return to state court to exhaust Claims 2 and 3 under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), rather than dismissing the petition without prejudice under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The court declined to do so, however, because it determined that none of Mahoney’s claims had merit. See Rhines, 544 U.S. at 277, 125 S.Ct. 1528 (“[T]he district court would abuse its discretion if it were to grant ... a stay when [petitioner’s] unexhausted claims are plainly meritless.”). Accordingly, the court denied Mahoney’s petition and declined to issue a certificate of appealability.
Mahoney filed a timely notice of appeal. We granted his request for a cei'tificate of appealability for the question whether the District Court should have stayed his petition or dismissed it without prejudice instead of denying it. We have jurisdiction *371under 28 U.S.C. §§ 1291 and 2253(c), and review the District Court’s decision not to stay for abuse of discretion. Rhines, 544 U.S. at 277-78, 125 S.Ct. 1528; Crews v. Horn, 360 F.3d 146, 149 (3d Cir.2004).
II
Faced with Mahoney’s “mixed”3 petition, the District Court had four options: dismiss the petition without prejudice under Rose, “stay and abey” under Rhines, allow Mahoney to delete his unexhausted claims, see Rhines, 544 U.S. at 278, 125 S.Ct. 1528, or, if all of his claims are meritless, deny the petition under § 2254(b)(2) (allowing denial of a petition on the merits “notwithstanding the failure of the applicant to exhaust ... ”).
As the District Court explained, the expiration of AEDPA’s statute of limitations made the first option unattractive, and thus triggered consideration of the second. However, a court may not “stay and abey” without first determining that “there was good cause for the petitioner’s failure to exhaust his claims ... in state court.” Id. at 277, 125 S.Ct. 1528. Even though our order granting Mahoney’s request for a certificate of appealability cited Rhines, Mahoney has failed to address the issue of good cause at all, let alone make the requisite showing. For that reason alone, we cannot conclude that the District Court abused its discretion in declining to stay the petition and we need not reach the merits of Claims 2 and 3.
Ill
As for Claim 1, Mahoney argues that the prosecutor’s reasons for denying his application to participate in the PTI program — primarily because his crime was a “breach of the public trust” — are without basis because he is an attorney in private practice, not a public employee. Moreover, he was eminently qualified to participate for various reasons, including the facts that he had no prior record and paid the Ferrys in full five months before the prosecutor filed a criminal complaint. Ma-honey concedes that the Appellate Division upheld denial of his admission to the PTI program based on abuse of public trust, but claims that another panel of the same court reached the opposite conclusion. He relies on the fact that public employees, including attorneys, have been admitted to the program to support his contention that denial of his application amounted to a violation of his right to equal protection.
Although he invokes the Equal Protection and Due Process clauses, Mahoney is effectively challenging the prosecutor’s and two state courts’4 determinations that he was properly barred from the PTI program.5 But such rulings on matters of *372state law are subject to collateral review in federal habeas corpus proceedings only in extraordinary circumstances. Lambert v. Blackwell, 387 F.3d 210, 239 n. 24 (3d Cir.2004).
We perceive no extraordinary circumstances here. Assuming arguendo that a violation of the Equal Protection Clause would warrant such review (and, indeed, that a challenge to a PTI ruling is cognizable in § 2254 in the first place), Mahoney has not set forth a fleshed-out equal protection argument; he merely complains of disparate treatment, which is insufficient. He does not allege or even imply that he has been discriminated against on the basis of a suspect classification such as race or gender; nor has he shown that there was no rational basis for the disparate treatment he alleges. See United States v. Armstrong, 517 U.S. 456, 465-468, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (setting forth standard for selective prosecution claims); Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42-43 (3d Cir.1984) (addressing equal protection challenge to an allegedly disparate sentence); United States v. Roberts, 915 F.2d 889, 891 (4th Cir.1990) (same).
IV
Unpersuaded by any of Mahoney’s remaining arguments, we will AFFIRM the Order of the District Court.
. Because we write primarily for the parties, who are familiar with the background of this case, we will omit details which are not directly relevant to our disposition of the appeal. For background details, see State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006).
. A District Court lacks jurisdiction to entertain a habeas corpus petition if the petitioner was not "in custody” under the conviction he is attacking when he filed his petition. 28 U.S.C. § 2254(a); Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003). Being on probation satisfies this custody requirement. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.2004).
. We agree with the District Court that Maho-ney did not exhaust Claims 2 and 3. Mahoney effectively concedes in his opening brief that he did not exhaust those claims, only to assert in his reply brief that he exhausted Claim 2: he raised it as a federal claim before the Appellate Division and again in his Cross Petition for Certification to the New Jersey Supreme Court. However, the passages in the Appendix cited by Mahoney with regard to his Cross Petition plainly concern Claim 1, not Claim 2. See app. 147-150. Either way, the petition remains mixed.
. The Appellate Division provided an exhaustive analysis of the issue in upholding the decision to exclude Mahoney from the program. See State v. Mahoney, 376 N.J.Super. 63, 868 A.2d 1171, 1188-92 (N.J.Super.A.D.2005), affirmed in part and reversed in part on other grounds, State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006).
.To support his contention that the Appellate Division has been inconsistent in applying the "public trust” exception to the PTI program, Mahoney relies on State v. Mason, 355 N.J.Super. 296, 810 A.2d 88 (N.J.Super.A.D.2002). That decision, however, concerns the definition of "public servant” in the context of the crime of "official misconduct,” N.J.S.A. 2C:30-2, and makes no mention of the "public trust” exception to the PTI program. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477702/ | OPINION OF THE COURT
DAVIS, District Judge.
Appellant Rodney Boomer pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute in excess of five grams of cocaine base, heroin, marijuana, and cocaine, in violation of 21 U.S.C. § 846. He was sentenced to a 211-month term of incarceration, followed by a five-year term of supervised release, and a special assessment of $100.00. Boomer filed a timely notice of appeal.
Defense counsel has filed a motion to withdraw as counsel and has submitted a supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Boomer submitted a pro se informal brief in response, as well as a motion to appoint new counsel.1 The United States has filed a brief in response to Boomer’s motion and in support of defense counsel’s motion. Boomer seeks to vacate his guilty plea, claiming that it was not knowing, voluntary, and intelligent. We will affirm the judgment of conviction and sentence imposed, and we will grant counsel’s motion to withdraw and deny Boomer’s motion to appoint new counsel.
I.
Because we write exclusively for the parties, we recount only the facts necessary to our decision. On May 25, 2005, a confidential informant, at the direction of state police officers, made a controlled purchase of cocaine from Boomer at a vacant store in Monroe County, Pennsylvania. On July 23, 2005, another confidential informant reported to the police that Boomer was selling drugs out of a clothing store in Monroe County. On July 27, 2005, this informant, at the direction of the police, made a controlled purchase of suspected cocaine from Boomer at the clothing store. The police then entered the store to arrest Boomer. Shortly thereafter, Boomer’s wife, Cathy Boomer, arrived at the scene, and during an interview with the police, she stated that the business was in her name and consented to a search of the store. The Boomers also consented to a search of their bedroom at Rodney Boom*374er’s mother’s residence, which resulted in the seizure of drugs and ammunition. At police headquarters, Boomer was advised of his Miranda rights, which he waived, and he gave a statement in which he admitted to trafficking in illegal drugs.
On February 14, 2006, Boomer was indicted for six counts of drug and firearm offenses. Boomer initially entered a plea of not guilty. Boomer’s trial counsel filed a motion to suppress Boomer’s statement and the evidence seized at the clothing store and his mother’s home. Judge Edwin M. Kosik granted the motion with respect to the evidence seized from the house, but otherwise denied it. Trial counsel filed a motion for reconsideration of the suppression ruling, and Boomer, acting pro se, filed a notice to appeal the District Court’s ruling with this Court. Trial counsel sent a letter to this Court, explaining that Boomer acted without consultation with counsel, and that the appeal was interlocutory in nature, but noting that Boomer reserves the right to appeal the ruling at an appropriate time. This Court dismissed Boomer’s appeal for lack of jurisdiction.
Boomer’s trial counsel filed a motion to withdraw as counsel in the District Court on April 12, 2007, and Boomer was appointed new counsel. At the hearing on that motion, the District Court and Boomer discussed his efforts to appeal the ruling on his motion to suppress, and Judge Kosik explained that entering a conditional plea of guilty was a way to accelerate an appeal of the suppression motion. Thereafter, Boomer sent two letters to his new counsel, in January 2008 and April 2008, expressing his interest in appealing the denial of his motion to suppress. Boomer also sent a similar letter to the District Court, to which the District Court responded.
On July 9, 2008, pursuant to a plea agreement, Boomer pleaded guilty to count one of the indictment: conspiracy to distribute and possess with the intent to distribute in excess of five grams of cocaine base, heroin, marijuana, and cocaine, in violation of 21 U.S.C. § 846. The plea agreement did not contain an appellate-waiver provision. However, it included a provision stating that the agreement was the only agreement entered into, and that Boomer “certifies that [his] plea is knowing and voluntary, and is not the result of threats or promises” apart from those in the plea agreement. Boomer also signed a “Statement of Defendant” which did not include an appellate waiver provision, but did contain a clause in which Boomer acknowledged that he understood his trial rights and that he was giving up these rights by pleading guilty. The District Court conducted a plea hearing consistent with Federal Rule of Criminal Procedure 11. During the plea colloquy, upon questioning by Judge Kosik, Boomer stated that he understood the terms of the plea agreement and that he was giving up his trial rights. Waiver of appellate rights was not discussed at the plea hearing. Boomer did not file a motion to withdraw his plea with the District Court. He now argues that his plea was not voluntary, knowing, and intelligent because he was not aware, at the time of entering his plea, that he was waiving his right to appeal the District Court’s denial of his motion to suppress.
II.
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). This Court exercises plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346,102 L.Ed.2d 300 (1988).
*375in.
Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).... ” When counsel submits an An-ders brief, our inquiry is twofold. First, we must consider “whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements.” United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (quoting United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001)). Counsel must “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and “explain why the issues are frivolous.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). “Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in An-ders.” Id. Second, this Court must conduct an independent review of the record and determine whether there are any non-frivolous issues for appeal. Coleman, 575 F.3d at 319. If counsel’s Anders brief is adequate, we confine our review to the issues presented in counsel’s brief and any pro se brief submitted by the defendant. See Yoida, 241 F.3d at 301. However, even if counsel’s brief is inadequate, we may still dismiss the appeal if it presents only patently frivolous issues. See Marvin, 211 F.3d at 781.
A.
We find counsel’s brief adequate. When a defendant pleads guilty, three potential issues remain available on appeal: (1) the jurisdiction of the district court, (2) the validity or voluntariness of the guilty plea, and (3) the legality of the sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Counsel identifies each of these grounds for relief, and after conducting a thorough review of the record, finds no issues of arguable merit for appeal. Counsel predicts that Boomer will appeal the reasonableness of his sentence, and he refers to the record to support his finding that this issue is frivolous. Although trial counsel did not specifically address the argument Boomer presents in his pro se brief, trial counsel does state that, after reviewing Boomer’s correspondence and brief, “the heart of his appeal” is the adverse ruling on his motion to suppress. Counsel’s Br. 2. Moreover, counsel demonstrates that he reviewed the record and the plea colloquy and finds that any challenge to the validity or voluntariness of the plea would be frivolous. Accordingly, this Court is satisfied that counsel conducted a “conscientious examination” of the record and that his brief is adequate.
B.
Because we find that the Anders brief is adequate on its face, our independent review is guided by the portions of the record identified in the brief and any issues raised by Boomer in his pro se brief. See Yoida, 241 F.3d at 301. The Anders brief identifies three potential grounds for appeal as discussed above, and Boomer’s pro se brief presents only one issue for appeal, the voluntariness of his guilty plea. After reviewing these portions of the record, we find that there are no non-frivolous issues for appeal.
Examining first the jurisdiction of the District Court, federal district courts have jurisdiction over all offenses against the United States under 18 U.S.C. § 3231. Boomer was charged with six federal offenses in his indictment, and he pleaded guilty to 21 U.S.C. § 846. Jurisdiction *376was proper and there are no appealable issues to consider.
We turn next to Boomer’s challenge to the voluntariness of his plea. A defendant may enter into either an unconditional or conditional guilty plea. “[A] criminal defendant’s unconditional, knowing and voluntary plea of guilty waives all non-jurisdictional issues.” Washington v. Sobina, 475 F.3d 162, 165 (3d Cir.2007); see also United States v. Schweitzer, 454 F.3d 197, 205 (3d Cir.2006) (recognizing that an unconditional guilty plea “effect[s] an implicit waiver” of non-jurisdictional issues). This rule is consistent with the Supreme Court’s holding in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that when a criminal defendant has pleaded guilty in open court, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to entry of the guilty plea.” 411 U.S. at 267, 93 S.Ct. 1602. To preserve the right to appeal a ruling on a pretrial motion, the defendant must enter into a conditional plea with the “consent of the court and the government” that “reserv[es] in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2). In his brief, Boomer acknowledges that he did not enter into a conditional plea and therefore is prohibited from challenging the District Court’s adverse ruling on his motion to suppress claim. Boomer instead contests that his unconditional guilty plea was not knowing and voluntary because he did not know, at the time of entering the plea, that he was waiving this appellate right. We find Boomer’s challenge to be frivolous.
Whether unconditional or conditional, a guilty plea is valid if entered into “knowingly], voluntarily] and intelligently].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.2008). The constitutional requirement that a guilty plea be knowing and voluntary is “embodied in Federal Rule of Criminal Procedure 11.” Schweitzer, 454 F.3d at 202 (citing Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Rule 11(b) requires the district court to “address the defendant personally in open court,” advise the defendant of a series of admonitions related to his or her guilty plea, and ensure that the defendant understands these terms. Fed. R.Crim.P. 11(b); see also Schweitzer, 454 F.3d at 202-03.
To challenge the voluntariness of a guilty plea, an appellant must demonstrate that the requirements of Federal Rule Criminal Procedure 11 and the constitutional requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not satisfied. When an appellant did not seek to withdraw his guilty plea with the district court, he or she must satisfy the plain error standard of review and must show: (1) there was error, which is a deviation from a legal rule; (2) the error was plain or obvious; and (3) the error affected a defendant’s substantial rights. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). If all three conditions are met, this Court will exercise its discretion to correct the error only if “(4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (citing Johnson, 520 U.S. at 467, 117 S.Ct. 1544). This Court may “consult the entire record, and not simply the record of the plea colloquy when considering the effect of the Rule 11 error.” United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (citing Vonn, 535 U.S. at 59, 122 S.Ct. 1043).
*377Because Boomer did not seek to withdraw his plea with the District Court, he must now satisfy the plain error rule to vacate his guilty plea. Examining the first prong, Boomer is unable to demonstrate that any error occurred with regard to the requirements of Rule 11, and therefore his challenge must fail. Boomer entered into a valid plea agreement, which he authorized his counsel to negotiate and which both signed. The plea agreement did not contain an appellate waiver provision. Boomer also signed a “Statement of Defendant,” which included a clause that he understood his trial rights and that he was giving up these rights by entering a plea. The Statement did not contain an appellate waiver provision. At the plea hearing, the Government summarized the relevant points of the plea agreement, and Boomer stated that he and his attorney understood its terms. In addition, the District Court, with the assistance of the Government, discussed with Boomer the nature of the charges against him, the evidence against him, the trial rights he would be waiving by pleading guilty, and the penalties and sentence he was facing. This colloquy was in accordance with Rule 11(b)(1). The District Court did not discuss with Boomer that he was waiving his right to appeal any pretrial rulings against him, however, Rule 11(b)(1) does not require this warning. The district court must only discuss waiver of appellate rights with a defendant if the “terms of any plea-agreement provision waiv[es] the right to appeal or to collaterally attack the sentence.” Fed.R.Crim.P. ll(b)(l)(N); see also Corso, 549 F.3d at 924-25 (finding that district court committed plain error when defendant’s plea agreement contained appellate waiver provision and neither district court nor prosecutor sufficiently explained the waiver provision with defendant). Because Boomer’s plea agreement did not contain an appellate waiver provision, the warning outlined in Rule ll(b)(l)(N) is not applicable.
In his brief, Boomer acknowledges that the language of Rule 11(b) does not specifically require this warning, but he contends that given the circumstances of his case, the District Court should have had a duty to inform him that he was waiving his right to appeal the adverse ruling on his motion to suppress. Boomer argues that he had a reasonable belief that he reserved this right to appeal based on representations made by the District Court, the Government, and his counsel. For example, Boomer’s first trial counsel noted that he reserved this right to appeal in her letter to this Court, the District Court expressed to Boomer at the motion to withdraw hearing that by entering a conditional plea he would accelerate review of the suppression ruling, his second trial counsel told him that he would appeal the ruling, and the Government did not include a waiver provision in the Statement of Defendant even though they knew he wanted to appeal. Boomer also contends that his own actions demonstrated his intent to appeal the denial of his pretrial motion through his effort to file an interlocutory appeal and the letters he sent to counsel and the District Court. In light of these circumstances, he argues, the District Court should have informed him that he was waiving his right to appeal.
The representations and omissions made by the District Court, the Government, and trial counsel could have conveyed to Boomer a belief that he maintained this right to appeal; however, this Court finds that Boomer cannot meet the heavy burden of showing plain error in light of the clear language of Rule 11. Even though the District Court was aware of his intent to file an appeal, it was not obligated under the Rule to inform him that he waived such right, though it may have been beneficial to do so given the court’s prior statements. Moreover, if the Government’s plea agreement contained an appellate *378waiver provision, as many plea agreements in districts in this Circuit do, Boomer’s mistaken belief regarding his appellate rights would have been easily dispelled. Because Boomer failed to satisfy the first prong of the plain error rule, this Court does not consider the other three elements of the rule, and finds no appealable issue of merit as to the validity or voluntariness of Boomer’s plea on direct appeal.2
Examining next the legality of Boomer’s sentence, this Court reviews a district court’s sentence for abuse of discretion by examining its procedural and substantive reasonableness. See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Procedurally, a district court must (1) calculate a defendant’s sentence under the Guidelines, (2) formally rule on any departure motions and state on the record whether it is granting a departure, and (3) exercise its discretion by considering the relevant § 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If a district court’s procedure is reasonable, we then consider its substantive reasonableness based on the totality of the circumstances. See Tomko, 562 F.3d at 567 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586).
In his Anders brief, trial counsel finds that Boomer’s sentence was reasonable, and Boomer does not challenge his sentence in his pro se brief. We agree and find that the District Court did not abuse its discretion in imposing the sentence. The District Court correctly calculated Boomer’s Guideline sentence to be a range of 262 months to 327 months. During the sentencing hearing, the District Court formally ruled on defense counsel’s departure motions. Defense counsel requested that Boomer not be classified as a career offender under Guideline § 4B1.1, which the District Court denied on the record after considering Boomer’s criminal history and his mental state. Defense counsel also moved for a downward departure for acceptance of responsibility under Guideline § 3E1.1, which the District Court granted after careful consideration of Boomer’s disruptive conduct at correctional institutions and his cooperative attitude following his arrest in this case. The District Court recalculated Boomer’s Guidelines sentence in light of the acceptance of responsibility departure and reduced it to 188 to 235 months. The District Court then considered the relevant § 3553(a) factors, including Boomer’s history and characteristics and the need for the sentence imposed. The District Court sentenced Boomer to 211 months of imprisonment, followed by a five-year term of supervised release, and a special assessment of $100.00. The sentence imposed by the District Court was both procedurally and substantively reasonable, and therefore this Court finds no non-frivolous issues concerning the legality of Boomer’s sentence.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment, and in a separate order, grant counsel’s motion to withdraw.
. Boomer also filed a motion to appoint new counsel prior to defense counsel's Anders motion.
. We note that much of Boomer’s challenge is directed to claims of ineffective assistance of counsel, which may be properly raised on a collateral attack where the record is sufficient to review the issue. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477704/ | OPINION
PER CURIAM.
Petitioner Zhen Rui Chen is a native and citizen of the People’s Republic of China who petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the following reasons, we will deny Chen’s petition for review.
I.
Chen entered the United States on September 2001. In August 2002, he filed an application for asylum and related relief asserting that he had been persecuted under China’s family planning policies. In the affidavit accompanying his application, Chen claimed that his wife had been subjected to a forced abortion on March 8, 2001, and that he had been forcibly sterilized on March 15, 2001. On October 3, 2002, the Department of Homeland Security issued a notice to appear charging Chen with removability under 8 U.S.C. § 1227.
At his removal proceedings, Chen testified consistently with his asylum affidavit. He asserted his wife became pregnant with their third child in late 2000. But because she missed her routine IUD/pregnancy checkup in December 2000, family planning officials came to Chen’s house looking for his wife — who was hiding at *380her sister’s home. When Chen’s wife returned home on March 8, 2001, she was taken by the officials to the LangQi health clinic where she was subjected to an abortion. Thereafter, on March 15, 2001, six officials took Chen from his home to the health clinic. He testified that he was restrained, injected with anaesthesia, and sterilized.
Chen corroborated his claim with abortion and sterilization certificates from the LangQi health clinic as well as testimony from Dr. Robert Chan Luangkhot, a doctor who examined Chen in the United States on August 10, 2002 and again in 2004. Dr. Luangkhot testified that Chen had undergone a vasectomy that — based on faintness of the scar — had occurred around one year before the August 2002 examination. The IJ granted Chen’s claim for asylum but stated that she would reopen the case if the documentation regarding the sterilization and abortion was determined to be fraudulent.
The government’s subsequent investigation showed that the LangQi health clinic documents were fraudulent and upon the government’s motion the IJ reopened the case on March 15, 2005. Chen did not dispute that the documents were fraudulent but attempted to rehabilitate his claim by submitting new documents from the health clinic representing that he had been sterilized on March 15, 1999 and that his wife had undergone an abortion on March 8, 1999. Chen also submitted a letter from his wife — who remains in China — stating that, because she lost the original abortion and sterilization certificates, she obtained those initially submitted from a doctor for five-hundred Chinese dollars. She asserted that she did not know the documents were fraudulent.
On August 16, 2007, the IJ denied Chen’s requests for asylum, withholding of removal, and CAT relief but granted his application for voluntary departure. The IJ concluded that Chen’s “testimony regarding the dates of his forced sterilization and his wife’s forced abortion go to the very heart of his claim.” She noted that the year that these events occurred was disputed until it was discovered that the original documents were fraudulent. The IJ then reasoned that if the 2001 date were correct, then “[Chen’s] attempt to explain the forged documents is false and his credibility has been undermined not only by submitting forged documents, but also by attempting to explain why they are fraudulent.” If, however, the explanation of the forged documents was true and the sterilization and abortion occurred in 1999, then “[Chen] repeatedly stated the incorrect year in which he was sterilized, and the Court finds it unlikely that a man who was forcibly sterilized in the manner described ... would not remember the year in which that traumatic event occurred.”
On August 29, 2008, the BIA affirmed the IJ’s decision. It concluded that the adverse credibility finding was not clearly erroneous, agreeing that the Chen lacked credibility because he had submitted fraudulent documents and noting that the rehabilitative evidence conflicted with his testimony as to the date of the acts of persecution. See Matter of O-D- 21 I. & N. Dec. 1079 (BIA 1998). The BIA also determined that because Chen failed to meet the burden necessary to establish eligibility for asylum, he failed to satisfy the higher standard required for withholding of removal, and had not presented any credible evidence establishing that someone in his situation would be tortured upon his return to China. Finally, the BIA permitted Chen to voluntarily depart from the United States. See 8 U.S.C. § 1229c(b).
Through counsel, Chen now petitions for review of the BIA’s final order of removal.
*381ii.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). In this case, we review the decisions of the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). The decisions are reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted). Further, an adverse credibility finding should be “based upon inconsistent statements, contradictory evidences, and inherently improbable testimony” that go to the heart of the asylum claim.1 Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006).
Substantial evidence supports the adverse credibility determination. See Kaita, 522 F.3d at 296. Chen does not dispute that he submitted fraudulent abortion and sterilization certificates in support of his claims. He also failed to authenticate the second set of certificates. The IJ and BIA nevertheless considered the new records and appropriately concluded that Chen’s rehabilitative evidence only raised more questions as to his credibility, and that the questionable evidence goes to the heart of his claim for asylum. Additionally, because the IJ could have rested the adverse credibility finding solely on the submission of the fraudulent documents, we have no need to consider Chen’s arguments relating to the admission of his rehabilitative documents and the explanation for the inconsistencies between the documents. In sum, the evidence does not compel us to overturn the decision to deny the petitioner’s claims.
For the foregoing reasons, we deny Chen’s petition for review.
. Because Chen applied for relief before May 11, 2005, the REAL ID Act’s standard governing review of adverse credibility determina-lions is not applicable to this case. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477706/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Gertrude Barnes filed an adversary proceeding in the United States Bankruptcy Court for the Eastern District of Pennsylvania. After a trial, the Bankruptcy Court entered judgment in favor of the Defendants. It subsequently denied Barnes’ Motion for Reconsideration. An appeal was made to the District Court, which issued an order affirming the Bankruptcy Court’s decision. Barnes now appeals the District Court’s judgment and we affirm substantially for the reasons set forth in the Bankruptcy Court and District Court’s opinions.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. This case stems from a sequence of events that began when Barnes contacted Margo Robinson regarding how to obtain a loan to finance renovations and repairs to her home. Barnes had heard Robinson speaking on the radio regarding *383how she assists homeowners in obtaining such loans.
Robinson assisted Barnes in obtaining a loan from Laguna Capital Mortgage Corporation (“Laguna”) in the amount of $47,700 with an annual percentage rate of 11.971%. At the loan settlement, Barnes expressed surprise at the loan’s size, but Robinson- — whom she considered a friend at the time — encouraged her not to worry about this and to sign the papers. Barnes signed the three loan documents. One of these documents, the Settlement Statement, listed $31,797.54 in cash paid to the borrower. A check in this amount was made payable to Barnes, which she then endorsed over to Robinson, who deposited it into her own bank account. No evidence indicated Laguna knew or should have known that Barnes endorsed the check to Robinson.
Robinson testified at trial that Barnes asked for help in finding and hiring contractors to work at her home. Barnes testified to the contrary, claiming that Robinson forced contractors on her. Three contractors worked at Barnes’ home. The second contractor, according to Barnes, tore the house up. The third contractor’s work resulted in electrical problems and he ultimately never completed the repairs and renovations for which Robinson had paid him. Barnes ultimately moved out of her home because of the state of disrepair in which the contractors left it.
Barnes hired an attorney whom she claimed drafted a letter rescinding the loan, but no evidence was offered at trial establishing this letter was ever sent. In July 2002, the servicing agent for the loan and Defendant Bank of New York, to whom the loan had been assigned, filed a mortgage foreclosure action in state court.
Barnes filed her bankruptcy case on October 15, 2002.2 She commenced an adversary proceeding in the Bankruptcy Court on November 22, 2002. Her complaint alleged claims under the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), and related Pennsylvania laws. The complaint named eight Defendants, but Barnes dismissed her claims with prejudice against all Defendants except Robinson, Laguna, Fairbanks Corporation and Equi-credit Corporation. Barnes subsequently settled with Robinson and obtained an entry of default against Laguna. A second amended complaint named only Laguna and the successor to Fairbanks, Select Portfolio Servicing, Inc. (“SPS”). A Third amended complaint added the Bank of New York Trustee EQCC 2001 F-l Trust, the current holder of the mortgage, as a Defendant. It only included claims under TILA and not any claims under Pennsylvania law. Barnes subsequently agreed to dismiss SPS as a Defendant.
A trial was held in the Bankruptcy Court, at which Barnes, her son who lives with her, and Robinson each testified. The parties submitted briefs after the trial and the Bankruptcy Court entered judgment in favor of the Defendants. The Bankruptcy Court denied Barnes’ Motion for Reconsideration. The District Court affirmed the Bankruptcy Court’s judgment on appeal and Barnes now appeals the District Court’s decision.
II.
On appeal, Barnes first contends that the Bankruptcy Court erred by allowing the Defendants to argue that Barnes failed to prove that she rescinded the loan. Second, in the alternative, Barnes argues that the filing of her bankruptcy case within three years of her contract to refinance *384her home mortgage, in conjunction with the subsequent filing, within sixty days, of a complaint demanding rescission, sufficed to constitute a timely rescission demand. Third, Barnes contends that the Bankruptcy Court erred when it held that the loan settlement proceeds given to Robinson were not an undisclosed finance charge, which would be in violation of the Truth in Lending Act (“TILA”). Fourth, Barnes argues that the Bankruptcy Court erred in finding that the loan she obtained did not fall within the scope of Pennsylvania’s Home Improvement Finance Act (“HIFA”).
Substantially for the reasons set forth in the Bankruptcy Court’s thorough and well-reasoned Memorandums of January 25, 2007 and February 16, 2007, we will affirm the District Court’s order, which affirmed the Bankruptcy Court’s judgment.
We briefly comment on one matter. With regards to the rescission issue, the Bankruptcy Court correctly concluded, and the District Court affirmed this judgment, that Barnes failed to prove that she timely exercised her right to rescind the loan, pursuant to 15 U.S.C. § 1635. Barnes also argued, but only before the District Court, that the filing of her bankruptcy action within three years of the date of her loan, in conjunction with the subsequent filing, within sixty days, of a complaint demanding rescission, sufficed to constitute a notice of rescission. See 11 U.S.C. § 108. This is the second issue Barnes raises before this Court on appeal. As the District Court correctly held, Barnes’ failure to raise this argument before the Bankruptcy Court renders it waived. The District Court, however, also concluded that even if had not been waived, Barnes’ argument was without merit. Relying on the legislative history of 11 U.S.C, § 108 and cases from outside this Circuit, the District Court concluded that § 108 applies “only to trustees or Chapter 11 debtors in possession” and does not apply to a Chapter 13 debtor, such as Barnes. (App.l.) We agree that this argument was waived and therefore the District Court did not need to determine whether § 108 applies to a Chapter 13 debtor seeking to extend the time for statutory notice of her rescission. We note, however, that in In re Connors, 497 F.3d 314, 321 (3d Cir.2007), we did apply § 108(b) to extend a statutory grace period in the context of a petition filed by a Chapter 13 debtor. Accordingly, although we affirm the District Court’s judgment in this matter, we do not endorse its conclusion regarding the application of § 108 to a Chapter 13 debtor.
We have considered the Plaintiffs’ other arguments on appeal and find them to be without merit. For the foregoing reasons, and with the caveat noted regarding the potential application of § 108 to a Chapter 13 debtor, we will affirm the District Court.
. The Bankruptcy Court had jurisdiction under 28 U.S.C. § 1334. The District Court had jurisdiction over the appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The bankruptcy petition was originally filed under Chapter 7 of the Bankruptcy Code. Upon Barnes' motion, the case was converted on January 21, 2003 to one under Chapter 13. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477708/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Leslie E. Woghiren was found deporta-ble by an Immigration Judge (“IJ”), after which he filed an appeal with the Board of Immigration Appeals (“BIA”), which dismissed his appeal. In this petition for review of the BIA’s decision, Woghiren relies upon an argument that he did not present to the BIA. Because Woghiren did not exhaust the claim he raises herein before the BIA, we conclude that we lack jurisdiction over his claim and will dismiss his petition for review.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of the issue raised on appeal. Woghiren is a citizen and native of Nigeria who was admitted to the United States on a travel visa in 1986. Thereafter, he became a conditional resident as a result of having married a United States citizen. He filed a Form 1-751 petition, seeking to remove the conditions of his residency, but in 1991 the Immigration Service denied his petition on account of Woghiren’s failure to prove that the marriage was a bona fide “proper marriage.” 8 U.S.C. § 1186a(d)(l)(A).
Later that year, Woghiren was granted advance parole in order to travel to Nigeria, but upon his return, he was placed in exclusion proceedings for having entered the United States without valid entry documents. This placement was apparently in error, because at the time, Woghiren’s appeal of his 1-751 petition was still pending, and he was thus not excludable. Upon Woghiren’s objection to the IJ on this basis, the exclusion proceedings were terminated. The INS again placed Woghi-*386ren in exclusion proceedings in 1996, but these proceedings were likewise terminated.
In March 1997, the INS charged Woghi-ren with being deportable pursuant to 8 U.S.C. § 1227(a)(l)(D)(i) (providing for the deportability of a conditional permanent resident whose conditional residency has been terminated), but the IJ once again terminated the proceedings because Wogh-iren had filed a second 1-751 application. This application was denied in 2004 for substantially the same reason underlying the denial of Woghiren’s first 1-751 — that is, Woghiren had again failed to prove that his marriage was bona fide. See 8 U.S.C. § 1186a(d)(l)(A).
Following the denial of Woghiren’s second 1-751, the Government sought to re-calendar the deportation proceedings. At a hearing before the IJ, Woghiren, uninformed by counsel or the IJ that he might be able to pursue the remedy of suspension of deportation, conceded that he was deportable. The IJ ordered that Woghiren voluntarily depart the United States by July 2006. Woghiren did not so depart, and instead, in July 2007, filed a motion to reopen the matter, alleging that his prior counsel had been ineffective because he had failed, inter alia, to pursue the remedy of cancellation of removal. The IJ denied the motion, concluding (1) that it was untimely and (2) that cancellation of removal was not called for because Woghiren had not demonstrated the requisite level of hardship to qualify for cancellation of removal.
Woghiren appealed the IJ’s decision to the BIA, contending that during the re-calendared deportation proceedings, the IJ violated his obligation to inform Woghiren of his potential eligibility for cancellation of removal. See 8 C.F.R. § 1240.11(a)(2) (“The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing, in accordance with the provisions of § 1240.8(d).”) Significantly, in his appeal to the BIA, Woghiren made no mention of the separate remedy for which he now contends he was eligible — ie., suspension of deportation. The BIA dismissed the appeal, explaining that although immigration judges have the duty to inform people appearing before them of their potential eligibility for relief, see id., the remedy Woghiren claimed that the IJ should have informed him of — cancellation of removal — was not available in a deportation proceeding such as Woghiren’s. Following the BIA’s dismissal of his appeal, Woghi-ren petitioned this Court for review.
II.
Under the INA, we may review the BIA’s decision in this case only if Woghi-ren “has exhausted all administrative remedies available to ... [him] as of right.” 8 U.S.C. § 1252(d)(1). We have interpreted this statutory provision to require “an alien ‘to raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim,’ ” and have held that this exhaustion requirement “is a jurisdictional rule.” Hoxha v. Holder, 559 F.3d 157, 159 & n. 3 (3d Cir.2009) (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir.2003)) (emphasis added).
The rule is not an onerous one. We have explained that “so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.” Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir.2008) (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006)). In Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004), for example, we concluded that *387where an immigration petitioner failed to argue a straightforward issue in a brief submitted to the BIA, but had put the BIA on notice of the. issue by presenting it in his notice of appeal, the claim was sufficiently exhausted. We explained that “if the issue is not complex, no brief is required as long as the notice of appeal does precisely what it is intended to do — place the BIA on notice of what is at issue.” Id. at 368; see also Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005).
At the same time, although the exhaustion requirement is not to be applied “in a draconian fashion,” Lin, 543 F.3d at 121, an immigration petitioner is at minimum required to “alert the Board to the issue he seeks to raise” before this Court. Abdulrahman, 330 F.3d at 595. Where petitioners have failed to provide the Board with the requisite notice, we have not hesitated to dismiss the unexhausted claims. See id.; cf. Lin, 543 F.3d at 122 (concluding that the petitioner failed to exhaust a claim by putting BIA on notice, but exercising jurisdiction because the Board considered the issue sua sponte). The question is whether the petitioner has “set forth sufficient facts and law to inform the BIA of the basis for the appeal” so as to give the Board the “opportunity to resolve issues raised before it prior to any judicial intervention.” Hoxha, 559 F.3d at 163 (citation omitted).
Having reviewed Woghiren’s notice of appeal and the brief he submitted to the BIA, we conclude that Woghiren failed to give the BIA notice of his claim that the IJ failed to inform him of his potential eligibility for suspension of deportation, and that he therefore failed to exhaust the claim he seeks to argue before us. It is true, as Woghiren argues, that both his appeal to the BIA and his argument reference the same federal regulation — 8 C.F.R. § 1240.11(a)(2), which requires immigration judges to inform persons in immigration proceedings of them potential eligibility for relief.
We agree with the Government, however, that Woghiren’s argument in this appeal, as to how the IJ ran afoul of 8 C.F.R. § 1240.11(a)(2), is sufficiently different from the § 1240.11(a)(2) issue raised before the BIA that Woghiren cannot be said to have “alert[ed] the Board to the issue he [now] seeks to raise.” Abdulrahman, 330 F.3d at 595. In his appeal before the BIA, Woghiren contended that the IJ erred by failing to inform him of his possible eligibility for cancellation of removal, see 8 U.S.C. § 1229b(b), an argument the BIA rejected on the grounds that Woghi-ren was not eligible for cancellation. Now, for the first time, Woghiren contends that the IJ should have informed him of his potential eligibility for a different form of relief, suspension of deportation. See 8 U.S.C. § 1254 (1996). As we have recognized, cancellation of removal and suspension of deportation are distinct avenues of relief, applicable in different settings and with different requirements. See, e.g., Hernandez v. Gonzales, 437 F.3d 341, 345 (3d Cir.2006). Neither the words “suspension of deportation” nor the applicable statutory provision appear in any of the materials Woghiren submitted to the BIA. We agree with the Government that “[without petitioner actually presenting his argument to the Board regarding this entirely different form of relief, the Board can hardly be faulted for not addressing the possible error petitioner now asserts was committed below.” (Gov’t Br. 17.) While the administrative exhaustion requirement is not onerous, we certainly cannot find it satisfied where a petitioner’s submissions to the BIA are entirely silent as to the precise issue raised before us. See Abdulrahman, 330 F.3d at 595. Because Woghiren did not exhaust the claim he seeks to raise herein, we lack jurisdiction to further entertain his petition for review. See Hoxha, 559 F.3d at 159 n. 3.
*388III.
For the foregoing reasons, we will dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477712/ | *392OPINION
PER CURIAM.
Kathleen Hall-Ditchfield, proceeding pro se, appeals the District Court’s order dismissing her complaint in part, as well as the court’s later order granting summary judgment in favor of the Government. For the reasons that follow, we will affirm.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. In May 2007, Hall-Ditchfield filed a complaint in the District Court, challenging the Internal Revenue Service’s (“IRS”) rejection of her tax refund claims for tax years 1999, 2000, and 2001. The Government moved to dismiss the complaint, arguing that the court lacked subject matter jurisdiction because Hall-Ditchfield had failed to file a timely administrative claim for a tax refund with the IRS, as required by 26 U.S.C. § 6511. In an order entered on June 11, 2008, the court granted the motion in part, dismissing Hall-Ditchfield’s claims relating to tax years 1999 and 2000. The court denied the Government’s motion as to her claim for tax year 2001, concluding that there was insufficient information to determine whether she had timely submitted an administrative claim for that tax year.
In August 2008, the court held a conference, at which the parties presented evidence regarding the timeliness of Hall-Ditchfield’s administrative claim for tax year 2001. In May 2009, both parties moved for summary judgment. On June 9, 2009, the court denied Hall-Ditchfield’s motion and granted the Government’s motion. In doing so, the court held that it lacked jurisdiction over her claim for tax year 2001, for her administrative claim for that tax year was untimely. The court further held that § 6511’s limitations period was not subject to equitable tolling. Hall-Ditchfield now appeals the court’s June 11, 2008 and June 9, 2009 orders.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to grant a motion to dismiss. Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 386 (3d Cir.2005), as well as its decision to grant summary judgment. Atkinson v. Lafayette Coll., 460 F.3d 447, 451 (3d Cir.2006).
For substantially the reasons given by the District Court, we agree with its disposition of Hall-Ditchfield’s claims. Although she argues that her claims should be equitably tolled, that argument is foreclosed by United States v. Brockamp, 519 U.S. 347, 354, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997), which held that § 6511’s limitations period is not subject to equitable tolling.1 Despite her contention to the contrary, that doctrine’s inapplicability here does not violate her First Amendment rights. Accordingly, we will affirm the District Court’s June 11, 2008, 2008 WL 2381533, and June 9, 2009, 2009 WL 1606875, orders.
. Because the equitable tolling doctrine is inapplicable here, we need not determine whether Hall-Ditchfield would be entitled to equitable tolling were it available. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477716/ | OPINION
PER CURIAM.
Margarita Moshkovich1 petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on June 1, 2009. For the reasons that follow, we will deny 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 our analysis. Moshko-vich is a native and citizen of Moldova. She entered the United States illegally in 1994 and was placed in removal proceedings. Moshkovich then relocated from New Jersey to California. In March 1995, Moshkovich provided the Immigration Court with notice of her change of address *398and requested a change of venue to California. A.R. 95. On April 17, 1995, the Immigration Judge (“IJ”) sent a letter to Moshkovich at the California address advising that the change of venue request was defective and that a failure to appear at a scheduled hearing could result in issuance of an in absentia deportation order. A.R. 89.
On April 27, 1995, Moshkovich responded to the IJ’s letter, again asking for a change of venue. A.R. 105. The IJ responded by sending an order, via certified mail at the California address, informing Moshkovich that the change of venue motion was denied because it was defective. A.R. 83. The order also informed Mosh-kovich that her hearing was scheduled for June 20, 1995, in Newark, New Jersey, and that a deportation order could issue at that time. Id. Moshkovich signed the certified mail return receipt. A.R. 91. The IJ also sent Moshkovich a notice of hearing, stating that the master hearing would take place on June 20, 1995, in Newark, New Jersey. A.R. 94.
Shortly before the scheduled hearing, on June 9,1995, Moshkovich submitted another motion to change venue, this time through counsel. A.R. 85. The counseled venue motion was also defective. The IJ denied it and sent notice of the denial both to Moshkovich and her counsel. A.R. 84. The IJ’s order again stated that the hearing was scheduled for June 20, 1995. Id.
Moshkovich failed to appear at the June 20, 1995, hearing. The IJ issued an in absentia deportation order. A.R. 78-80. The order reflects that it was sent to Moshkovich’s address in California2 and to her counsel. A.R. 78.
Moshkovich married a legal permanent resident in 2000 and gave birth to a United States citizen child in 2001. In March 2001, her husband filed an 1-130 visa petition on Moshkovich’s behalf. The petition was approved in January 2008. A.R. 63. Shortly thereafter, Moshkovich and her husband attended an interview with an immigration officer. When the officer discovered the 1995 in absentia removal order against her, Moshkovich was arrested and placed under an order of supervision.
In February 2008, Moshkovich filed a counseled motion to reopen with the IJ to seek adjustment of status based upon the approved 1-130 visa petition. In her motion, Moshkovich argued that her prior counsel had been ineffective.
The IJ concluded that Moshkovich’s motion to reopen was incomplete because she failed to provide an affidavit in support and she did not specify a way in which her prior counsel had been ineffective. Although Moshkovich argued that prior counsel failed to provide the immigration court with the proper change of address form, the IJ noted that Moshkovich’s address had been changed with the Immigration Court. The IJ also found that Mosh-kovich did not explain her delay of more than a decade in pursuing reopening or her failure to appear in person at the June 1995 hearing. Finally, the IJ concluded that the record lacked sufficient evidence to determine whether Moshkovich was pri-ma facie eligible for adjustment of status. The IJ therefore denied the motion to reopen.
On June 1, 2009, the BIA affirmed the IJ’s decision and dismissed Moshkovich’s appeal. Among other things, the BIA concluded that, to the extent Moshkovich claimed her failure to appear was due to exceptional circumstances (ie., the ineffective assistance of her prior counsel), her *399motion to reopen was untimely, see Matter of A-A- 22 I. & N. Dec. 140 (BIA 1998), and her lack of diligence (demonstrated by more than ten years’ delay in bringing her motion) did not warrant equitable tolling. The BIA concluded that Moshkovieh provided no evidence of ineffective assistance of counsel because her address had been properly changed with the immigration comb, and Moshkovieh had been sent proper notice of the June 20,1995, immigration hearing by certified mail to her California address. The BIA agreed with the IJ’s conclusion that discretionary sua sponte reopening was not warranted. See 8 C.F.R. § 1003.2(a).
Moshkovieh filed a timely pro se petition for review. She has since retained counsel.
II. Analysis
To seek rescission of an in absentia removal order, an individual may file a motion to reopen. See INA § 240(b)(5)(C) [8 U.S.C. § 1229a(b)(5)(C) ]. The motion must be filed within 180 days of the removal order and must demonstrate “exceptional circumstances,” unless, inter alia, it is based upon lack of notice. See INA §§ 240(b)(5)(C)(i), (ii) [8 U.S.C. §§ 1229a(b)(5)(C)(i), (ii) ]. This Court reviews the BIA’s findings of fact for substantial evidence and the decision to reject the motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference,” see Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003), and will be upheld unless it was “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). As the Supreme Court has stated, the regulations “plainly disfavor” motions to reopen. INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Moshkovieh contends that the ineffectiveness of her prior counsel was an “exceptional circumstance” warranting reopening. See INA § 240(e)(1) [8 U.S.C. § 1229a(e)(l) ]. However, her motion to reopen on these grounds should have been filed within 180 days of the IJ’s June 23, 1995, removal order. See INA § 240(b)(5)(C)© [8 U.S.C. § 1229a(b)(5)(C)(i) ]. Substantial evidence supports the BIA’s conclusion that Mosh-kovich’s February 2008 motion to reopen was untimely. See A.R. 04 (BIA Decision at 2).
Under certain circumstances, ineffective assistance of counsel may provide a basis for equitably tolling the 180-day limitation period for filing a motion to reopen. However, even without regard to whether her prior counsel was ineffective,3 the fact remains that Moshkovieh hired prior counsel to change the venue of her immigration proceedings in 1995 and did not follow up with prior counsel or the Immigration Court for approximately thirteen years. It is simply unreasonable that she allowed so many years to pass without making any effort to determine the status of her immigration proceedings. The BIA did not err in concluding that Moshkovich’s delay of more than a decade before filing her motion to reopen reflects that she did not act diligently and is therefore not entitled to equitable tolling of the limitations period.4 *400See A.R. 04 (BIA Decision at 2); see also Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d Cir.2005) (for equitable tolling, petitioner must demonstrate diligence in pursuing the ineffectiveness of counsel claim).
The 180-day limitation period does not apply where a motion to reopen is based upon a lack of notice of the scheduled hearing.5 See INA § 240(b)(5)(C)(ii) [8 U.S.C. §§ 1229a(b)(5)(C)(ii) ] (a motion to reopen based on lack of notice of a proceeding may be filed “at any time”). To establish a lack of notice, Moshkovich would have to overcome a “strong presumption” that she was served effectively. See Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 278 (3d Cir.2007). The record reflects that the IJ sent notice to Moshkovich’s correct California address via certified mail on several separate occasions. See A.R. 83, 84, 94. Particularly in light of the signed certified mail receipt, see A.R. 91, substantial evidence supports the conclusion that Moshkovich failed to overcome the strong presumption of proper service.6
Finally, in her opening brief, Moshkovich argues at length that her family will experience hardship if she is deported. While we are sympathetic to the difficulties that deportation may cause to an individual’s family members, this does not provide a basis for concluding that the BIA abused its discretion in denying the motion to reopen.7
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. Petitioner employs her married surname, Moshkovich. For purposes of this opinion, we will do the same.
. In June 1995, Moshkovich informed the Immigration Court that she had moved to a new California address. A.R. 88. The IJ's deportation order listed both of Moshkovich's California addresses as well as her counsel's address. A.R. 78.
. The BIA concluded that Moshkovieh failed to make a valid claim of ineffective assistance of counsel. See A.R. 04 (BIA Decision at 2); see also Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (setting forth requirements); Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001) ("We generally agree that the BIA’s [Lozada decision] is not an abuse of the Board's wide-ranging discretion.”). Indeed, Moshkovieh conceded before the BIA that she did not comply with the requirements for raising an ineffective assistance claim. See A.R. 08 (brief to BIA).
. Moshkovieh argues that her efforts at contacting the Immigration Court in 1995 reflect *400her "ongoing good faith" and lack of sophistication, see Petitioner's Reply Brief at 5-6, and the BIA's failure to more favorably consider these aspects of her claim resulted in an abuse of discretion. We disagree. We see no record evidence of "ongoing good faith” and, even accepting her alleged lack of sophistication, the record reflects that Moshkovich took absolutely no action to learn of the status of her immigration proceedings between 1995 and 2008.
. In her Reply Brief, Moshkovich argues a lack of notice of the June 1995 order denying her venue motion. See Petitioner's Reply Brief at 8. This does not address the issue of notice of the proceeding at which she failed to appear. See INA § 240(b)(5)(C)(ii) [8 U.S.C. §§ 1229a(b)(5)(C)(ii) ].
. In her Reply Brief, Moshkovich states that "it is undisputed that the Immigration Court ... mailed the [June 13, 1995 order denying the venue change motion] to Petitioner's old address.” Petitioner’s Reply Brief at 7; A.R. 84. Even if this is accurate, this does not establish an abuse of discretion because it does not address the fact that the in absentia removal order was sent to Moshkovich’s old address, new address, and her counsel’s address, see A.R. 78, and Moshkovich nevertheless failed to pursue reopening until more than a decade later.
.We note that Moshkovich has appended various documents to her opening brief that do not appear in the administrative record. As the Government correctly argues, we may not consider the new submissions. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)]; Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”). Accordingly, we have reached our decision by limiting our review to the parties' briefs and the certified administrative record. Moreover, to the extent Moshkovich has offered these documents in an effort to establish the equities in her favor and thereby dispute the BIA's decision to deny discretionary sua sponte reopening of her case (an issue that is not clear from her briefs), we lack jurisdiction to review such a claim. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) ("[T]his court is without jurisdiction to review a decision declining to exercise [the BIA's sua sponte discretion] to reopen or reconsider the case."). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477718/ | OPINION
PER CURIAM.
The petitioners — a mother and her two sons — seek review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying their application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the following reasons, we will deny the petition for review.
I.
Rina Dervishi and her sons, Saimir and Lulezim, are Albanian citizens who entered the United States in June 2005. They were immediately served with notices to appear that charged them with being removable under 8 U.S.C. § 1182(a)(6)(A)(i). The petitioners thereafter filed an application for asylum and related relief, claiming that they had been persecuted in Albania due to Ymerli Dervishi’s (Rina Dervishi’s husband) activities on behalf of the Albanian Democratic Party.
Mrs. Dervishi’s affidavit supporting her asylum application stated that her husband had been involved with the Democratic Party since 1991, when he led a demon-*402station against the Communist government. In early 2005, Mr. Dervishi organized two meetings for neighborhood party members and Mrs. Dervishi asserted that, as a result of these activities, her family was targeted by the Socialist Party. In February and March 2005, she received four anonymous letters threatening to kidnap her sons if her husband did not cease his political activities. Then, at around 10:00 p.m. on March 13, 2005, her eighteen-year-old son, Saimir, was attacked on his way home from work by an unknown man and a neighbor, Bardhyl Behary, who was a policeman and Socialist. The attackers told Saimir that the beating was a “present for his father.” One of the men held Saimir while the other punched him several times in his stomach until he passed out. When Mrs. Dervishi found out what happened, she called her father who lived a few hours away in Lehse (Mrs. Dervishi and her family lived in Fier). After her father arrived, he took Mrs. Dervishi and her sons to his home. The next day they took Saimir to the hospital, where he was examined and had x-rays taken.
Mrs. Dervishi’s affidavit stated that she twice returned to Fier after the attack on Saimir. On her second trip, in April 2005, a few men — including Bardhyl Behai'y— got out of a car and approached her as she was shopping. Behary grabbed her arm and repeated the threat that if her husband did not dissociate from the Democratic Party then her sons would be kidnapped. The men then got into the car and left. She had not told her husband about the threatening letters until Saimir was attacked, and after the April incident, her husband agreed that she and them sons should leave Albania. Mrs. Dervishi has not seen or spoken to her husband since she left Europe in June 2005.
Mrs. Dervishi and her sons testified at the removal proceedings. The IJ, however, found their testimony to be fatally marred by inconsistencies. Each of petitioners gave slightly different accounts of the chronology of Saimir’s attack, Saimir’s level of consciousness after his attack, and when Mrs. Dervishi’s father arrived at the Dervishi home. The IJ also questioned Saimir extensively regarding exactly how many times he was punched in the stomach (he stated in his application statement that he had been punched several times but then testified that he was punched once and slapped in the face once) and the details of his hospital visit. Another inconsistency that the IJ focused on was Ms. Dervishi’s account of the April 2005 incident, as she testified that she kicked Behary whereas her affidavit made no mention of this. Further, Mrs. Dervishi’s father submitted a letter stating that the men who approached Mrs. Dervishi tried to force her into a car whereas Mrs. Der-vishi never testified to such an occurrence. The petitioners’ accounts of their movements after Saimir’s attack also differed. First, Mrs. Dervishi testified that, after Saimir’s beating, she went back to Fier once whereas her affidavit stated that she returned twice. Then, contradicting his mother’s story, Saimir testified that after the attack they spent most of their time at their home in Fier. Lulezim’s testimony was fairly unhelpful because by the time he was questioned about the period of time after the attack, he had started crying and answered most inquiries by stating that he did not remember what had happened. Finally, the IJ reprimanded Ms. Dervishi twice for coaching her sons as they were testifying.
The IJ concluded that the Dervishis were not credible based on the inconsistencies described above, as well as their failure to corroborate their claim.1 Al-*403tentatively, the IJ held that even if the petitioners were credible, the incidents described did not rise to the level of persecution. Because the Democratic Party is now in power in Albania, the IJ determined that the petitioners had not established a well-founded fear of future persecution.
The BIA affirmed the IJ’s decision, concluding that the adverse credibility determination was not “clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3). The BIA listed many of the inconsistencies cited by the IJ, and determined that they, as well as the admonishments to stop coaching, constituted “significant evidence of a lack of credibility.” Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). The BIA also noted that the petitioners did not provide evidence that Ms. Dervishi’s husband was a member of the Democratic Party or that supported that they had a well-founded fear of future persecution.
Through counsel, Mrs. Dervishi and her sons now petition for review of the BIA’s final order of removal.
II
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). The BIA’s decision is reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted). Here, the BIA’s conclusions concerning the IJ’s adverse credibility finding and the petitioners’ failure to meet their burden of proof regarding past persecution or a well-founded fear of future persecution are supported by substantial evidence. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). Under the REAL ID Act of 2005, credibility determinations may be made “without regard to whether any inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). However, the IJ must “[c]onsider[ ] the totality of the circumstances, and all relevant factors.” Id.; see Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008) (“[A]n IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.”) (emphasis in original).
The BIA determined that many of the inconsistencies that the IJ identified, as well the lack of corroboration and Mrs. Dervishi’s demeanor, constituted “significant evidence of a lack of credibility.” Some of the inconsistencies — such as the exact number of times that Saimir was punched in the stomach or whether Ms. Dervishi kicked her attacker — may be trivial. However, when the inconsistencies between the petitioners’ testimony are considered along with the witness coaching and the lack of corroboration, they create strong doubts about the veracity of the petitioners’ claim and constitute substantial evidence to support the adverse credibility finding. See Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.2007) (explaining that while some inconsistencies, “in isolation, may seem like small potatoes ... their cumulative effect is great”); Dia v. Ashcroft, 353 F.3d 228, 252 n. 23 (3d Cir.2003) (en banc) (stating that typically, the IJ’s reliance on “her personal observations of [the applicant’s demeanor or any other observations [is something] to which we must accord an even greater degree of deference”). In short, we see nothing in *404the record that would compel a conclusion that the petitioners were credible.
Because we have accepted the adverse credibility determination, the petitioners’ case collapses, as without their credible testimony, the record does not demonstrate that they were persecuted. Further, because the petitioners were unable to establish eligibility for asylum, their claim for withholding of removal also fails. See Mudric v. Att’y Gen., 469 F.3d 94, 102 n. 8 (3d Cir.2006).
In sum, the evidence does not compel us to overturn the BIA’s decision to deny the petitioners’ claims, and for the foregoing reasons, we deny the petition for review.
. In support of their assertion that Mr. Dervi-shi was a member of the Democratic Party, *403the petitioners submitted two letters from neighbors, stating that they attended February and March 2005 meetings that Mr. Dervi-shi had organized. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477720/ | OPINION
PER CURIAM
Petitioner Cal Jin Hua, a native and citizen of China, seeks review of a final order of removal. Hua claims that she suffered past persecution by government officials through their enforcement of Chi*405na’s coercive family planning policy. She fears future persecution if removed to China, based on her intention to have more children. Because the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, we will deny the petition for review.
I.
Hua entered the United States at an unknown place on an unknown date, without having been admitted or paroled after inspection by DHS. She applied for asylum in February 2007, after a Notice to Appear had issued. The IJ denied Hua’s request for asylum as untimely, but allowed her requests for withholding of removal and Convention Against Torture (“CAT”) protection to proceed. Hua made three arguments in support of her overarching claim that she had been persecuted in the past through enforcement of China’s coercive family-planning policy: 1) she was subjected to two forced abortions; 2) she was implanted with two IUDs against her will; and 3) she and her husband were forced to sign a one-child contract with the government.
The IJ made an adverse credibility determination, found that Hua had failed to corroborate any material element of her story, and denied all requested relief. The IJ noted in her decision that Hua’s testimony was “difficult to follow,” and that “it seems that [she] has forgotten things over time.” The IJ opined that Hua “repeatedly enhanced her claim” during the hearing: “[s]he has decided that she suffered two forced abortions, not one, has decided that she [was] forced to have inserted two IUD’s, not one.” The IJ also noted that although Hua testified to having an IUD inserted against her will, Hua had chosen not to remove the IUD while in the United States. That, in addition to Hua’s liver disease, hepatitis, and need for medical therapy, left the IJ unconvinced that Hua actually planned to have another child.
The Board of Immigration Appeals (“BIA”) dismissed Hua’s appeal. It first noted that Hua had failed to challenge the IJ’s finding that her asylum application was untimely. The BIA next determined that the IJ’s adverse credibility finding was not clearly erroneous. The BIA specifically deferred to the IJ’s findings that Hua had “repeatedly enhanced her claim, creating testimony as she moved through the hearing,” and also that Hua “had difficulty remembering when the abortions occurred and that the testimony was difficult to follow.” The BIA thus concluded that the IJ’s “demeanor-like observations,” coupled with the testimonial inconsistencies, “constitute significant evidence of a lack of credibility in the respondent’s asylum claim under the REAL ID Act.” The BIA also determined that Hua had not met her burden for relief under the CAT. Hua appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen 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 BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Hua filed her asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the heart of her claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Hua’s demeanor, the plausibility of her story, and on the consistency of her state*406ments. See 8 U.S.C. § 1158(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
III.
We conclude that Hua is ineligible for statutory withholding of removal because the adverse credibility determination in this case is supported by substantial evidence.1 The BIA “held that Petitioner lacked credibility because ‘she repeatedly enhanced her claim, creating testimony as she moved through the hearing.’ ” We agree. There are several material inconsistencies in and between Hua’s testimony and asylum application regarding both the number of forced abortions and IUD insertions, and the dates of those abortions and insertions. Moreover, Hua’s testimony concerning her husband’s employment with the military, as it related to the crux of Hua’s claim, was hazy and inconsistent. Finally, we agree with the BIA that Hua’s apparent voluntary use of the IUD conflicts with her claim that it was forcibly inserted by the Chinese government.
Hua does not directly contest the IJ’s findings regarding the significant inconsistencies between her testimony and asylum application. Instead, Hua blames the material omissions from her asylum application (the number and dates of the alleged forced abortions and IUD insertions) on a “memory lapse.” Hua alternatively argues that because the asylum application was written in English, she was unfamiliar with its contents. Ironically, the latter argument is itself inconsistent with Hua’s testimony at the removal hearing:
IJ: All right and then your application for asylum, is that your signature?
HUA: Yes.
IJ: Do you understand ... everything in these papers[?][H]as it been explained to you?
HUA: Yes.
IJ: And is everything true and complete in every respect?
HUA: Yes.
(AR 144.)2 We agree with the IJ and BIA that both explanations are deficient.
We will reverse the findings of the BIA as to Hua’s credibility only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). No such evidence is present here. Accordingly, we will deny the petition for review.3
.The only relief Hua appears to be pursuing is withholding of removal under 8 U.S.C. § 1231(b)(3). Hua does not challenge the IJ's finding that her asylum application was untimely, correctly acknowledging that we would not have jurisdiction to review that claim if she had raised it on appeal. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). Hua also does not challenge the agency’s determination that she is ineligible for CAT relief and, as a result, she has waived that line of argument. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. We are unpersuaded by the explanation for that inconsistency in Hua's reply brief.
. Given our reasoning in support of this disposition, an analysis of Hua’s arguments concerning corroborative evidence is unnecessary. We note only that, the Government's disagreement with Toure v. Att’y Gen., 443 F.3d 310 (3d Cir.2006), notwithstanding, that case remains binding precedent in this Circuit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477722/ | OPINION
PER CURIAM.
Yevgeniy Churilov petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The Government has moved to dismiss the petition in light of Churilov’s voluntary return to Russia. For the reasons that follow, we will grant the Government’s motion in part and deny it in part. Furthermore, we will dismiss Churilov’s petition in part and deny it in part.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. Churilov, a native and citizen of Russia, entered the United States in November 2000. In May 2004, he was placed in removal proceedings for having entered the United States without being admitted or paroled. He conceded remov-ability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In support of his application, he argued that he feared returning to Russia because he had suffered persecution on account of his membership in a political group called the Cossacks.
In May 2007, after a hearing on the merits, the Immigration Judge (“IJ”) denied Churilov’s application. The IJ concluded that Churilov’s asylum claim was time-barred and that, in any event, it suffered from “issues of incredibility and implausibility.” (See Decision of IJ at 13.) The IJ also concluded that Churilov had failed to show that he was entitled to withholding of removal or CAT relief.
On appeal, the BIA affirmed the IJ’s ruling that Churilov’s asylum claim was time-barred. The BIA also concluded that the IJ did not err in denying Churilov’s requests for withholding of removal and CAT relief; however, the BIA did not rely on the IJ’s credibility determination. Instead, the BIA considered the merits of Churilov’s claims and concluded that they failed to satisfy the standards for withholding of removal and CAT relief, respectively. Finally, the BIA rejected Churilov’s argument that the transcript of the hearing before the IJ was poorly translated, noting that Churilov “has not directed our attention to a single specific error in the translation, nor has he explained what was misunderstood or omitted by the translator that could have affected the outcome in this matter.”1 (BIA Decision at 3.)
Churilov timely petitioned this Court to review the BIA’s decision. At the time he filed his petition, he moved for a stay of removal, which we granted as unopposed in April 2009. In October 2009, after the parties had submitted their respective briefs, the Government informed us that Churilov had voluntarily returned to Russia in September 2009. In light of his departure, the Government has moved to dismiss the petition.
II.
In support of its motion to dismiss, the Government argues that there are no longer any issues over which we have jurisdiction because: (1) we lack jurisdiction to review the BIA’s decision affii’ming the IJ’s denial of Churilov’s asylum claim as time-barred; and (2) Churilov’s decision to voluntarily return to Russia has rendered his "withholding of removal and CAT claims moot. Although the Government is correct that *409we lack jurisdiction to review the denial of Churilov’s asylum claim, see 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003), his return to Russia has not mooted his withholding of removal and CAT claims. See Gomez-Zuluaga v. Att’y Gen. of the U.S., 527 F.3d 330, 339 n. 4 (3d Cir.2008) (“Because a final order of removal creates sufficient collateral consequences, [petitioner’s removal does not moot her petition for review” (internal quotation marks and citation omitted)); see also Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1171 (9th Cir.2003) (noting that the court may consider a petition for review after the alien has voluntarily departed the United States). Accordingly, we will grant the Government’s motion to dismiss as- to Churilov’s asylum claim and deny the motion as to his claims for withholding of removal and CAT relief. We now turn to the merits of his challenge to the denial of his withholding of removal and CAT claims.2
III.
‘Where the BIA renders its own decision and does not merely adopt the opinion of the IJ, we review the BIA’s decision, not that of the IJ.” Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir.2008). We review the factual findings underlying the BIA’s denial of withholding of removal and CAT relief for substantial evidence. See Tarrawally, 338 F.3d at 184. Under this deferential standard of review, we must uphold the BIA’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).
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. To meet this standard, the alien must show either (1) past persecution, which creates a rebuttable presumption of future persecution; or (2) that it is more likely than not that he will suffer future persecution if removed. See 8 C.F.R. § 208.16(b). “Persecution” consists of “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). To be eligible for CAT relief, an alien must show that it is more likely than not that he will be tortured if removed to the country in question. 8 C.F.R. § 208.16(c)(2). “Torture” consists of the intentional infliction of “severe pain or suffering ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Churilov has not shown that a lack of substantial evidence compels vacating the BIA’s denial of his claims for withholding of removal and CAT relief. First, his argument challenging the IJ’s adverse credibility determination is irrelevant, as the BIA’s decision did not turn on his credibility. Second, with regards to the claim for withholding of removal, the past events to which Churilov testified do not constitute persecution, as that term is defined in Fatin, 12 F.3d at 1240. Nor has Churilov demonstrated that he will more likely than not face future persecution or, in relation to his claim for CAT relief, torture in Russia. Finally, to the extent he argues that errors in the transcription of his testimony bear on the merits of his *410withholding of removal and CAT claims, he has failed to demonstrate that testimony not reflected in the transcript changes the outcome of this case.
In light of the above, we will dismiss the petition for review in part and deny it in part.
. It appears that the issue was actually one of flawed transcription, not flawed translation, as there are portions of the transcript that were transcribed as "indiscernible.”
. We have jurisdiction over these claims pursuant to 8 U.S.C. § 1252(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477728/ | OPINION
PER CURIAM.
Marian Hassan Reda, a citizen of Lebanon, last entered the United States in 1990 *417as a visitor. In 2003, the Government charged her as removable for overstaying her visa. Reda conceded the charge, and applied for asylum, withholding, and protection under the Convention Against Torture (“CAT”).
The first Immigration Judge (“IJ”) who heard Reda’s case took written submissions about the timeliness of the asylum application, and issued an oral decision that the application was time-barred and not subject to exceptions for filings beyond one year of arrival. R. 105-06. Reda, through counsel, subsequently affirmed that she was pursuing withholding and CAT relief only. R. 110. In her written decision, the next IJ cited the earlier decision on the asylum claim and denied the other then-pending applications for relief. The Board of Immigration Appeals (“BIA”) dismissed Reda’s subsequent appeal.
Reda, through counsel, presents a petition for review. We first address the scope of our jurisdiction over the petition. The Government moves to dismiss for lack of jurisdiction Reda’s petition as it relates to the asylum question.1 We have jurisdiction to review constitutional claims and questions of law but not factual or discretionary determinations concerning the timeliness of an asylum application. See 8 U.S.C. §§ 1158(a)(3) & 1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir.2006).
Reda at one point states that a decision on her asylum claim does not exist. Appellant’s Brief 6. However, in context, we do not read that statement literally, particularly because she otherwise describes the IJ as refusing to apply an exception to the one-year filing deadline for asylum applications. Appellant’s Brief 5-7. Also, the IJ’s oral decision is in the record. R. 105-06. We do not have jurisdiction to review the substance of that ruling. See 8 U.S.C. § 1158(a)(3).
However, we will consider Reda’s legal argument that how the IJ decided the asylum question — allegedly without a hearing, without giving reasons for the denial, and without a formal written ruling — violated her right to due process of law. We conclude that Reda’s due process rights were not violated. Reda was provided with notice and the opportunity to be heard. When her counsel first proposed that Reda might be subject to an exception to the one-year deadline, the IJ allowed counsel time to prepare a memorandum of law on the issue and solicited a response from the Government. R. 102. The IJ provided reasons for her decision when she reconvened the hearing and explained that she had considered the briefs and was not persuaded by Reda’s arguments. R. 106. Furthermore, to the extent that there was no formal ruling on asylum application, it was because Reda, or rather, Reda’s counsel, did not further pursue an asylum claim before the IJ after the IJ’s oral ruling. R. 110 (presenting an application for withholding and CAT relief and confirming that those two forms of relief were the only forms of relief then under consideration).
As to withholding of removal,2 Reda argues that the IJ erred in failing to *418take administrative notice of the state of affairs in Lebanon at the time of her hearing; erred in stating that she was without sufficient evidence to grant relief despite Reda’s credible testimony; and erred in failing to review a report from Amnesty International. Reda also expresses concern about the IJ’s statement, at one point in her hearing, that the IJ had another case in 50 minutes, as well as about how her illiteracy affected her testimony.
On review, we conclude that the agency did not err in concluding that Reda failed to show a ‘clear probability’ that she will be persecuted on her return to Lebanon. See Kaita, v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir. 2008). Reda claimed that she would be persecuted for two reasons. The first was that in 1983, she witnessed the murders of her uncles and cousins. R. 156. She was hiding in a washing machine when her relatives were killed, but she heard the attackers say that they were there to kill everyone in the house and she saw them. R. 154-56. The attackers, some of whom she could identify by name and as members of Hezbollah, heard her scream, so they knew she was a witness. R. 157 & 160. However, Reda stated that neither she nor anyone in her village knew the reason why the murders occurred. R. 164. Given this statement and the fact that Reda did not explain how any threat that she might face for witnessing the murders would be on account of a protected ground (and averred that neither she nor any family member ever belonged to a political organization, R. 234), it cannot be said that the evidence compels a conclusion contrary to the BIA’s. See Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.2001) (“[P]urely personal retribution is, of course, not persecution on account of [a protected ground].”)
Reda’s second claim of persecution was that she may fall -victim to an honor killing by a relative because she married an older man (a cousin) without her family’s permission more than 20 years ago. However, the only relatives she identified as remaining in Lebanon are her two brothers, R. 165, with whom she speaks, R. 173, and who warned her not to return because they feared that she would face a threat from the persons or group who murdered her family members, R. 189. Her brothers also wrote a letter in support of her application in which they discussed Reda’s efforts to emigrate to a location where she could find “self-dignity, freedom, and civil rights.” R. 243. As the BIA noted, it is highly implausible that those same brothers who urged her to avoid a threat to her safety would be motivated to kill her on her return. Furthermore, with this claim, too, Reda failed to show that any persecution she might face would be due to her race, religion, nationality, membership in a particular social group, or political opinion.
Accordingly, we perceive no error in the IJ’s conclusion that Reda had not met her burden of proof as to withholding despite Reda’s credible testimony. We also reject Reda’s remaining claims. Nothing in the record suggests that Reda’s illiteracy or the IJ’s scheduling of another case (or any other action by the IJ) prevented Reda from fully presenting her case. See Fadiga v. Attorney Gen. of the United States, 488 F.3d 142, 155 (3d Cir. 2007). Furthermore, despite Reda’s claim to the contrary, the IJ did consider evidence of country conditions and news ac*419counts and take administrative notice of events in Lebanon, including Hezbollah activities. R. 85, 126-27, 182-88. However, this evidence of “ ‘[m]ere generalized lawlessness and violence between diverse populations’ ” was insufficient to show that Reda would be targeted for persecution based on a protected ground. Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (citation omitted).
For the reasons given, we grant the Government’s motion and will dismiss Reda’s petition to the limited extent that we lack jurisdiction over the factual determination that her asylum application was untimely. We will otherwise deny the petition for review.
. Initially, the Clerk's Office also listed Reda’s case for possible dismissal for jurisdictional defect because Reda filed an amended petition for review more than 30 days after the BIA’s decision. However, we conclude that the amendment to explicitly cite the asylum decision after the time for filing ended does not bar us from considering the petition. Reda timely filed her initial petition that identified the BIA decision and cited the withholding and CAT claims.
. As the Government notes, Reda does not pursue her CAT claim in her petition, so we *418consider any issues relating to that claim waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477730/ | OPINION
PER CURIAM.
Min Tong Yang petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on January 29, 2009. For the reasons that follow, we will deny the petition for review.
I. Background
Yang, a native and citizen of the People’s Republic of China, entered the United States illegally in May 1999. He is married and claims to have two United States citizen children, born in July 2004 and February 2006. In July 2006, Yang filed for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming that he fears he will be forcibly sterilized if he returns to China because he has violated China’s coercive family planning laws. After a hearing, the Immigration Judge (“IJ”) denied relief, concluding that Yang failed to meet his burden of proof.
On January 29, 2009, the BIA affirmed the IJ’s decision and dismissed the appeal. Through counsel, Yang filed a timely petition for review.
II. Analysis
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252], Because the BIA did not adopt or defer to the IJ’s conclusions, we review only the BIA’s decision. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005). We review findings of fact for substantial evidence. See INA § 242(b)(4)(B) [8 U.S.C. § 1252(b)(4)(B) ]. We review legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). For Yang to succeed on his 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-Zacañas, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Yang bore the burden of demonstrating that he has a well-founded fear of persecution in China. See Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008). The BIA concluded that Yang failed to establish that a person in his circumstances would fear sterilization in China for fathering two United States citizen children. See A.R. 02 (BIA Decision at 1).
Yang’s primary objection to the BIA’s decision centers upon a footnote in which the BIA found, relying upon a 2007 State Department Country Report for China, A.R. 264-324, that “complications could arise” for a Chinese national returning to China with a foreign-born child who is traveling on a Chinese passport. A.R. 03 (BIA Decision at 2, n. 2); A.R. 293 (State Department Report at 30). The BIA noted that, if such an individual were to attempt to register the child as a household member in China, the child would count for purposes of China’s family planning laws “and this could trigger sanctions and economic penalties under the relevant laws.” A.R. 03 (BIA Decision at 2, n. 2).
Yang claims that he is an individual for whom such “complications” will arise. He states that his children have Chinese passports and that the BIA’s finding establishes that his children will count for purposes of China’s family planning laws. As a result, he claims, the BIA’s decision effectively agrees that he will face persecution in China. Yang argues that “he has already intentionally or unintentionally triggered] the sanctions and economic penalties under family planning policy by *421obtaining Chinese travel permits for his children.” Petitioner’s Brief at 19.
Putting aside the fact that the BIA’s finding does not categorically establish that an individual in such circumstances will necessarily face such “complications,” see A.R. 03 (BIA Decision at 2, n. 2) (“complications could arise”), Yang does not address the BIA’s additional finding that, in Yang’s province in China, “the provincial government only imposes economic penalties on families that do not comply with the family planning law, rather than criminal penalties or physically coercive methods....” A.R. 03 (BIA Decision at 2); A.R. 290 (State Department Report at 27). Taken together, these findings reflect that, even if China were to count Yang’s children for the purposes of the family planning laws due to their possession of Chinese passports, the sanctions Yang would face for violating those laws upon return to China are economic in nature.
There is nothing in the record to demonstrate that such economic sanctions would be sufficiently extreme to constitute persecution. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (persecution encompasses “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”). More importantly, Yang never previously raised an economic persecution claim. To the extent he is implicitly attempting to do so for the first time before this Court, we will not consider such a claim. Yang failed to exhaust his administrative remedies because he did not present an economic persecution claim to the BIA in the first instance. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).
.Yang claimed, before both the IJ and the BIA, that he feared he would be forcibly sterilized because he violated China’s coercive family planning laws. The BIA concluded that Yang’s evidence was not sufficient to meet his burden of proof to prevail on this claim. After closely reviewing the record, we conclude that the BIA’s findings rest upon substantial evidence.1 Nothing compels the conclusion that Yang is entitled to relief on his forcible sterilization claim. Elias-Zacarias, 502 U.S. at 481 n. 1,112 S.Ct. 812.
Yang’s remaining arguments pertain only to alleged errors in the IJ’s decision, which is not subject to our direct review.2 See Voci, 409 F.3d at 612-13. None of these arguments provides grounds for disturbing the BIA’s decision.
*422III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. We have repeatedly held that State Department Reports may constitute substantial evidence. See Yu, 513 F.3d at 349.
. For instance, Yang objects to the IJ's finding that, to the extent he was attempting to stand in his wife’s shoes under Chen v. Att’y Gen., 491 F.3d 100, 108 (3d Cir.2007), Yang made an insufficient showing that his wife would be subject to forced sterilization in China. However, Yang did not raise this argument on appeal to the BIA, the BIA did not address this aspect of the IJ's decision, and, in any event, we have overruled Chen. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir.2009) (rejecting principle that an individual may claim asylum based solely upon a well-founded fear that his spouse would be forcibly sterilized). Yang also argues that the IJ “faulted petitioner not to establish his paternity over his two children." Petitioner's Brief at 13. The question of paternity was an issue for the IJ because Yang's name is not listed on his first child's birth certificate and that child was born before Yang's marriage. See A.R. 43 (IJ Decision at 6). However, the BIA’s decision focused on Yang’s failure to establish a reasonable possibility that he would be sterilized in China for having fathered two children while outside China. See A.R. 03 (BIA Decision at 2). The BIA never discussed the issue of paternity and apparently accepted that both children are Yang's for purposes of its decision. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477734/ | OPINION OF THE COURT
PER CURIAM.
Appellant Darryl Booker, proceeding pro se, appeals from the judgment of the District Court granting Appellees’ motion to dismiss. For the reasons that follow, we will vacate the judgment of the District Court and remand for further proceedings.
Booker, a federal inmate, filed a complaint in the United States District Court *426for the Middle District of Pennsylvania pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, alleging that between 1997 and 2006, prison medical. staff at the various federal prisons in which he was incarcerated committed medical malpractice in treating his heart condition. Applying Pennsylvania law,1 the District Court concluded that Booker was required to comply with the Certificate of Merit (“COM”) requirement of Pennsylvania Rule of Civil Procedure 1042.3(a)(1) and granted him several extensions of time in which to do so.2 Within the time provided by the District Court, Booker filed a letter from Steven Spencer, MD, MPH, a physician at Abington Memorial Hospital in Jenkintown, Pennsylvania, in an attempt to comply with the requirements of Rule 1042.3. Appellee immediately objected, arguing that the letter was insufficient to satisfy the literal requirements of the Rule. The District Court agreed and entered an opinion and order dismissing the action without prejudice and denying Appellant’s request for an extension of time in which to file a compliant COM. Appellant appealed.3
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s decision to grant a motion to dismiss, see DeHart v. Horn, 390 F.3d 262, 272 (3d Cir.2004), as well as over the Court’s conclusion that Appellant failed to comply with the requirements of the Rule 1042.3. See Newell v. Ruiz, 286 F.3d 166, 167 n. 2 (3d Cir.2002). We review the District Court’s denial of Appellant’s request for an extension of time for abuse of discretion. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 777 (3d Cir.2000).
Rule 1042.3(a)(1) provides:
In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that ... an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm....
This rule is substantive state law that must be applied by the federal district courts. See Chamberlain v. Giampapa, 210 F.3d 154, 158-61 (3d Cir.2000) (concluding that the New Jersey “affidavit of merit” statute constitutes substantive state law which must be applied by federal district courts in diversity actions). Under Pennsylvania law, plaintiff’s failure to comply with the COM requirements entitles the defendant to direct the prothonotary to enter a judg*427ment of non pros against the plaintiff. See Pa. R. Civ. P. 1042.6. The plaintiff may then seek relief from the judgment of non pros, requesting that it either be struck or opened. See Pa. R. Civ. P. 3051. Courts have held that the entry of judgment non pros is therefore the equivalent of a dismissal without prejudice, and is not fatal to the plaintiffs suit so long as his claims are not time-barred. See, e.g., Stroud v. Abington Memorial Hospital, 546 F.Supp.2d 238, 249 (E.D.Pa.2008); Scaramuzza v. Sciolla, 345 F.Supp.2d 508, 510-11 (E.D.Pa.2004).
In an attempt to satisfy the COM requirement, Booker filed a letter from Dr. Spencer which stated in full:
I am writing this letter on behalf of Darryl Booker. I was sent his medical ... file to review in light of events surrounding the diagnosis of his coronary artery disease. In brief, he was seen multiple times by the prison medical staff for the chief complaint of chest pain. From my review of the notes, the diagnosis for most of those visits was musculoskeletal pain. The visit that I found to be the most questionable occurred on 9/12/06. At this time, Mr. Booker complained of chest pain and was once again diagnosed with musculo-skeletal pain and given an anti-inflammatory medication. Two weeks later Darryl was sent to the ER with an acute MI. Other notes document obtaining an EKG, but I could not find a note that comments on his previous abnormal EKGs including those done on 1/6/06 and 4/7/06. Those EKGs reveal findings that area [sic] concerning for cardiac ischemia yet there is no documentation of the appropriate followup which would usually include an echocardiogram, stress test, and possibly a cardiology evaluation. I therefore believe this case warrants a closer look. Please feel free to contact me if you have any questions or concerns.
In the document to which the letter is appended, “Notice of Filing of Certificate of Merit,” Appellant requests guidance in properly phrasing the COM and, if necessary, an extension of time in which to satisfy those requirements. On appeal, Appellant has indicated that the “doctor that prepared the Certificate of Merit (COM) has stated after the fact he would have had no problem making and supporting such a statement about the medical services and treatment that was revealed in the medical records.” (Appellant’s Br., 4-5-1.)
Appellee argues that the District Court properly concluded that Dr. Spencer’s letter does not satisfy the literal requirements of the Rule, as it does not state that “there exists a reasonable probability that the care, skill or knowledge ... exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm....”4 (Appellee’s Br., 12.) Ap-pellee maintains that Booker should not be excused from complying with the letter of the Rule merely by virtue of his pro se status.
In Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), the Pennsylvania Supreme Court held that while full compliance with Rule 1042.3 is expected, the Rule is nonetheless subject to certain equitable exceptions:
... we have always understood that procedural rules are not ends in themselves, and that the rigid application of our rules does not always served the inter*428ests of fairness and justice. It is for this reason that we adopted Rule 126, which provides in pertinent part that “[t]he court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa. R. Civ. P. No. 126. With this language, we incorporated equitable considerations in the form of a doctrine of substantial compliance into Rule 126, giving the trial courts the latitude to overlook any “procedural defect” that does not prejudice a party’s rights. Thus, while we look for full compliance with the terms of our rules, we provide a limited exception under Rule 126 to those who commit a misstep when attempting to do what any particular rule requires. Moreover, we made Rule 126 a rule of universal application, such that the trial court may disregard any such procedural defect or error at every stage of any action or proceeding to which the civil procedural rules apply.
Id. at 276 (citations omitted). Having concluded that such equitable exceptions are available to plaintiffs who make an effort to substantially comply with Rule 1042.3, the Womer Court nonetheless rejected Womer’s argument that he had substantially complied with the Rule by providing defendant with an expert report which set forth the information that a COM would have contained and which comported with the purpose underlying Rule 1043.2 — to affirm that his claims were not frivolous. The Court disagreed, explaining: “Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiffs claim must be filed in the official record in a document called a ‘certificate of merit’ at the time the complaint is filed or within sixty days thereafter.” Id. at 278. The Court concluded that plaintiffs failure to file any such document with the court or to request an extension of time in which to do so was not “a procedural misstep” but rather “a wholesale failure to take any of the actions that one of our rules requires.” Id. Because the plaintiff had made no attempt to provide the court with the information required by Rule 1042.3, it held that he could not take advantage of the exceptions outlined in Rule 126 for substantial compliance. See id. (“Rule 126 is available to a party who makes a substantial attempt to conform, and not to a party who disregards the terms of a rule in their entirety and determines for himself the steps he can take to satisfy the procedure that we have adopted to enhance the functioning of the trial courts.”).
Since Womer, state and federal courts applying Pennsylvania law have applied the “substantial compliance” doctrine in situations where the plaintiff has attempted but failed to meet the technical requirements of Rule 1042.3. See, e.g., Ramos v. Quien, 631 F.Supp.2d 601, 612 (E.D.Pa. 2008) (excusing plaintiffs late filing of a COM under the substantial compliance doctrine where plaintiff requested extension from Court of Common Pleas before case was removed to federal court and filed COM during that time frame); Weaver v. University of Pittsburgh Medical Center, 2008 WL 2942139, at *8 (W.D.Pa. 2008) (holding that “[wjhile the text of the COM did not correspond to the claim of direct liability alleged in the complaint — an error we do not believe should be condoned lightly — such inconsistency does not require dismissal”); Sabo v. Worrall, 959 A.2d 347, 352 (Pa.Super.Ct.2008) (holding, where plaintiffs counsel had timely prepared a COM but his paralegal failed to file it on time, that plaintiff had substantially complied with the Rule). Cf. Newell v. Ruiz, 286 F.3d 166,169-71 (3d Cir.2002) (endorsing substantial compliance doctrine with respect to the Affidavit of Merit required under New Jersey law where plaintiff mistakenly filed COM as required in *429New York, but defendants were not prejudiced by permitting plaintiffs potentially meritorious claim to proceed, plaintiff had taken steps to comply with the statute, the purpose of the two statutes were similar, defendants had notice of plaintiffs claim, and plaintiffs action was reasonable under the circumstances). But see Stroud v. Abington Memorial Hospital, 546 F.Supp.2d 238, 254-55 (E.D.Pa.2008) (holding that, despite indications from plaintiffs complaint and amended COM that he intended to raise both vicarious and direct theories of liability, his failure to indicate both theories in his original COM mandated dismissal of his direct liability claim); Hoover v. Davila, 862 A.2d 591 (Pa.Super.Ct.2004) (holding that pro se plaintiffs lack of knowledge of rule does not excuse noncompliance).
We understand the value of this Rule of Civil Procedure and the important policy considerations which led the Pennsylvania Supreme Court to adopt it. Concerned about the rise in malpractice actions being filed in Pennsylvania courts, the Supreme Court sought a device “that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly.” Womer, 908 A.2d at 275. To that end, the Court determined that:
the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place.
Id. Unlike in Womer, however, this is not a case where Appellant has taken no action or has ignored his obligations to the Court. Rather, Appellant, while incarcerated and proceeding pro se and in forma pauperis, has located a qualified physician, compiled his medical records, timely filed the necessary requests for extensions of time and attempted to provide the Court with a compliant COM. In so doing, Appellant made what we believe to be a substantial attempt to conform to the requirements of the Rule. Accordingly, we conclude that the District Court erred in granting Appel-lee’s motion to dismiss without affording Appellant an opportunity to file a compliant COM. Based on the foregoing, we will vacate the judgment of the District Court and remand for further proceedings consistent with this opinion.
. As the District Court noted, the United States invoked Pennsylvania law and Appellant has not contested its application.
. The Rule specifically provides for an unlimited number of extensions of time, so long as the request is filed before the expiration of the prior extension and the plaintiff has shown good cause. See Pa. R. Civ. P. 1042.3(d).
. Appellant was originally notified that his appeal might be dismissed as untimely, as the notice of appeal was filed one day late. See Fed. R.App. P. 4(a)(1)(B) (providing 60-day appeal period in action in which United States is a party). Appellant subsequently filed a motion for extension of time in the District Court pursuant to Federal Rule of Appellate Procedure 4(a)(5). On July 1, 2009, the District Court granted Appellant’s Rule 4(a)(5) motion. Accordingly, we will not dismiss the appeal as untimely filed.
. While the U.S. Attorney also argues that "the doctor” failed to state in his letter that he has "submitted a written statement opining” as much, the Rule actually calls for Appellant himself to submit such a letter, not Dr. Spencer. (Appellee's Br., 12-13.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477740/ | OPINION OF THE COURT
DIAMOND, District Judge.
David E. Jones appeals from the District Court’s grant of summary judgment, dismissing as time-barred his negligence action against the United States. For the reasons that follow, we will affirm.
I.
Because we write primarily for the Parties, we will recite only those facts pertinent to our analysis.
Jones, a Korean War veteran, had outpatient surgery to repair a protruding umbilical hernia on January 11, 2000 at the Wilmington Veterans Administration Medical Center (VAMC). (App.91.) He was admitted to the VAMC for observation after the surgery, and discharged the next day. (Id.) On January 13, 2000, Jones experienced severe complications. He was admitted to the VAMC emergency room and underwent exploratory abdominal surgery. (Id.) He remained in intensive care at the hospital until January 21, 2000. (Id.) After his discharge, Jones experienced additional post-operative complications. He underwent a third surgery at the VAMC in March 2001 to correct a ventral hernia. (Id.)
Jones contends that the VAMC performed the first two surgeries incompetently. He alleges that the procedures left him unable to perform his job as a truck driver, and that he experiences constant pain and has difficulty controlling his bowels.
Jones sought assistance from the Vietnam Veterans of America, a Congressionally-chartered organization that helps veterans prepare and file claims with the *438federal government. Pursuant to a power of attorney, Vietnam Veterans sent a letter to the Department of Veterans Affairs on March 18, 2000, stating that Jones “wishes to open a claim for service connected disability for complications from operation received at Wilmington VA Hospital for hernia operation, and scars.” (App.25.) The letter did not include any allegations of negligence. On March 15, 2000, the VA responded in a letter that it was “working on [Jones’] claim,” but had not received Form 21-526, required from those seeking disability benefits. (App.28.)
Vietnam Veterans returned a completed, but unsigned, Form 21-526 to the VA on December 18, 2000. On that part of the form asking the applicant to state the “nature of sickness, disease or injuries for which this claim is made and date each began,” Jones wrote “s/c [service-connected] disability for complications from operation received at VAMC, Wilmington for hernia operation and scars.” (App.29.) In its January 16, 2001 letter, the VA acknowledged receiving Jones’ disability claim. (App.34.) Over the next year, the VA sent Jones a series of letters requesting more information, including the exact definition or nature of his disability, a signed Form 21-526, a list of physicians who treated him, and “evidence of current additional disability due to the [hernia] treatment.” (App.34, 37, 40, 41, 52.) Because Jones is illiterate, he was assisted by his daughter and the Vietnam Veterans. Because Jones failed to respond to many of the requests, the VA denied his application on March 22, 2002. (App.72-74.) The decision became final on March 22, 2003 when Jones failed to appeal.
Jones testified that he learned of his right to file a lawsuit under the Federal Tort Claims Act when he consulted a lawyer in May 2003. See 28 U.S.C. § 1346. With the help of the Veterans Assistance Program at Widener Law School, Jones wrote to the VA that he was now alleging medical malpractice and enclosed the required SF-95 form and a claim for money damages in a sum certain. (App. 63.) The VA received the form on June 2, 2003. Jones v. United States, 2008 WL 4952592, at *1-2, 2008 U.S. Dist. LEXIS 94469, at *5 (D.Del. Nov. 20, 2008).
Jones also continued to pursue disability benefits, moving to reopen his claim on August 19, 2003. (App.82.) He appealed the VA’s disability decision to the Board of Veterans’ Appeals, which on October 26, 2006 remanded to the VA for reconsideration. (App.138.) On September 24, 2007, the VA granted Jones’ claim, assigned him a sixty percent disability rating, and awarded him benefits retroactive to August 19, 2003. (App.158.)
On November 20, 2007, Jones brought the instant FTCA suit against the United States, alleging negligent medical practice, lack of informed consent, and battery. The Parties consented to have the case decided by a Magistrate Judge, who granted the Government’s motion for summary judgment, ruling that Jones’ action was time-barred. Jones, 2008 WL 4952592, at *5, 2008 U.S. Dist. LEXIS 94469, at *19.
II.
The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291.
III.
We exercise plenary review over a District Court’s grant of summary judgment and apply the same test applied by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that *439there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
IV.
An FTCA claim for negligence against the Government must be presented to the appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. § 2401. The claim accrues “when a plaintiff knows of both the existence and the cause of his injury.” Miller v. Phila. Geriatric Center, 463 F.3d 266, 272 (3d Cir. 2006). The claim is “presented” (thus tolling the running of the limitations period) when an executed SF-95 and a claim for money damages in a sum certain are received by the government agency. 28 C.F.R. § 14.2.
Jones alleges that the first two surgeries — which took place in January 2000— were incompetently performed. Accordingly, the Government contends — as it did below — that Jones’ limitations period began to run in January 2000. See Miller, 463 F.3d at 271 (limitations period begins to run when cause of action accrues). Although the Magistrate Judge appeared to agree, treating Jones as generously as she could, she ruled that March 9, 2001 — the date of the third surgery — was the latest date that the limitations period could have begun to run. Jones, 2008 WL 4952592, at *2, 2008 U.S. Dist. LEXIS 94469 at *8. Thus she ruled that because Jones was obligated to present his negligence claim no later than March 9, 2003, the VA’s receipt of the claim on June 2, 2003 was outside the limitations period. Id. at *3-4, 2008 U.S. Dist. LEXIS 94469, at *13.
Jones concedes that he brought his claim more than two years after it accrued. As he did below, he contends here that his claim was not time-barred, however, because the running of the limitations period was equitably tolled.
Equitable tolling may apply to claims brought against the Government. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (because federal statutes of limitation are not jurisdictional, “the same re-buttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States”). In Hughes v. United States, we first held that in appropriate circumstances, equitable tolling could apply to claims brought under the FTCA. 263 F.3d 272, 278 (3d Cir.2001). We have recently re-affirmed that holding. Santos v. United States, 559 F.3d 189, 197 (3d Cir.2009) (“[W]e think that our holding in Hughes that there can be equitable tolling in suits under the FTCA remains good law ...”).
As we cautioned in Santos, however, “a plaintiff will not receive the benefit of equitable tolling unless she exercised due diligence in pursuing and preserving her claim” because “[t]he principles of equitable tolling ... do not extend to ‘garden-variety claims of excusable neglect.’ ” Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453). The “remedy of equitable tolling is extraordinary, and we will extend it only sparingly.” Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). We further noted in Santos that “it is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States.” Santos, 559 F.3d at 197 (citing United States v. Kubrick, 444 U.S. 111, 117-19, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).
Equitable tolling may apply to FTCA claims in three instances:
“(1) where the defendant has actively misled the plaintiff respecting the plain*440tiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”
Hedges, 404 F.3d at 751 (internal citations omitted). Jones contends that he has met all three of these requirements. We do not agree.
In Jones’ view, the VA actively misled him by failing to advise him that he could pursue both a negligence action and a disability claim. He believes that the paperwork the VA sent him while investigating his disability claim “would lull any claimant into believing that his claim was adequately and appropriately being addressed.” (Appellant’s Br. at 16.)
The VA did not actively mislead Jones. To the contrary, the paperwork he acknowledges receiving indicates only that the VA sought to process Jones’ disability claim. Although the VA was obligated to “develop the facts pertinent to [Jones’] claim,” it was not required to advise Jones with respect to other legal remedies that might be available. See 38 C.F.R. § 3.103. In Hedges, we explicitly refused to hold that a government agency “has an affirmative duty to inform litigants, including pro se litigants, that they have viable judicial, as well as administrative remedies.” Hedges, 404 F.3d at 752. We explained that “we are unwilling to place such a responsibility on the Government which has inquiries from millions of individuals each year.” Id. Accordingly, Jones is not entitled to equitable tolling on this ground See also Lake v. Arnold, 232 F.3d 360, 367 (3d Cir.2000) (plaintiffs mental disability and illiteracy did not warrant equitable tolling).
Jones also argues that his case is similar to Santos, where we applied equitable tolling after finding that Mercy Santos — who was six years old when she was allegedly subjected to negligent care — had been prevented from asserting her rights in “some extraordinary way.” Santos, 559 F.3d at 203-04. The defendant agency in Santos was the York Health Corporation’s pediatric clinic. Id. at 190. Although Ms. Santos and her counsel pursued her negligence claim diligently, counsel — who researched publicly available clinic records— was unable to learn that because the clinic received federal funds, it was a federal entity for FTCA purposes. Id. at 200-01. Counsel thus erroneously believed that a longer limitations period applied to Ms. Santos’ claim when he belatedly filed her negligence claim in state court. Id. at 191. We found that in light of Ms. Santos’ tender years, and because information disclosing the clime’s federal status was “if not covert, ... at least oblique,” Ms. Santos had been prevented from asserting her rights in an extraordinary way, thus triggering equitable tolling. Id. at 202.
Jones’ effort to analogize his case to that of Ms. Santos is misplaced. As Jones well knew, the VAMC is a federal facility. Moreover, Jones was not diligent in pursuing his negligence claim. Rather, he waited almost three and a half years after sustaining injury to consult a lawyer. See Kubrick, 444 U.S. at 124 n. 10, 100 S.Ct. 352 (plaintiff did not exercise “all reasonable diligence” in pursuing his tort claim because “he sought no advice within two years [after his injury] as to whether he had been legally wronged”). The record does not show — and Jones does not suggest — that the VA prevented him from consulting with counsel sooner. See Hedges, 404 F.3d at 746, 752. Accordingly, his decision to wait until May 2003 to seek legal advice does not demonstrate the diligence necessary to make this an extraordinary case warranting the extension of equitable tolling.
Jones also appears to suggest that he mistakenly asserted his rights in the *441wrong forum. He contends (without any further explanation) that he “did everything he could to prosecute his claim for malpractice yet ended up in the wrong forum.” (Appellant’s Br. at 18.) This is a puzzling remark, given that Jones brought his claims in the correct fora: (1) he properly sought disability benefits from the VA; (2) he properly (albeit belatedly) filed his SF-95 with the VA and later brought suit in the District Court. Accordingly, Jones cannot show that he raised “the precise statutory claim in issue but has mistakenly done so in the wrong forum.” School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir.1981). Rather, he brought his FTCA claim in the correct forum after the claim was time-barred. Accordingly, the “wrong forum” equitable tolling requirement has not been met.
In sum, regardless of whether Jones was obligated to initiate his negligence claim by January 2002 or March 2003, it is evident that he acted outside the two-year limitations period. In the circumstances presented, we are constrained to conclude that Jones has presented a “garden-variety claim[] of excusable neglect,” not an extraordinary circumstance that warrants equitable tolling. Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453). Because Jones’ claim is thus time-barred, the Magistrate Judge correctly determined that the United States was “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
V.
For the reasons discussed above, we will affirm the decision of the Magistrate Judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477742/ | OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
These matters come on before this Court on consolidated appeals from judgments of conviction and sentence entered on October 27, 2008, and certain earlier orders in these criminal proceedings in the District Court. Following the defendants’ convictions, the Court imposed custodial sentences followed by periods of supervised release on each defendant. For the reasons that follow, we will affirm.
II. BACKGROUND
At the times material to this case, defendants, now appellants, David and Anna Delle Donna, who are husband and wife, were public officials in Guttenberg, Hudson County, New Jersey, David being the mayor and Anna being a member of the Guttenberg Planning Board.1 (We will refer to appellants as “David” and “Anna” because of their common last name.)
This case focuses on the interplay between the actions of a local bar-owner, Luisa Medrano, and her sister Eduviges (“Duvi”) Medrano, on the one hand, and appellants on the other hand. (We will refer to the Medranos as “Luisa” and “Duvi,” again because of their common last name.) Luisa owned several bars in and around Guttenberg from which she derived a substantial income.2 In 2002 one of Luisa’s bars, the Puerta de la Union, ran into regulatory trouble with Guttenberg’s Alcoholic Beverage Commission (“ABC”), of which David as mayor was a member. Consequently, on May 4, 2002, there was a hearing that Luisa and Duvi attended before the ABC at which the bar’s license was subject to suspension.
During a break in the ABC proceedings, Duvi met Anna at a water fountain and the two women engaged in a brief conversation. Following the conversation Duvi informed Luisa that Anna was the mayor’s wife and it might be good for business if they could befriend her. Luisa agreed as she reasoned that her generosity to Anna would lead to the Delle Donnas helping *444her and that any money she spent on the Delle Donnas would be a small price to pay if it kept her bar in good standing. Consequently, the Medrano sisters intentionally set out to befriend Anna in the hope that she and her husband would perform favors in their capacities as public officials benefitting Luisa’s business.
Over the course of the next few years, Anna and Duvi became fast friends and Anna and Luisa also became friends, though to a less intense extent. The circumstance that Anna is fluent in Spanish, Luisa speaks only Spanish, and Duvi speaks Spanish and hesitant English furthered the development of the relationships. On the other hand, David does not speak Spanish and therefore never conversed with Luisa directly. Luisa testified that during the course of her friendship with Anna, she gave Anna numerous gifts including a sapphire necklace, hundreds of dollars in gift cards, liquor, face cream, a garage storage system, half of the cost of an expensive dog, thousands of dollars for gambling in Atlantic City, and money for breast surgery. The Delle Donnas denied receiving some of these items but David admitted that he knew that Luisa gave some of the smaller gifts to Anna and that Luisa had paid for half of the cost of the dog.3
The gift-giving, however, was not entirely one-way, and the record clearly shows that Anna thought of Duvi and Luisa as genuine friends. Anna gave Luisa a pocketbook, clothing, and earrings as gifts and Duvi was a regular guest at the Delle Donna household. The Delle Donnas were christened as godparents to Duvi’s two children, and the Delle Donnas gave expensive gifts to mark the occasion. When Duvi’s son needed emergency surgery to save his life, the Delle Donnas loaned Duvi the $5,000 that she needed. Accordingly, it is accurate to say that this case differs from the typical political corruption case in which the defendant public official receives benefits from a person seeking favors but does not reciprocate at his or her own expense.
Luisa testified that Anna promised to use her position on the planning board to assist her and that Anna promised to “speak with her husband” to help her businesses. App. at 921, 942, 948. Thus, when Luisa needed a building permit to convert a bar into an apartment, Anna promised to speak with her husband about helping her. In fact, Anna helped Luisa fill out an English-language application for the permit and then accompanied Luisa when she submitted the application to the building code supervisor. Two days later, David asked the code supervisor whether the permit was going to issue and then, one year later, asked how the process was going. The building inspector testified that the mayor and his wife showed a unique interest in Luisa’s project with his questions. In another matter the town garbage inspector testified that David asked him to “take care of’ several tickets that had been issued to Luisa, a request that the inspector thought was improper. David told a friend that he had to take care of Luisa’s tickets because his wife was pestering him about it.
*445David points out that there were two ABC hearings during his time as mayor directly involving Luisa’s businesses, one involving discipline and one dealing with a license application, and in both cases he recused himself. David, however, did not recuse himself when Luisa’s liquor licenses were up for annual renewal because the Guttenberg municipal attorney advised him that he did not need to recuse in such “pro forma” matters.
After the government arrested and interrogated Luisa it began investigating the Delle Donnas. That investigation led to the return of a superseding indictment charging the Delle Donnas with five counts of criminal conduct: conspiracy to commit mail fraud under 18 U.S.C. §§ 1341, 1346, 1349 (Count One); mail fraud under 18 U.S.C. §§ 1341, 1346 (Count Two); conspiracy to commit extortion under color of official right under 18 U.S.C. § 1951(a) (Count Three); filing a false income tax return with respect to rental income under 26 U.S.C. § 7206(1) (Count Four); and filing a false income tax return with respect to gifts received under 26 U.S.C. § 7206(1) (Count Five). The Delle Donnas made a pretrial motion in which they asked the Court to sever Count Four from the indictment for the trial as they argued that the count was not related factually to the remaining counts. At the same time the Delle Donnas asked the Court to sever Count Five so that the tax counts could be tried together. The Court, however, denied this request in an opinion and order dated March 14, 2008, and thus the Court tried all five counts against both defendants at a single trial.
At the conclusion of a lengthy trial at which the Delle Donnas testified, the Court, over Anna’s objection, gave an instruction explaining when a defendant with a mixed motive for her conduct, partially corrupt and partially neutral “like friendship,” can be guilty of extortion. Thereafter the jury acquitted the Delle Donnas on the mail fraud counts (Counts One and Two) but returned a guilty verdict against them on the extortion and tax evasion counts (Counts Three, Four, and Five). The Delle Donnas filed a joint motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on the extortion count (Count Three), but the District Court denied this request in an order dated April 29, 2008.
At sentencing, the District Court calculated similar advisory guideline sentencing ranges for David and Anna except that the Court enhanced David’s sentence by 2 levels under U.S.S.G. § 3C1.1 for obstruction of justice by reason of its belief that David must have committed perjury during his testimony on the conspiracy and tax counts because the jury did not accept that testimony. The Court’s sentencing calculations led to it determining David’s advisory guideline sentencing range as 63 to 78 months, based on an offense level of 26 and a criminal history category of I. Anna’s advisory guideline sentencing range was 51 to 63 months, based on an offense level of 24 and a criminal history category of I. The Delle Donnas argued that the advisory guideline sentencing ranges produced unduly severe sentences when compared to the sentences imposed in the district court in New Jersey on similarly situated defendants. In support of this contention the Delle Donnas submitted a list of 41 public figures convicted of criminal offenses involving public corruption in the District of New Jersey on whom district courts recently had imposed sentences below the Delle Donnas’ guideline sentencing range. The Delle Donnas argued that the Court when sentencing them should take these other sentences into account pursuant to 18 U.S.C. § 3553(a)(6) which provides that a court should avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar *446offenses. The Court reviewed the list of allegedly similar cases but concluded that many of the crimes for which the other defendants had been convicted were not similar to the Delle Donnas’ offenses and refused to vary from their guideline sentencing ranges by reason of those cases.
The District Court imposed custodial sentences of 51 months on both Anna and David on the extortion conspiracy count and 36-month custodial sentences on both tax counts, all custodial sentences to run currently, to be followed by concurrent two-year terms of supervised release on each count. The Court recognized that David’s suggested advisory guideline sentencing range was higher than Anna’s but concluded that “a fairer and more equitable result will be achieved by issuing both Anna and David Delle Donna the same sentence.” App. at 3657. In addition, the Court fined each defendant. The Court subsequently issued final judgments of conviction and sentence for Anna and David on October 27, 2008.
The Delle Donnas separately appealed but the clerk of our Court consolidated their appeals for briefing and argument. The Delle Donnas challenge the District Court’s (1) refusal to sever the rental tax evasion charges contained in Count Four, (2) use of the term “like friendship” in the jury instructions when addressing when a defendant acting with a partially corrupt and partially neutral motive for his or her actions can be guilty of extortion, (3) denial of their Rule 29 acquittal motion, (4) enhancement of David’s guideline sentencing range for obstruction of justice, and (5) refusal to reduce the sentences to conform to lower sentences given to similarly situated New Jersey public figures.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. §§ 1291, 3742(a). We will not reverse a criminal conviction by reason of insufficiency of the evidence unless the evidence viewed in the light most supportive of the fact-finder’s decision cannot support the verdict. United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992). But we review questions of law, such as the legal appropriateness of a join-der of offenses, de novo. United States v. Thornton, 1 F.3d 149, 152 (3d Cir.1993). We review questions over which a district court has discretion, such as the discretionary joinder of offenses, to determine if the court has abused that discretion. United States v. Lore, 430 F.3d 190, 205 (3d Cir.2005).
IV. DISCUSSION
A. Denial of Motion to Sever Rental Tax Evasion Charge (Count Four)
The Delle Donnas owned numerous residential properties that they rented to lower-income tenants, several of whom testified at trial. These tenants testified that they received housing assistance which paid most of their rent and that they paid the remainder of their rent directly to the Delle Donnas. The government argued that the Delle Donnas did not report all of this rental income on their tax returns, and the grand jury charged the Delle Donnas with tax evasion for failing to do so (Count Four).
As we have indicated, before the trial, the Delle Donnas made a motion to sever Count Four from the indictment, arguing that as a matter of law it should be severed because it was prejudicial to try a charge for commission of what essentially was a completely separate crime at the same time as the other charges. They also contended that the District Court as a matter of discretion should sever Count Five from Counts One, Two, and Three so that the two tax counts could be tried *447together. The Delle Donnas argued that a jury might find them guilty of not reporting their rental income for income tax purposes and then conclude that the Delle Donnas similarly must be guilty of the other charges (or vice versa). This fear was not unfounded because at the trial the government asserted that each count of the indictment reflected on every other count of the indictment, thereby making the exact connection that the Delle Donnas anticipated. Indeed, during its opening statement the government explained that the Delle Donnas had not reported their rental income on their tax returns and then told the jury, “[YJou’ll hear that in the same way that the Defendants were not reporting to the State of New Jersey all the cash contributions and gifts that they got from Luisa Medrano, they were also not reporting the full scope of their income to the Federal Government.” App. at 183. During closing arguments, the government reiterated that “all five counts in the indictment” concerned “corruption, concealment, and fraud.” App. at 3120.
The government opposed the Delle Don-nas’ motion to sever Count Four and Count Five. It contended that: (1) Count Three alleged a conspiracy to commit extortion; (2) Count Five alleged that the Delle Donnas evaded taxes when they did not report the extortion payments and therefore Count Five properly was joined to Count Three; and (3) Count Four properly was joined to Count Five because both counts charged tax evasion. The government also pointed out that the Delle Donnas’ accountant was scheduled to testify, so it would not complicate the trial unnecessarily to inquire into the Delle Donnas’ rental income at a trial on the other counts. Citing judicial economy, the Court rejected the Delle Donnas’ request to sever Count Four and Count Five but it did charge the jury that each count alleged a separate crime and that the jury should consider each count separately.
Rule 8(a) of the Federal Rules of Criminal Procedure governs the joinder of offenses and Rule 8(b) governs the joinder of defendants. Though, in terms, Rule 8 suggests that Rule 8(a) should govern here, we have held that Rule 8(b) should be applied to cases involving multiple defendants even when the issue is the joinder of offenses. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir.2003). Rule 8(b) permits joinder if the two offenses relate to “the same act or transaction, or ... the same series of acts or transactions.” Nevertheless, inasmuch as the strictures of Rule 8 are not of constitutional magnitude, even if joinder is not proper under Rule 8 there will not be a reversible error unless the mistake had a substantial effect on the outcome of the proceedings. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). But even in cases in which it is technically proper to have a joinder under Rule 8, a defendant may move for a severance under Federal Rule of Criminal Procedure 14 to prevent prejudice. The Delle Donnas made a Rule 14 motion in this case, so both Rule 8 and Rule 14 are implicated on this appeal.
Though we recognize that the government’s contention that Count Four is based on the same tax evasion statute as Count Five and that Count Five is related to Count Three is correct, and though we are well aware that joint trials promote efficiency in the pursuit of justice, United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005), we think that it would be superficial to end our inquiry into the joinder and severance questions with these observations. In its essence the superseding indictment alleges in Count Three that the Delle Donnas promised official favors in exchange for money and gifts. Clearly, the fact that they were not reporting all of their rental income for tax purposes hardly is related to the basic circumstances of Count Three, and it is troublesome when the government plays “eonnect-the-dots” *448in the manner it has done in this case. By-linking one crime to another, statute by statute or subject by subject, the government can combine several cases in one. See United States v. Gentile, 60 F.R.D. 686, 688 (E.D.N.Y.1973) (“[T]he government has an obligation to allege more than that the offenses are of a similar nature or that there are common participants.”). Such linking permitted the government to add charges related to the Delle Donnas’ conduct as landlords to unrelated extortion activity. The connecting of the dots is obvious because the charges against the Delle Donnas as landlords involved a failure to report income on rent under Count Four, which relates to failure to report income on the fruits of the extortion under Count Five, which, in turn, relates to the political corruption at issue in the case charged under Count Three.
Yet we will not reverse a conviction by reason of misjoinder of offenses unless the misjoinder had a substantial effect on the outcome of the proceedings. Lane, 474 U.S. at 449, 106 S.Ct. at 732. We think that here the misjoinder, assuming that there was one, could not have had a substantial effect on the trial. The rental income issue was relatively simple, and there was very little testimony devoted to it during the lengthy trial. See Lore, 430 F.3d at 205 (jury easily could compartmentalize separate charges when extra charge was “relatively straightforward and discrete, not involving overly technical or scientific issues”). The District Court explained to the jury that each count of the indictment alleged a separate crime and the jury clearly understood this fact, as demonstrated by the circumstance that, after five days of deliberation, it returned not guilty verdicts on Counts One and Two and guilty verdicts on the remaining counts. This jury performed its function with great care. Therefore, we will reject the Delle Donnas’ challenge to the joinder of Count Four under Rule 8. Furthermore, we do not think that the District Court abused its discretion under Rule 14 by refusing to sever Count Four when that refusal did not have a substantial effect on the trial. See United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981) (defendant must demonstrate “clear and substantial prejudice resulting in a manifestly unfair trial” before court will reverse district court’s exercise of discretion under Rule 14). It follows that the Court did not err in not severing Count Five as the severance of that count depended on the severance of Count Four.
B. Use of “Like Friendship” As a Specific Example in Jury Instructions
At trial, Anna argued that she acted solely out of friendship with the Medrano sisters, and thus she exchanged gifts with Anna and gave standard promises to help her and that the case involves nothing more. The District Court gave a “dual motive” instruction to the jury which stated that a person commits extortion under color of official right when that person has “a partly corrupt intent and a partly neutral intent, like friendship.” App. at 3378. At the trial Anna argued that the instruction undermined her defense because it used “friendship” as a specific example of a neutral intent even though she based her defense on her contention that she acted solely out of friendship in aiding Luisa. The Court denied Anna’s request and it used the “friendship” instruction in its charge to the jury.
Anna recognizes that the District Court’s charge correctly stated the law,4 *449but argues that the instruction nevertheless was misleading. She explains that “[t]he problem is that the district court seized upon Mrs. Delle Donna’s defense theory and suggested impermissibly to the jury that Mrs. Delle Donna’s friendship with Luisa Medrano was sufficient evidence of intent to commit extortion.” Appellants’ br. at 40. Furthermore, “the judge’s instructions eviscerated Mrs. Delle Donna’s defense.” Appellants’ reply br. at 13. Anna contends that by mentioning friendship as an example of neutral intent, the Court “led the jurors to conclude that Mrs. Delle Donna could be guilty of extortion simply by being Luisa Medrano’s friend.” Id. at 13-14.
We exercise plenary review when determining if a jury instruction correctly states the law, and, when the instruction passes that threshold requirement, we review a district court’s wording of the instruction for an abuse of discretion. See United, States v. Jimenez, 513 F.3d 62, 74-75 (3d Cir.2008). We conclude that an instruction is erroneous when we are left with a “substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” United States v. Traitz, 871 F.2d 368, 383 (3d Cir.1989) (questioning whether trial court should have used the word “hustle” in its instructions) (quoting Somer v. Johnson, 704 F.2d 1473, 1477-78 (11th Cir.1983)). Though a district court should be careful when including specific examples in jury instructions, such a use of examples is not inherently questionable. Quite to the contrary, it may be useful when attempting to explain legal issues to jurors to use concrete exam-pies. After all, the Supreme Court has indicated that “[i]n charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence [or] by drawing their attention to the part of it which he thinks important.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). Of course, a reference to the evidence in the case at bar will be a reference to a specific situation.
We are satisfied that the District Court’s instruction did not prejudice Anna’s defense. To start with, as Anna recognizes, it was a correct statement of law. Furthermore, it did not give any suggestion (positive or negative) of the Court’s personal view of the case and it was not confusing or misleading.5 We simply disagree with Anna’s assertion that the instruction might have led jurors to believe that Anna could be guilty of extortion “simply by being Luisa Medrano’s friend” or could be guilty if she assisted Luisa solely by reason of their friendship. In short, Anna does not explain why the instruction might have been misleading, and, instead, simply asserts that it was misleading. We will uphold the District Court on this point.
C. Motion for Judgment of Acquittal on Extortion Charge (Count III)
The Delle Donnas argue that the evidence was insufficient to convict them on the extortion count (Count Three), and thus the District Court erred in denying their Rule 29 motion on that count.6 But *450as we often have indicated a defendant challenging the sufficiency of the evidence bears a heavy burden. See United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992). Furthermore, we will not weigh issues of credibility, for that is the jury’s province. United States v. Inigo, 925 F.2d 641, 649 (3d Cir.1991). Accordingly, if witnesses have given differing accounts of an event, on an appeal from a conviction we accept the account more favorable towards the government and we view all facts in the light most favorable to the government. United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006). Only after viewing the record in this way do we ask, “Was there enough evidence to support the conviction?”
A public official commits extortion under color of official right under 18 U.S.C. § 1951(a) when the official promises to engage in an official act in exchange for a personal gift. Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 1889, 119 L.Ed.2d 57 (1992). Unless the “gift” is a campaign contribution, the quid pro quo between the public official and the gift giver can be implicit. United States v. Antico, 275 F.3d 245, 257 (3d Cir.2001). Consequently, the official does not have specifically to promise anything in return, as long as all parties involved recognize that a gift is being given in exchange for official action. A wink and a nod is good enough.7 Also, the official does not have to promise to perform a specific action in exchange for a specific gift; instead, the official can accept a “stream of benefits” in exchange for one or more official acts as though the official is on a retainer. See United States v. Kemp, 500 F.3d 257, 282 (3d Cir.2007).
The grand jury indicted Delle Donnas for conspiracy to commit extortion under color of official right so the government had the burden at the trial to demonstrate the presence of the elements of a conspiracy. A conspiracy can be formed when two people agree to commit extortion, each co-conspirator has an intent both to conspire and to achieve the aims of the conspiracy, and an overt act is taken in furtherance of the conspiracy’s goals. See, e.g., United States v. Conley, 37 F.3d 970, 976-77 (3d Cir.1994); United States v. Inigo, 925 F.2d 641, 652 (3d Cir.1991).
With these legal principles in mind, we turn to the evidence. Perhaps the most damning evidence against the Delle Don-nas was the nature of the gifts that Luisa gave them. The evidence revealed that Luisa provided the Delle Donnas with a bounty of gifts wholly incompatible with the idea that she gave the gifts out of friendship. For example, a jury surely could believe that gifts of thousands of dollars for gambling in Atlantic City, construction of a garage storage closet, and cosmetic breast surgery are not the type of gifts that friends normally give friends. Moreover, Anna not only received these gifts but actually requested some of them. Duvi testified that Anna knew that the gifts were “business.” Other testimony showed that David was present when certain gifts were exchanged, and he confirmed that he knew about some of the gifts. We agree with the government’s contention that “Luisa provided a stream of cash, gifts, and benefits which would have alerted any recipient that [her] inten*451tions were not simply friendly.” Appel-lees’ br. at 38. We also agree with the District Court which concluded that a reasonable jury could find that the Delle Don-nas knew they were receiving these gifts in exchange for official acts.
Significantly, the Delle Donnas did not receive Luisa’s gifts passively. Anna directly promised to help Luisa and to speak with David about helping Luisa on various matters, as for example, when Luisa wanted a permit to convert a bar into an apartment. David took care of garbage tickets that were issued to Luisa. Though the evidence could not support a finding of an explicit quid pro quo, i.e., gifts in exchange for actions, and though, as we have indicated, the case is unusual as to a degree the gifts went in both directions, we think that a reasonable jury could have found an implicit quid pro quo based on the facts brought forth at trial; therefore, we must affirm.
D. Objection to Sentencing Enhancement for Perjury
David testified, denying much of Luisa’s and Duvi’s testimony as well as the charge that he had failed to report his rental and gift income for tax purposes. After the jury returned a guilty verdict, the District Court found that the jury “necessarily concluded” that David had not testified truthfully because the jury convicted him of wilfully filing a false income tax return, a charge he expressly denied, and because the jury must have rejected his testimony on the extortion charge. On appeal, David argues that the Court effectively penalized him for exercising his constitutional right to defend himself against the government’s allegations, something against which the guidelines specifically warn. See U.S.S.G. § 3C1.1 cmt. 2 (“This provision is not intended to punish a defendant for the exercise of a constitutional right.”).
While it is important to ensure that defendants are not punished for exercising their constitutional right to testify in their own defense, we conclude that David’s sentence was not actually enhanced on account of his testimony. The District Court calculated a higher advisory sentencing guideline range for David by reason of the obstruction of justice than it otherwise would have calculated, but then it imposed a below-guideline sentence on him because it thought that the Delle Donnas should receive the same sentence. The only difference in the calculations to determine David’s advisory guideline sentencing range and Anna’s advisory guideline sentencing range was the enhancement of David’s range by reason of his perjury; therefore, the Court effectively removed the enhancement for perjury from its calculation of David’s sentence though not from his advisory guideline sentence range. Thus, we do not need to determine if the enhancement was warranted as we are confident that David received the same sentence he would have received if the Court had not made the enhancement.8
*452E. Request for Sentence Reduction Based on Sentences Given to Other Public Figures
After a court determines a defendant’s suggested guideline sentence, it considers whether that sentence is justified under the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc). The subsection at issue in this case, subsection 3553(a)(6), states that a sentencing court should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” We will affirm a sentencing court’s decision regarding the section 3553(a) factors “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
The Delle Donnas argue that the District Court did not give “meaningful consideration” to the section 3553(a) factors and, instead, only gave them “lip service.” Appellants’ br. at 59-60. But the record does not support this assertion as it makes clear that the Court considered the evidence the Delle Donnas put forward regarding sentences given to other public figures in New Jersey. The Court found that many of these cases were distinguishable for various reasons; they presented “different facts, different circumstances, and different Guideline ranges.” App. at 3649. Accordingly, the Court refused to reduce the Delle Donnas’ sentences under section 3553(a)(6) because that section only applies to defendants with similar records who have been found guilty of similar conduct. We cannot say that this determination was unreasonable, and we therefore will affirm the sentence.
Y. CONCLUSION
We will affirm the District Court’s orders of March 14, 2008, and April 29, 2008, and the judgments of October 27, 2008. Thus, we are upholding the denial of the severance of Counts Four and Five, the rejection of Anna’s challenge to the jury instructions, the denial of the motion for an acquittal, and the rejection of the section 3553(a) disparity argument.
. The government charged the Delle Donnas with conspiracy to commit extortion by promising to use their public offices in exchange for money and gifts. Inasmuch as both Anna and David were public officials they each could commit the unlawful act, but our review of the record indicates that the government primarily was concerned with the misuse of David's mayoral office, an activity in which Anna is alleged to have conspired.
. Luisa enhanced her income by employing illegal workers and failing to pay certain of her taxes. Many of her workers were smuggled into this country illegally and then were forced to work as prostitutes to pay off their debts for the smugglers' services. In 2003, the government began an investigation into this human trafficking, and eventually a grand jury indicted Luisa on charges which carried a potential sentence of 250 years in prison. During a subsequent interrogation, Luisa informed the federal authorities about the Delle Donnas' alleged misconduct, thereby triggering the investigation that led to this prosecution. After further investigation, the government decided that Luisa was not a primary participant in the human trafficking scheme and dropped many of the most severe charges against her. The government eventually offered Luisa a plea incentive in exchange for her testimony against the Delle Donnas. After the Delle Donnas’ conviction, Luisa was given substantial credit for her cooperation and the court sentenced her to a term of three years of probation and a period of home confinement. Supp. App. 7-8 (government describes Luisa as the “heart of [the] case” against the Delle Donnas). These circumstances make it clear that Luisa had an incentive to testify falsely so as to incriminate the Delle Donnas, but we recognize that the assessment of Luisa’s credibility was a matter left to the jury. See United States v. Haut, 107 F.3d 213, 220 (3d Cir.1997).
. The government also asserts that Luisa gave money and paid for volunteers to benefit David’s re-election campaigns. We do not make further reference to these assertions because the government acknowledges that it does not have evidence of an explicit quid pro quo between the Delle Donnas and Luisa with respect to these payments, and it acknowledges that campaign contributions cannot satisfy a quid pro quo requirement for a criminal conviction arising from the payment and receipt of the contributions unless the agreement was explicit. See McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 1816, 114 L.Ed.2d 307 (1991).
. In the District Court, Anna's attorney stated, “It is not that it is an incorrect proposition of law about dual intent. But to use that pariic-ular example, particularly in light of the arguments made ... I think unduly highlights ... that particular notion.’’ App. at 3406-07.
. Anna suggests that the following instruction would have been more appropriate. "If you find that Mrs. Delle Donna acted out of friendship alone, then she did not act with criminal intent, and you must return a verdict of not guilty on the extortion charge.” Appellants’ reply br. at 14. This instruction makes the same point as the challenged instruction, but phrases the matter in the negative. While Anna might have preferred that the District Court have used her instruction, she has not shown why the Court committed error by using its own version.
. The Delle Donnas did not challenge the sufficiency of the evidence on Counts Four *450and Five in the District Court and do not challenge it here either.
. Of course, it is hard to demonstrate what people are thinking if they do not express themselves. In this case, Duvi testified that Anna knew the gifts were “business.'' Apart from Duvi’s testimony as to Anna's private thoughts, the government argues that a trier of facts can draw an inference that there was an agreement from the nature of the gifts and from the Delle Donnas' actions assisting Luisa.
. We recognize that, in theory, the District Court might have increased Anna's sentence to match the sentence that it imposed on David and thus penalized Anna for David’s obstruction of justice. We are satisfied, however, that this did not happen because the Court sentenced both Delle Donnas at the bottom of Anna's guideline range and thus below the bottom of David's higher range. Plainly, Anna’s sentence anchored David’s sentence.
We also recognize that we have emphasized the separate character of calculations under the United States Sentencing Guidelines and variances under 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d 237 (3d Cir.2006). Our decision to look to the bottom line of the sentencing here is not at odds with that emphasis. Under sentencing framework set out in Gunter, the separate application of the Sentencing Guidelines before consideration of the sentencing factors under section 3553 is necessary to appellate review since, without that *452approach, we are "unable to determine whether the [District] Court denied ... [a departure] motion because if concluded there was no basis to grant it ... or because the Court was exercising its discretion^]” a distinction that bears on our standard of review. United States v. Lofink, 564 F.3d 232, 240 (3d Cir.2009). Here, the essential function of separate treatment has been vindicated by the District Court’s adherence to the Gunter framework, and we are free to observe that, at the end of the sentencing process, David is in the same position he would have been in had there been no decision to impose a Guidelines enhancement. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477744/ | *454OPINION
PER CURIAM.
William E. Hartman appeals from the order of the United States District Court for the District of Delaware dismissing his complaint. For the reasons that follow, we will summarily affirm the District Court’s judgment.
Because the parties are familiar with the facts, and because the District Court’s memorandum opinion recounts the details, we will provide only a brief summary. Hartman is an inmate of the Sussex Correctional Institution (“SCI”) in Georgetown, Delaware. He filed a civil rights complaint under 42 U.S.C. § 1983 in January 2008 and later filed an amendment to the complaint. He alleged that he has a life-threatening heart condition for which he has been prescribed medications, but the medication staff at SCI has caused numerous lapses in his receipt of his medication. Hartman stated that he tried to obtain relief through many grievance filings. However, he asserted that defendant Jill Mosser, a member of SCI medical staff, responded by making a false written statement that resulted in his “keep on person” medications being taken away, with the determination that all of his medications would be administered by a nurse. Hartman contends that the medication lapses continued despite this course of action, causing his health to suffer and causing him fear of suffering another heart attack. He documented his blood pressure readings and the specific days of missed medications. Further, he asserted that he lost his woodshop job due to the effects the medication lapses had on his health, and that he was assigned to a lower-paying kitchen job. As relief, he sought $760,000 in compensatory damages, citing lost wages. He also sought, as injunctive relief, administration of his medication without lapses.
Hartman named as defendants Correctional Medical Services (“CMS”), contract healthcare providers at SCI; Jill Mosser, SCI medical staff member; and two unnamed medication nurses. Also named as defendants were Richard Kearney, Stan Taylor, Michael Deloy, and Carl Danberg. In May 2008, the District Court dismissed defendants Kearney, Taylor, Deloy, and Danberg because the complaint contained no allegations against them. The District Court also noted to the extent that Hartman was attempting to allege section 1983 liability against those defendants based on supervisory positions, the complaint lacked any basis in law or fact. The complaint proceeded against CMS and Mosser,1 who filed a motion to dismiss on the grounds that Hartman failed to file an affidavit of merit as required by 18 Del. C. § 6853(a)(1). Hartman filed a response. On May 5, 2009, the District Court granted the defendants’ motion to dismiss, noting that the only claim against the defendants was for medical negligence and that Hartman failed to comply with section 6853, and also noting that the pending motions, including Hartman’s motion for appointment of counsel, were rendered moot. Hartman appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We may affirm on any basis that is supported by the record. Fairview Township v. EPA, 773 F.2d 517, 525 n. 15 (3d Cir.1985).
First, we consider the claims against defendants Kearney, Taylor, Deloy, and Danberg. We agree with the District Court’s conclusion that Hartman’s *455failure to allege personal involvement on the part of these defendants is fatal to the claims against them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).
Next, although the District Court acknowledged that Hartman’s complaint was brought pursuant to section 1983, the court did not explicitly consider whether Hartman asserted an Eighth Amendment claim that the remaining defendants acted with deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Allegations of medical negligence do not trigger constitutional protections. See id. at 105-06, 97 S.Ct. 285; Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.1993). Deliberate indifference requires a sufficiently culpable state of mind, such as reckless disregard of a substantial risk of serious harm to a prisoner. See Farmer v. Brennan, 511 U.S. 825, 834, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Upon review of the complaint, the amended complaint, and the various other documents Hai'tman submitted to the District Court, it is apparent that Hartman’s claim is not based on any alleged deliberate indifference to his medical condition. Hartman himself referred to his lawsuit in terms of the negligence of the defendants. Even though his allegations reflect his frustrations with repeated occurrences of medication lapses, as well as his disagreement with the manner in which defendant Mosser directed that all of Hartman’s medications be administered by medical staff, we conclude that the allegations do not invoke the Eighth Amendment.
Finally, as for Hartman’s state law claim of medical negligence, we agree with the District Court’s dismissal for failure to include an affidavit of merit signed by an expert witness, as required by 18 Del. C. § 6853(a)(1). Section 6853(a)(1) requires an affidavit of merit to accompany the filing of the complaint, except in certain situations that are not implicated here. See 18 Del. C. § 6853(b), (e). Hartman did not file an affidavit of merit with his complaint. As discussed by the District Court, the provisions of section 6853(a)(2) and (3) allow for a single sixty-day extension of time to file the affidavit of merit, but only if that motion is timely made, that is, “filed on or before the filing date that the plaintiff seeks to extend.” See 18 Del. C. § 6853(a)(2), (3). Hartman did not file a motion for extension of time. Further, as the District Court found, even if Hartman’s response to the defendants’ motion to dismiss were construed as a motion for extension of time, that response was not filed until about one year after he filed his complaint and would not be timely. Thus, we agree with the District Court’s dismissal of the complaint, along with the conclusion that the pending motions were moot.
We add that although the District Court did not provide Hartman an opportunity to amend his complaint, there is no error in this case because amendment would be futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.2002).
Because this appeal presents no “substantial question,” we will summarily affirm the District Court’s decision. See Third Circuit LAR 27.4 and I.O.P. 10.6.
. The record shows that service of the complaint on the unnamed medication nurses was returned as unexecuted. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477679/ | OPINION
PER CURIAM.
Keynan Green, a federal prisoner proceeding pro se, filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), which the District Court granted on September 25, 2008. On September 19, 2009, Green filed a motion to request that the District Court issue a court order for the government to remove separation restrictions. According to Green, separation restrictions were in place that deprived him and his codefen-dants from being classified to a federal institution that was closer to home. On September 29, 2009, the District Court denied Green’s request. On November 30, 2009, Green filed the instant notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 to review the District Court’s September 29, 2009 order for abuse of discretion.1 See United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006). We may summarily affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
*326In its order denying relief, the District Court noted that “the question of whether, and to what extent, separation restrictions should exist [is] within the province of the Government and the Bureau of Prisons.” We agree. Generally, prisoners do not have inherent liberty interests in particular modes, places, or features of confinement, including housing placements. See Hewitt v. Helms, 459 U.S. 460, 466-68, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated by Sandin v. Conner, 515 U.S. 472, 483, 115 S.Ct. 2293,132 L.Ed.2d 418 (1995); see also Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (“Congress has given federal prison officials full discretion to control [prisoner classification and corresponding housing assignments], and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process”); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (no due process protections required upon discretionary transfer of state inmates between prisons). Green has not shown how he is otherwise entitled to relief.
Accordingly, as no substantial question is presented by this appeal, we will summarily affirm.
. To the extent that Green intended to appeal from the order issued on September 25, 2008, his notice of appeal is not timely. See Fed. R.App. P. 4(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477683/ | OPINION
PER CURIAM.
Hyoja Akiko Moore appeals pro se from the District Court’s order remanding this matter to state court. We will dismiss this appeal in part and summarily affirm in part. See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
Tremayne Brown, Roberto Evans and Diane Powers filed suit against Moore in New Jersey state court. Their complaint asserts seven state-law claims arising from Moore’s alleged breach of a partnership agreement concerning the purchase of real property. Moore removed the action to federal court, purportedly under 28 U.S.C. §§ 1441(b) (on the basis of federal question jurisdiction) and 1443. The District Court served Moore with a standing order requiring her to provide certain information regarding the basis for removal, and Moore filed a response. The District Court then remanded this matter to state court by order entered October 7, 2009. The District Court concluded that the state-court complaint did not give rise to a federal question and that Moore had not satisfied the requirements for removal under § 1443. Moore appeals.1
With other exceptions not relevant here, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise” unless the case was removed pursuant to § 1443. 28 U.S.C. § 1447(d); see also Carlsbad Tech., Inc., v. HIF Bio, Inc., — U.S. —,—-—, 129 S.Ct. 1862, 1865-66,173 L.Ed.2d 843 (2009) (interpreting § 1447(d)). Thus, we will dismiss Moore’s appeal to the extent that she challenges the District Court’s conclusion that it lacked subject matter jurisdiction. See Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir.1997). We have jurisdiction, however, to determine whether removal was proper under § 1443. See id. We exercise plenary review over that legal issue, see Lazorko v. Pennsylvania Hosp., 237 F.3d 242, *329247 (3d Cir.2000), and conclude that the District Court properly remanded this matter to state court.
Moore purported to remove this action under both subsections of § 1443, but only her invocation of the first subsection requires extended discussion.2 Section 1443(1) authorizes the removal of a state law action “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1). For this provision to apply, “a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law ‘providing for ... equal civil rights’; and (2) that he is ‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047 (quoting Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)). Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law “ ‘providing for specific civil rights stated in terms of racial equality.’ ” Id. (citation omitted). The second requirement is met when a defendant’s federal civil rights would “ ‘inevitably be denied by the very act’ of being brought to trial in state court.” Id. at 1050 (citation omitted).
The District Court properly determined that these requirements are not satisfied here. Moore asserts that removal is proper because the judge presiding over the state court action has (1) made unspecified biased and prejudicial rulings, (2) failed to follow unspecified prior precedent, (3) failed to “honor” an order entered in an unspecified prior action, and (4) relied on falsified or forged documents submitted by the plaintiffs. (Notice of Removal at 1.) We express no opinion on the merits of these allegations, but they do not state grounds for removal under § 1443 even if they are true. See Davis, 107 F.3d at 1048 (“ ‘It is not enough to support removal under § 1443(1) to allege or show ... that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court.’ ”) (citation omitted). Moore has not identified any right conferred on her by a federal statute concerning racial equality that inevitably will be violated by the litigation of this matter in state court, and there does not appear to be any. To the contrary, as the District Court concluded, she has alleged nothing that cannot be redressed if appropriate within the state court system itself.
Accordingly, we will dismiss this appeal in part and affirm the District Court’s ruling that removal was not proper under § 1443.
. The District Court’s order also denied as moot a motion for an injunction that Moore filed seeking immediate possession of the property at issue. It entered another order on October 8, 2009, cancelling a previously scheduled conference in light of the remand. Moore has appealed from the October 8 order as well, but the District Court's cancellation of the conference, as well as its denial of Moore's motion for an injunction, clearly were proper in light of its remand and do not require separate discussion.
. "[T]he second subsection of [§ ] 1443 confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights.” City of Greenwood v. Peacock, 384 U.S. 808, 824, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). Moore has not alleged anything that might permit removal under this subsection. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477685/ | *331OPINION OF THE COURT
HARDIMAN, Circuit Judge.
Steven Monaco appeals a judgment of the District Court denying his motion for a new trial and his second motion to amend complaint. Largely for the reasons explained by the District Court and Magistrate Judge in their cogent opinions, we will affirm.
I.
Because we write for the parties, who are familiar with the facts and procedural history, we recount only those aspects of the case that are essential to our decision.
On May 31, 2002, Monaco was tailgating in the parking lot near the Tweeter Center in Camden, New Jersey prior to a concert when a fight broke out. Monaco alleged that during law enforcement’s response to that fight, he was assaulted by Camden police officers who mistook him for a combatant. According to Monaco, he was taken to the police station where he was questioned by another officer, Shay Sampson, who coerced him into confessing to a public drinking violation.
On May 25, 2004, one week before the expiration of the two-year statute of limitations, Monaco filed suit in the District Court, alleging constitutional and state law claims against the City of Camden, the Camden Police Department, and unnamed John Does. Monaco added Officer Sampson as a Defendant in his first amended complaint.
The case went to trial in June 2008 with the jury finding in Monaco’s favor. The victory was Pyrrhic, however, because although the jury found “that one or more Camden Police Officers deprived [Monaco] of the right to be free from excessive force” and “the right to be free from unlawful arrest,” it also found that Monaco did not prove that the City of Camden had an official custom of deliberate indifference that caused the constitutional violations. Furthermore, the jury found that Monaco did not “prove that Defendant Sampson is liable for malicious prosecution.” Monaco filed a motion for new trial, which the District Court denied.
In this appeal, Monaco challenges both the denial of his motion for new trial as well as the denial of his second motion to amend complaint. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
II.
A.
Monaco contends that the jury’s finding that the police lacked probable cause to arrest him is inconsistent as a matter of law with its finding that Officer Sampson is not liable for malicious prosecution because lack of probable cause is an element of a malicious prosecution claim.
We review the District Court’s denial of a motion for new trial for abuse of discretion. Thabault v. Chait, 541 F.3d 512, 532 (3d Cir.2008) (citation omitted). A district court may grant a motion for new trial “after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R.Civ.P. 59(a)(1)(A). Inconsistent general verdicts may constitute grounds for ordering a new trial. Mosley v. Wilson, 102 F.3d 85, 91 (3d Cir.1996). However, a court may order a new trial based on inconsistent verdicts only if “no rational jury could have brought back the verdicts that were returned.” Pearson v. Welbom, 471 F.3d 732 (7th Cir.2006) (internal quotations and citations omitted). Accordingly, when one party challenges a jury’s verdicts as inconsistent, the court has an obligation first to “attempt to reconcile the jury’s findings” to determine “whether the jury could have, consistent with its instructions, rendered the challenged verdicts.” Davignon v. Hodgson, 524 F.3d 91, 109 *332(1st Cir.2008) (citations omitted); see Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) (“[I]t is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: ‘Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.’ ”) (quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962)). In undertaking to read the verdicts consistently, the court must “view the facts in the light most favorable to the verdict.” Davignon, 524 F.3d at 109.
Applying these standards to this appeal, we have little difficulty finding that the jury’s verdicts regarding unlawful arrest and malicious prosecution were not inconsistent. Monaco is correct that lack of probable cause is an element of both an unlawful arrest claim and a malicious prosecution claim. See, e.g., Paff v. Kaltenbach, 204 F.3d 425, 435 (3d Cir.2000) (unlawful arrest); Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 972 A.2d 1112, 1119 (2009) (malicious prosecution). Nevertheless, the jury’s finding that the officers who took custody of Monaco at the Tweeter Center lacked probable cause to arrest does not preclude a finding that Officer Sampson was not liable for malicious prosecution. See Pearson, 471 F.3d at 739 (verdicts finding two of five defendants liable for retaliation were not inconsistent where jury could have believed that two defendants’ actions constituted retaliation while simultaneously finding that other defendants were not involved in retaliatory act). As explained by the District Court, when the facts are viewed in the light most favorable to the verdicts, there are at least two explanations that would render these jury verdicts consistent.
First, the jury could have found that even though the officers who took Monaco into custody at the Tweeter Center lacked probable cause to arrest, Officer Sampson did have probable cause to believe Monaco had been drinking in public at the time Sampson issued the citation. The jury could have credited Sampson’s testimony that he had not been present during Monaco’s arrest and that Sampson first encountered Monaco at the police station. Monaco, Sampson, and Monaco’s then-girlfriend, Nicole Doran-Pangborne, all testified that Monaco told Sampson that he had consumed an alcoholic beverage before the concert. Doran-Pangborne also testified that Monaco had been drinking alcohol at the parking lot.1 Monaco contends that a finding of probable cause could not be based upon his confession because it was coerced.2 But the evidence regarding coercion at trial was disputed: Monaco’s *333allegation versus Sampson’s denial. The jury was entitled to disbelieve Monaco’s allegations of coercion, and credit Sampson’s testimony that Monaco confessed freely in response to Sampson’s questions.
Based on Monaco’s admission to Sampson that he had consumed alcohol while tailgating before the concert, the jury reasonably could have found that Sampson had probable cause to believe Monaco had been drinking in public when he issued the citation. This is certainly a “minimally plausible view of the case” which renders the jury’s false arrest and malicious prosecution verdicts consistent. See McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 764 (3d Cir.1990).
A second explanation plausibly reconciles the jury’s verdicts. In addition to a lack of probable cause, liability for malicious prosecution requires a showing of malice. See Brunson, 972 A.2d at 1119-20. The jury here could have found that Monaco failed to prove that Officer Sampson acted maliciously, i.e., “without just cause or excuse.” Id. at 1120. The jury was free to disbelieve Monaco’s testimony that Sampson threatened him into making a false confession, credit Sampson’s testimony that he did not threaten Monaco, and conclude that Monaco failed to establish the malice element of his claim. Viewing the testimony before the jury in the light most favorable to the verdicts, we cannot conclude that “no rational jury could have brought back the verdicts that were returned.” Pearson, 471 F.3d at 739.
B.
The remainder of the issues Monaco raises concern the denial of his second motion to amend complaint. Because we find that Monaco’s second motion to amend was untimely and therefore futile, we do not specifically address his allegations of error in the District Court’s denials of his appeal from the Magistrate Judge’s order and his motion to reconsider that denial.
Leave to amend pleadings “shall be freely given when justice so requires.” Fed. R.CivJP. 15(a). As articulated by the Supreme Court:
In the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.the leave sought should, as the rules require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Because Monaco sought to amend his complaint for a second time approximately two years after the statute of limitations expired, his motion is futile unless it relates back to the date of the original complaint.3 See Fed. *334R.Civ.P. 15(c)(1). Whether Monaco’s amendment relates back to the original pleading is determined by the law that provides the applicable statute of limitations, see id., in this case, New Jersey. Two New Jersey rules are relevant to Monaco’s motion, N.J. Court Rules 4:26-4 and 4:9-3, but Monaco failed to satisfy the requirements of either rule.
Rule 4:26-4, New Jersey’s fictitious party rule, permits a plaintiff to sue a defendant under a fictitious name when the defendant’s true name is unknown. The plaintiff may use the fictitious party rule to add defendants after the expiration of the statute of limitations “only if the plaintiff exercised due diligence to ascertain defendant’s true name before and after filing the complaint.” DeRienzo v. Harvard. Indus., Inc., 357 F.3d 348, 353 (3d Cir.2004) (citation omitted) (emphasis added). “In the context of N.J.R. 4:26-4, plaintiffs must ‘investigate all potentially responsible parties in a timely manner’ to cross the threshold for due diligence.” Id. at 354 (quoting Matynska v. Fried, 175 N.J. 51, 811 A.2d 456, 457 (2002)).
Monaco has not presented adequate evidence of efforts taken before the expiration of the statute of limitations to satisfy the diligence requirement. Monaco alleges that his efforts were thwarted because, in response to the discovery requests he made in defending the public drinking charges in municipal court, the City stated that it was “unable to locate any report” relevant to the charge. Monaco fails to show why the City’s inability to locate any reports prevented him or his eyewitnesses from reviewing the police photo book to identify potential defendants during the two years before he filed suit. The City’s inability to locate a report at that time, while troubling, does not excuse Monaco from his diligence obligations. Accordingly, he cannot avail himself of Rule 4:26-4 to avoid the statute of limitations bar to his second motion to amend.4
Rule 4:9-3, New Jersey’s general relation back rule, provides that an amendment changing the party against whom a claim is asserted relates back to the date of the original complaint if: (1) it arose out of the same transaction or occurrence set forth in the original pleading; (2) the proposed defendant received notice of the institution of the action within the limitations period such that the party will not be prejudiced in maintaining a defense; and (3) the proposed defendant knew or should have known that, but for the misidentification of the proper party, the action would have been brought against him or her. Arroyo v. Pleasant Garden Apartments, 14 F.Supp.2d 696, 701 (D.N.J.1998) (citing Viviano v. CBS, Inc., 101 N.J. 538, 503 A.2d 296, 304 (1986)). In this case, Monaco has not met his burden with respect to the second or third prongs of the test.
Monaco argues that the proposed defendants had notice of the lawsuit and knowledge that they were potential defendants because: (1) in an interview with the media shortly after the incident, a member of the Camden Police Department stated that the incident would be investigated internally, (2) the proposed defendants are Camden Police officers and the City of Camden was named a defendant in the original complaint, and (3) in their answer to the amended complaint, the City acknowledged that there was another lawsuit *335pending regarding the May 31, 2002 incident. We disagree for several reasons.
First, the media statement regarding an internal investigation could not have notified the proposed defendants of Monaco’s lawsuit since it was made almost two years prior to the initiation of the lawsuit. Additionally, the investigation itself was not conducted by the Camden City Police Department until February of 2005, over seven months after the expiration of the statute of limitations; therefore, the investigation could not have put the proposed defendants on notice of the lawsuit before the expiration of the limitations period.
Second, while in some circumstances, the “identity of interest” method permits imputing notice of an action to an unnamed party, see Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186, 198 (3d Cir.2001), Monaco has not shown that the proposed defendants and the City of Camden share such an identity of interest. See Otchy v. City of Elizabeth Bd. of Educ., 325 N.J.Super. 98, 737 A.2d 1151, 1157 (N.J.Super.A.D.1999). Also, Monaco filed his original lawsuit only six days before the statute of limitations expired and did not serve the City until June 14, 2004; therefore, we cannot conclude that the City would have had time to identify and notify the proposed defendants of the action before the statute of limitations ran. See Love v. Rancocas Hosp., 270 F.Supp.2d 576, 581 (D.N.J.2003) (holding that where employer and some employees were served just days before limitations period expired, they did not have sufficient time to determine that named employees were identified incorrectly and notify correct employee of the action).
Finally, the mere existence of a related lawsuit was insufficient to put the proposed defendants on notice of Monaco’s lawsuit, or that they might be defendants in the ease. Even if additional lawsuits over the May 31, 2002 incident alerted the proposed defendants to the existence of potential claims, it would not have alerted them to the institution of Monaco’s lawsuit. See Otchy, 737 A.2d at 1156 (“The rule expressly requires ‘notice of the institution of the action’ not just of a claim. The purpose of that notice provision in the rule is to assure that the added party will not be prejudiced by having to defend a stale claim.”). Therefore, Monaco has not satisfied the requirements for relation-back under Rule 4:9-3.
III.
For the foregoing reasons, we conclude that the verdicts were not inconsistent and that Monaco’s second motion to amend complaint was untimely and properly denied as futile. Accordingly, we will affirm the judgment of the District Court.
. The inconsistency of the testimony regarding which alcoholic beverage Monaco was drinking — Monaco and Sampson testified he confessed to drinking a Coors Light while Doran-Pangborne said it was a Mike's Hard Lemonade — is immaterial because either beverage could subject him to the charge of public drinking.
. Monaco argues that the evidence of his confession should have been excluded as "fruit of the poisonous tree,” because it was obtained subsequent to his illegal arrest. This argument is without merit as it confuses the principles of civil and criminal proceedings. The fruit of the poisonous tree doctrine cannot be invoked to support a civil claim for damages because "the doctrine is an evidentiary rule that operates in the context of criminal procedure and has generally been held to apply only in criminal trials.” Jenkins v. City of New York, 478 F.3d 76, 91 n. 16 (2d Cir.2007) (internal quotation and citations omitted); United States v. Calandra, 414 U.S. 338 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (instructing that "standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search”).
. Monaco argues that the City should be es-topped from asserting the statute of limitations because it did not oppose his first motion to amend, which also was filed after the statute of limitations expired. We reject this argument as the City’s assertion of the statute of limitations in opposition to the second motion to amend is not inconsistent with its failure to object to the first motion to amend, and because it would not have been reasonable for Monaco to delay filing his second motion to amend in reliance on the failure to object. See generally Knorr v. Smeal, 178 N.J. 169, 836 A.2d 794, 799 (2003) ("The doctrine [of equitable estoppel] is designed to prevent injustice by not permitting a party to repudiate a course of action on which another party has relied to his detriment.’’). Furthermore, we note that after Monaco filed his first amended complaint in March 2005, all of the newly added defendants — save Officer Sampson — successfully moved for summary judgment on the ground that the claims were barred by the statute of limitations. Monaco did not appeal that ruling.
. Monaco’s argument that he could not return to the police station to review the photo book prior to the running of the two-year statute of limitations because of the intimidation he suffered on May 31, 2002 is not persuasive. Monaco cites no authority for this proposition, and even if he were fearful of the Camden police, there is no reason Monaco and his lawyer could not have arranged to review the photo book at another location. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477691/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Mark Jackson (“Jackson”) appeals from several orders of the United States District Court for the Eastern District of Pennsylvania imposing Rule 11 sanctions; denying his motion to disqualify the main defendant’s counsel; dismissing -with prejudice claims as a sanction; denying his motion for a preliminary injunction; and denying his motion to vacate the reference to Magistrate Judge M. Faith Angelí. For the reasons stated herein, we will affirm.
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.
This case’s lengthy history begins in state court. In 1999, Jackson filed an invasion of privacy suit against his employer, Rohm and Haas Company (“Rohm and Haas”), in the Pennsylvania Court of Common Pleas of Philadelphia County. The ultimate outcome was not favorable to Jackson: although the jury awarded Jackson $150,000 in damages, the trial court granted Rohm and Haas’ motion for judgment notwithstanding the verdict based on its determination that the Pennsylvania Workers’ Compensation Act barred Jackson’s privacy claim.
On September 19, 2003, shortly after the Pennsylvania Superior Court affirmed the trial court’s decision, Jackson filed suit against Rohm and Haas and its attorneys *345in federal court, asserting violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and related common law claims based on the defendants’ alleged misconduct during the state court proceedings (“Jackson I”). Finding that Jackson lacked standing to bring the RICO claim, the District Court dismissed the complaint on June 30, 2005.
On September 19, 2005, Jackson filed a second complaint (“Jackson II”) against a longer list of defendants, including Har-kins Cunningham LLP (“Harkins”), the law firm that represented Rohm and Haas in Jackson I, and Liberty Life Assurance Company of Boston (“Liberty Life”), which allegedly suspended Jackson’s disability benefits during his state and federal litigation in order to harass and intimidate him. The defendants responded with a Rule 11 motion for sanctions. On March 9, 2006, 2006 WL 680933, the District Court determined that the Jackson II complaint was “unwarranted and frivolous within the meaning of Rule 11(b)(2)” and sanctioned Jackson in the amount of two-thirds of the expenses and attorney’s fees reasonably incurred by the defendants in preparing the Rule 11 motion and related motions to dismiss. (App. at 123, 132.) Magistrate Judge Angelí calculated the amount to be $81,710.99, and the District Court adopted the sum.
Jackson proceeded to file a third federal complaint (“ Jackson II”), and, on April 21, 2008, the District Court referred the protracted litigation to Judge Angelí.1 Judge Angelí required the represented parties to attend, with counsel, a hearing held on May 22, 2008. At the hearing, Judge An-gelí expressed concerns regarding Jackson’s counsel’s litigation tactics and ordered Jackson to consolidate his second and third federal lawsuits into a single Consolidated Amended Complaint (“CAC”) that would allege only those claims for which Jackson had a good faith basis. Although Judge Angelí did not put a page limit on the CAC, she did caution, “I would hesitate if I saw a consolidated document that was a hundred pages or more.” (Id. at 1240.)
On June 11, 2008, Jackson filed the CAC — it was 152 pages long and asserted 25 counts against 51 defendants, 25 of whom were “John Does.” The defendants filed a motion to dismiss the CAC with prejudice, and Judge Angelí issued an R & R recommending that the motion be granted. Judge Angelí found that the CAC’s length, its failure to make allegations against specific defendants, and its “inflammatory and unwarranted conclusory allegations” violated Federal Rule of Civil Procedure 8 and, by thwarting her prior orders, also Rule 41(b). (Id. at 135.) Applying our decision in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.1984), Judge Angelí concluded that at least five of the six Poulis factors weighed in favor of dismissal: (1) Jackson’s presence at the May 22, 2008 hearing made him personally responsible for the CAC (App. at 146); (2) the defendants were prejudiced by having to answer ten complaints with claims that were frivolous and broad in scope (id. at 147); (3) Jackson’s “pattern of continued failure to file a proper complaint” created a history of dilatoriness (id. at 148-49); (4) Jackson’s refusal to file a proper CAC as directed “can only be viewed as willful or in bad faith” (id. at 149); and (5) “no alternative sanctions ... will be effective” in light of the fact that the previous $80,000 fine was unsuccessful (id.). On March 19, 2009, 2009 WL 773936, the District Court *346adopted only part of the R & R: the Court dismissed with prejudice 21 of the 25 claims in the CAC but, applying the sixth Poulis factor, allowed those few claims that the Court viewed as having colorable merit. (Id. at 73-74.)
Finally, Jackson filed three additional motions in the District Court that are relevant to this appeal. First, prior to filing the CAC, Jackson filed a motion to disqualify Harkins. Judge Angelí denied the motion, and the District Court confirmed the denial on March 20, 2009, 2009 WL 948741. Second, after filing the CAC, Jackson filed a motion for a preliminary injunction to enjoin both the merger between Rohm and Haas and The Dow Chemical Company, and the acquisition of Liberty Life by Safeco Insurance Company. The District Court adopted Judge Angell’s R & R and denied Jackson’s motion on March 20, 2009. Lastly, Jackson filed a motion to vacate the reference to Judge Angelí pursuant to 28 U.S.C. § 636(c)(4), alleging bias. On March 19, 2009, the District Court denied the motion: “[T]he record demonstrates not that Judge Angelí has failed to conduct the extended and elaborate proceedings capably, but, rather, that the plaintiff, through his counsel, has handled his role in the proceedings in a continuously counterproductive manner. Judge Angelí has fulfilled her responsibilities impeccably.” (Id. at 69.)
II.
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s imposition of Rule 11 sanctions for abuse of discretion. Rogal v. Am. Broad. Cos., Inc., 74 F.3d 40, 44 (3d Cir.1996). The same standard applies to the District Court’s dismissal of a claim as a sanction, see Poulis, 747 F.2d at 868,2 and the District Court’s denial of a motion to vacate pursuant to § 636(c)(4), see Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir.2004). We review the District Court’s denial of a motion to disqualify an attorney for abuse of discretion unless we are asked to determine whether a disciplinary rule prohibits certain professional conduct, in which case review is plenary. United States v. Miller, 624 F.2d 1198, 1201 (3d Cir.1980). Finally, “we use a three-part standard to review a District Court’s decision to grant or deny a preliminary injunction.” Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir.2006). “The District Court’s findings of fact are reviewed for clear error, the District Court’s conclusions of law are evaluated under a plenary standard, and the ultimate decision to grant the preliminary injunction is reviewed for abuse of discretion.” Id.
III.
Jackson challenges all of the above-mentioned orders by the District Court. Jackson argues that the District Court abused its discretion in granting the defendants’ motion for Rule 11 sanctions; erred in denying Jackson’s motion to disqualify Harkins; abused its discretion in dismissing with prejudice 21 of the 25 claims raised in the CAC; erred in denying Jackson’s motion for a preliminary injunction; and abused its discretion in denying Jackson’s motion to vacate the reference to Judge Angelí. We will address these contentions in turn, in approximate chronological order.
A.
The District Court levied Rule 11 sanctions against Jackson in the amount of *347$81,710.99 after determining that “Jackson’s claims in his original Jackson II complaint are predominantly without warrant and frivolous.” (App. at 130.) On appeal, Jackson argues that the District Court should not have sanctioned his counsel and that, even if sanctions were appropriate, the amount awarded was excessive.
By filing a complaint, an attorney certifies that, to the best of his or her “knowledge, information, and belief,” “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfriv-olous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed.R.Civ.P. 11(b)(2). If it appears that an attorney has violated this rule, opposing counsel may file a motion for sanctions and, “[i]f warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.” Fed. R.Civ.P. 11(c)(2). We have held that a “district court’s choice of deterrent is appropriate when it is the minimum that will serve to adequately deter the undesirable behavior” and that district courts should consider “whether the attorney has a history of this sort of behavior, the defendant’s need for compensation, the degree of frivolousness, and the ‘willfulness’ of the violation.” Zuk v. E. Pa. Psychiatric Inst. of the Med. Coll, of Pa., 103 F.3d 294, 301 (3d Cir.1996) (emphasis in original) (quotations and citations omitted).
The Jackson II claims brought pursuant to RICO and 42 U.S.C. § 1985 were completely without merit, and Jackson’s brief provides no sound arguments to the contrary. Accordingly, we find that the District Court did not abuse its discretion in imposing Rule 11 sanctions. In light of the frivolousness of these claims and the defendants having incurred expenses in defending against them, we also find that the District Court acted reasonably in sanctioning Jackson’s counsel in the amount of two-thirds of the defendants’ expenses. See Zuk, 103 F.3d at 301.
B.
The District Court also denied Jackson’s motion to disqualify Harkins, Rohm and Haas’ counsel. In challenging this order, Jackson cites alleged conflicts of interest between the defendants represented; a “pattern of obstructive conduct;” “the improper assertion of attorney-client privilege;” and “disciplinary violations.” (Appellants’ Br. at 91.)
We have held that a court may disqualify an attorney only when “disqualification is an appropriate means of enforcing the applicable disciplinary rule[,]” keeping in mind “any countervailing policies, such as permitting a litigant to retain the counsel of his choice and enabling attorneys to practice without excessive restrictions.” Miller, 624 F.2d at 1201. Here, Jackson’s conclusory allegations, which are not backed by evidence, do not warrant the extreme remedy of attorney disqualification. Therefore, we find that the District Court did not err in denying Jackson’s motion to disqualify Harkins from this case.
C.
Perhaps most critical to this appeal, Jackson contends that the District Court erred in dismissing 21 of the 25 claims in the CAC. Jackson’s argument is three-fold. First, Jackson asserts that the District Court failed to make “an independent assessment of the record based upon plaintiff’s objections to the R & R” (Appellants’ Br. at 15), as required by Federal Rule of Civil Procedure 72(b), which states, “The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). See also 28 U.S.C. § 636(b)(1). There is no support *348for this contention in the record: the District Court not only issued its own opinion (App. at 70-74), but explicitly stated in its order that it reviewed both the R & R and the parties’ responses (id. at 75.). Having reviewed the R & R, the District Court was permitted to adopt the R & R in part. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”). Therefore, we do not find that the District Court failed to make an independent assessment of the record.
Second, Jackson contends that Magistrate Judge Angelí and the District Court erred in the Poulis analysis. Under Poulis, we determine whether the District Court abused its discretion in using dismissal as a sanction by examining the following factors: “(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dila-toriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.” 747 F.2d at 868. “[N]ot all of the Poulis factors need be satisfied in order to dismiss a complaint.” Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992). Rather, “the decision to dismiss constitutes an exercise of the district court judge’s discretion and must be given great deference by this Court-a court which has had no direct contact with the litigants and whose orders, calendar, docket and authority have not been violated or disrupted.” Id.
We do not find that the District Court abused its discretion in its dismissal of the 21 CAC claims: (1) Jackson bore personal responsibility for the CAC after the May 20, 2008 hearing; (2)-(3) Jackson’s repeated filing of improper complaints with frivolous claims prejudiced the defendants and illustrates a history of dilatoriness; (4) Jackson’s refusal to abide by Judge An-gell’s last instructions regarding the CAC indicates that his counsel’s conduct was willful or in bad faith; (5) the continuation of improper conduct after the imposition of the $80,000 fine demonstrates that any sanction other than dismissal would have likely been ineffective; and (6) Jackson’s ERISA and RICO claims were without merit. Jackson’s litany of arguments to the contrary are simply not convincing.3
Finally, Jackson argues that he was entitled to notice and a hearing pursuant to Dunbar v. Triangle Lumber & Supply Co., 816 F.2d 126, 129 (3d Cir.1987). We have held that “[w]here a client had or should have had independent knowledge of the delinquency that was the grounds for dismissal, ... notice and hearing are not required.” Adams v. Trs. of N.J. Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 872 (3d Cir.1994). Here, the May 20, 2008 hearing was sufficient to put Jackson personally on notice.
In summary, we find that the District Court did not err in dismissing 21 of the 25 claims in the CAC.
D.
Jackson also argues that the District Court erred in denying his motion for a *349preliminary injunction to enjoin the merger involving Rohm and Haas, and the acquisition involving Liberty Life, based on the defendants’ alleged failure to disclose the three Jackson cases to the Securities and Exchange Commission. We will dismiss this claim as moot. We have stated that “a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Donovan ex rel. Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir.2003) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)) (quotations and alteration omitted). Here, the claims underlying the preliminary injunction have been dismissed with prejudice. See Section C, supra. Moreover, the merger and acquisition have already occurred. See Scattergood v. Perelman, 945 F.2d 618, 621 (3d Cir.1991) (“The merger has taken place, and this court has held on numerous occasions that when the event sought to be enjoined in a preliminary injunction has occurred, an appeal from the order denying the preliminary injunction is moot.”).
E.
Finally, Jackson challenges the District Court’s refusal to vacate the reference to Judge Angelí. Jackson argues that Judge Angelí “demonstrated a severe bias in favor of defendants and against plaintiff;” failed to follow proper procedure; and “engaged in a course of conduct ... which appeared to facilitate [Rohm and Haas] and Liberty [Life] in completing their respective transactions.” (Appellants’ Br. at 71.)
“The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge[J” 28 U.S.C. § 636(c)(4). Here, we see nothing warranting a finding of “extraordinary circumstances.” See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir.1990) (“Disagreement with a judge’s determinations certainly cannot be equated with the showing required to so reflect on his impartiality as to dictate recusal.”). See also United States v. Wecht, 484 F.3d 194, 217 (3d Cir.2007) (holding that district courts have wide discretion in the management of their cases). If anything, Judge Angelí demonstrated the utmost patience with Jackson in light of his counsel’s intractable conduct.
IV.
For the foregoing reasons, we will affirm the orders of the District Court.
. Prior to the referral, Jackson filed multiple amended complaints, and the defendants responded with multiple motions to dismiss.
. Likewise, we review the District Court's dismissal of a claim pursuant to Federal Rules of Civil Procedure 41(b) and 8 for abuse of discretion. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.2002); In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir.1996).
. For example, Jackson contends that the first Poulis factor requires more than his requested presence at hearings, but he sets forth no case law in support of this proposition. Jackson also argues that Judge Angelí improperly considered counsel's behavior during all three federal cases, even though the cases were related, partly consolidated, and against the same defendants. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477695/ | OPINION OF THE COURT
PADOVA, Senior District Judge.
Appellants Daniel Todd Slinger, Joanne Slinger, and Gregory Slinger brought this action against Michael Rubinaccio, Joseph Devine, and Michael J. Rogers (collectively “Appellees”) for false arrest, wrongful incarceration, wrongful entry into the Sling-ers’ home, and negligence pursuant to 42 U.S.C. § 1983 and state law. They appeal from an order of the United States District Court for the District of New Jersey dismissing their claims against Appellees pursuant to Federal Rule of Civil Procedure 12(b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. For the following reasons, we will reverse.
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 the facts alleged in the Complaint that are necessary to our analysis. The Slingers are residents of Rox-bury Township, Morris County, New Jersey. At all relevant times, Rubinaccio was the Prosecutor of Morris County, Devine was the Chief of Detectives in the Morris County Prosecutor’s Office, and Rogers was employed by the Morris County Prosecutor’s Office as a Sergeant.
Daniel Slinger lived with his mother, Joanne Slinger, and his brother, Gregory Slinger. Sometime between 6:00 a.m. and 7:30 a.m. on November 19, 2005, law enforcement personnel entered the Slinger residence and arrested Daniel Slinger pursuant to a warrant issued by a judge of the New Jersey Superior Court on November 18, 2005. Daniel Slinger was then transported to the Morris County Correctional Facility where he was held until his moth*359er posted bail for him later that day. Daniel Slinger’s arrest allegedly resulted from a negligent investigation in which he was misidentified as a participant in criminal activity. Rogers was the complainant on the warrant. The charges against Daniel Slinger were administratively dismissed on December 14, 2005.
The Complaint asserts claims against the State of New Jersey, the County of Morris, the Morris County Prosecutor’s Office, Appellees, and John Does 1-20. The claims against Appellees are brought against those individuals in both their official and individual capacities. The Complaint asserts claims against all Defendants for negligence pursuant to New Jersey common law; false arrest and false imprisonment pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983; wrongful and war-rantless entry into a residence pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983; and negligent and careless training and supervision pursuant to New Jersey common law, N.J. Stat. Ann. § 10:6-2, and 42 U.S.C. § 1983.
Motions to Dismiss were filed by the State of New Jersey, the County of Morris, and collectively by the Morris County Prosecutor’s Office and Appellees. The District Court granted all three Motions. See Slinger v. New Jersey, Civ. A. No. 07-5561, 2008 WL 4126181, at *1 (D.N.J. Sept. 4, 2008). The District Court dismissed the claims against all Defendants, except for the County of Morris, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), on the ground that these Defendants were immune from suit pursuant to the Eleventh Amendment. The District Court dismissed the Slingers’ claims against the County of Morris for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Slingers moved for reconsideration of the District Court’s order granting the Motions to Dismiss. App. at 217a-224a. The District Court denied that Motion. See Slinger v. New Jersey, Civ. A. No. 07-5561, 2008 WL 5416402 (D.N.J. Dec. 22, 2008). The Sling-ers do not presently challenge the dismissal of their claims against the State of New Jersey, the County of Morris, or the Morris County Prosecutor’s Office.
II.
The Slingers ask us to find that the District Court erred in dismissing the claims they asserted against Appellees in their individual capacities. Our standard of review of the District Court’s dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(1) is plenary. Solis v. Local 234, Transp. Workers Union, 585 F.3d 172, 176 (3d Cir.2009) (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000) and Reich v. Local 30, Int'l Bhd. of Teamsters, 6 F.3d 978, 981-82 (3d Cir.1993)).
Appellees asserted a facial challenge to subject matter jurisdiction. A facial attack on subject matter jurisdiction contests “the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true.” Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002) (citation omitted). Consequently, “ ‘[i]n an appeal from a grant of a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we review only whether the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court.’” Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009) (quoting Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006)).
*360III.
The District Court based its dismissal of the Slingers’ claims against Appellees on the Eleventh Amendment. “The Eleventh Amendment to the United States Constitution protects an unconsenting state or state agency from a suit brought in federal court, regardless of the relief sought.” Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir.2009) (citing MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir.2001)). Eleventh Amendment immunity also applies to a county agency if the state is the real party-in-interest. Chisolm v. McManimon, 275 F.3d 315, 322 (3d Cir.2001) (citing Ford Motor Co. v. Dep’t of Treasury of Ind., 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). This immunity further extends to employees of that agency sued in their official capacities. See Capogrosso, 588 F.3d at 185 (citing Hirsh v. Justices of Supreme Court of Cal., 67 F.3d 708, 715 (9th Cir.1995)). The Slingers do not challenge the District Court’s determination that Appellees are entitled to Eleventh Amendment immunity in their official capacities.
The District Court, however, also determined that Appellees are entitled to Eleventh Amendment immunity when sued in their individual capacities because the claims against them arose from their performance of their official law enforcement duties:
Despite Plaintiffs having pled that the Prosecutor Defendants are being sued in both their individual and official capacities, all of the actions which form the basis of the Complaint were taken by Prosecutor Defendants in their official capacities. There are no facts alleged in the Complaint that suggest that the Prosecutor Defendants acted outside of their official capacity. The Complaint only makes allegations as to Prosecutor Defendants’ conduct in investigating and arresting Daniel. Assuming Rubinaccio participated in the execution of a lawfully obtained arrest warrant at Plaintiffs’ home, such action was an execution of his prosecutorial duties. Similarly, any actions taken by Devine and Rogers, such as swearing to the arrest warrant, were thereby taken in their official capacities as an active part of the investigation they were conducting. Therefore, violations by Prosecutor Defendants, if any, “arose out of the execution of their sworn duties to enforce the law using all the tools lawfully available to them to combat crime.” Hyatt v. County of Passaic, [Civ. A. No. 04-1545, 2008 WL 839556, at *11 (D.N.J. Mar. 24, 2008) ]. Accordingly, all such conduct is properly considered “official.” Therefore, the Complaint against Prosecutor Defendants is dismissed because it is a suit against them in their official capacities as State employees.
Slinger, 2008 WL 4126181, at *10.
The Slingers contend that this determination was erroneous. They are correct. The Supreme Court held in Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), that the Eleventh Amendment does not bar suits brought against state officials in their individual capacities, even if the actions which are the subject of the suit were part of their official duties: “We hold that state officials, sued in their individual capacities, are ‘persons’ within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the ‘official’ nature of their acts.” Id. at 31, 112 S.Ct. 358. See also Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (“[SJince Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been *361settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.”). We conclude, accordingly, that the District Court erred in dismissing the claims brought by the Slingers against Ap-pellees in their individual capacities for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).
Appellees argue that we should affirm the decision of the District Court notwithstanding any error, because the Slingers waived this claim, either through the invited error doctrine or by failing to preserve their claim of error before the District Court. The invited error doctrine “prohibits a defendant from seeking appellate review of alleged errors invited or induced by himself.” United States v. Riccobene, 709 F.2d 214, 228 (3d Cir.1983) (internal quotation omitted). Appellees contend that the Slingers invited the District Court’s error by conceding, in their letter brief opposing the Motions to Dismiss, that “the technical arguments regarding 11th Amendment immunity and official capacity are in all likelihood well founded” and stating that they were “willing to enter Stipulations of Dismissals to that effect.” App. at 197a. The Slingers did not invite the District Court’s error, however, because they specifically excluded their individual capacity claims from that concession, stating that “[t]he individual claims and qualified immunity require discovery.” Id.
The Slingers also asserted their claim of error before the District Court in their letter brief supporting their Motion for Reconsideration of the District Court’s dismissal of the Complaint. The Slingers argued, in that brief, that the District Court “improperly dismissed the claims against the [Appellees] based upon their individual capacities” and that “clear Constitutional violations ... would subject those involved [to] individual capacity lawsuits.” Id. at 221a, 224a. We conclude that the Slingers thereby preserved this issue for appeal. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.2009) (“For an issue to be preserved for appeal, a party ‘must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits.’ ” (quoting Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir.1999))).
Appellees also contend that we should affirm the District Court’s decision dismissing the Complaint even if the District Court erred with respect to the Eleventh Amendment analysis, because the Complaint fails to state claims against them upon which relief may be granted. “ ‘[W]e may affirm a correct decision of the district court on grounds other than those relied upon by the district court.’ ” Holk v. Snapple Beverage Coup., 575 F.3d 329, 335 (3d Cir.2009) (quoting Cent. Pa. Teamsters Pension Fund v. McCormick Dray Line. Inc., 85 F.3d 1098, 1107 (3d Cir.1996) and citing Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937)). “However, this rule does not apply to cases in which the party has waived the issue in the district court.” Id. We may only “ ‘affirm the lower court’s ruling on different grounds [if] the issue which forms the basis of our decision was before the lower court.’ ” Id. at 335-36 (quoting Morse v. Lower Merion Sch. Disk, 132 F.3d 902, 904 n. 1 (3d Cir.1997) and citing Exxon Shipping Co. v. Baker, — U.S. —, 128 S.Ct. 2605, 2616-18, 171 L.Ed.2d 570 (2008) and Bailey v. Dart Container Carp, of Mich., 292 F.3d 1360, 1362 (Fed. Cir .2002)).
Appellees argue that the Complaint fails to state a claim upon which relief may be granted for two reasons: (1) because it does not allege facts upon which it could *362be concluded that there was no probable cause underlying the warrant for Daniel Slinger’s arrest and (2) because New Jersey does not recognize a cause of action for negligent investigation. None of the Defendants in this action, including Appel-lees, raised these grounds for dismissal of the Complaint before the District Court. See App. at 57a-237a. Consequently, these arguments may not be considered in this appeal.
IV.
For the foregoing reasons, we will reverse the District Court’s dismissal of the Complaint as to the claims asserted against Appellees in their individual capacities and we will remand this action with instructions that the District Court permit those claims to go forward. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477697/ | *363OPINION OF THE COURT
CONNER, District Judge.
Appellant Eric Keller appeals his sentence following his plea of guilty to a ten-count indictment charging him with mail fraud in violation of 18 U.S.C. § 1341. Specifically, Keller appeals a special condition of supervised release banning his use of the internet to create or conduct “business websites” during the three year term of supervised release. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and will affirm.
Background
The parties are familiar with the facts and proceedings in the District Court, so we will only briefly revisit them here. Keller owned and operated an internet retail candy business via several websites. He engaged the commercial shipping services of United Parcel Service (“UPS”) to deliver candy to his internet customers. Using fraudulent information, Keller established a succession of twelve UPS shipping accounts. When one shipping account was suspended for non-payment, Keller abandoned that account and opened another, utilizing aliases and other subterfuge to hide his identity. Ultimately, UPS suffered a loss of approximately $155,650.
On September 4, 2007, Keller pleaded guilty to ten counts of mail fraud in violation of 18 U.S.C. § 1341. On August 1, 2008, the District Court imposed a term of incarceration of 27 months, a three year term of supervised release and full restitution. Pertinent to the instant appeal, the District Court imposed the following special condition of supervised release: “As a further special condition of supervised release, the defendant shall cease and no longer create or conduct any business websites via the internet.” App. 47.1
Standard of Review
We review challenges to special conditions of supervised release under an abuse of discretion standard. United States v. Voelker, 489 F.3d 139, 143 n. 1 (3d Cir. 2007); United States v. Smith, 445 F.3d 713, 716 (3d Cir.2006).
Discussion
District courts may impose a variety of special conditions of supervised release provided, however, that such conditions are reasonably related to the statutory factors set forth in 18 U.S.C. § 3553(a).2 Moreover, district courts must make factual findings that establish some connection between the special condition and the offense of conviction or other characteristics of the defendant. United States v. Miller, 594 F.3d 172, 183-85, 2010 WL 395917 at *9-10 (3d Cir. February 5, 2010); United States v. Heckman, 592 F.3d 400, 404-05 (3d Cir.2010). We will affirm special conditions that have “ ‘any viable basis ... in the record before the District Court ....’” US. v. Voelker, 489 F.3d 139, 144 (3d Cir.2007) (quoting United States v. Warren, 186 F.3d 358, 367 (3d Cir.1999)).
Pursuant to our recent precedential opinion in United States v. Heckman, su*364pra, we examine special conditions on a defendant’s use of the internet with sensitivity to three factors: “(1) the length and (2) coverage of the imposed ban; and, (3) the defendant’s underlying conduct.” Id. at 405 (emphasis in original). Accord, United States v. Miller, supra.
Applying these standards to the special condition at issue, we have no hesitation in upholding it. First, we note that the District Court carefully considered the underlying fraud in crafting the special condition and made appropriate factual findings to support it:
I make a finding that there is a direct relationship between the defendant’s use of the internet and the crime for which he has pled guilty in this Court.
An imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that absent such restriction, the defendant will continue to engage in unlawful conduct similar to that which the defendant was convicted, and that the time frame and structure of the special condition is for the minimum time frame and the minimum extent necessary to protect the public and that is the length of time of supervised release.
Sentencing Transcript, app. at 47.
With respect to duration, the restriction is limited to three years — the term of supervised release. The restriction is also temperate in scope. It prohibits only the use of the internet to establish or conduct mail order businesses.3 Finally, it is directly related to the criminal conduct underlying Keller’s conviction, to wit: mail fraud emanating from an internet candy business.
In sum, we conclude that there is a sufficient nexus between the narrow restriction on Keller’s use of the internet and the objectives of supervised release, particularly deterrence and protection of the public. We also conclude that it does not impose a “greater deprivation of liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2). Accordingly, we will affirm the judgment of the District Court.
. We note a slight discrepancy in the wording of the special condition in the judgment form which states: “As a further special condition of supervised release, the defendant shall cease and no longer create or conduct any businesses/websites via the internet for the period of supervision.” App. 12. Given the District Court's explicit description of the condition at the time of sentencing, we are not troubled by this minor and, presumably, inadvertent difference in wording. See Sentencing Transcript, app. at 34. (The Court: "The occupational restriction ... is his using the internet for mail order business, and that's the basis of this crime.”)
. We are mindful that special conditions cannot involve a "greater deprivation of liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2).
. In his brief, Keller characterizes the condition as an "extremely overbroad and excessively restrictive occupational restriction” and suggests heightened scrutiny of the condition because "it puls him and his established company out of business.” Brief for Appellant at 11, 15. In light of the underlying fraud perpetrated by Keller while operating his "established company,” this argument is specious. To the extent the restriction excludes Keller from any internet-based mail order business for three years, it is deterring him and it is protecting the public, albeit temporarily, from further acts of fraud. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477699/ | OPINION OF THE COURT
DAVIS, District Judge.
Appellant Manuel Antonio Linares-San-doval pleaded guilty to one count of conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The District Court imposed a below-Guidelines sentence of 78 months imprisonment and three years supervised release on each count, to run concurrently, as well as a special assessment of $200.00. Sandoval filed a timely notice of appeal.
Defense counsel has filed a motion to withdraw as counsel and has submitted a brief in support of the motion pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sandoval was given notice of his right to file a pro se brief, but has not submitted such a brief. The United States has filed a brief in support of counsel’s motion. Because this case presents no non-frivolous issues for appeal, we will affirm the District *366Court’s judgment and, in a separate order filed concurrently herewith, we will grant counsel’s motion to withdraw.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
In September 2003, “Maracas” paid an individual to drive a 1991 Pontiac Grand Prix, the battery of which contained five kilograms of heroin, from Texas to New Jersey. While en route, state troopers stopped the individual and discovered the heroin in the vehicle. The individual then agreed to act as a confidential informant (“Cl”) and make a controlled delivery of the heroin to New Jersey. Upon arriving in North Carolina, the Cl phoned Maracas, who told the Cl to contact Sandoval. The Cl then arranged to meet Sandoval in New Jersey. Sandoval paid the Cl $4,000.00 in exchange for the Pontiac containing heroin. After obtaining control of the vehicle, Sandoval drove the vehicle to a Burger King, where he was stopped in the parking lot by an officer. The officer impounded the vehicle, but released Sandoval. In April 2004, Sandoval applied for a position at the United States Embassy in Guatemala. A routine background check revealed that Sandoval was part of a pending DEA investigation. In February 2005, Sandoval was arrested and jailed in Guatemala. He was subsequently extradited to the United States in August 2007.
Sandoval was indicted for conspiracy to possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). On October 20, 2008, he pleaded guilty to both charges. District Judge Jose L. Linares conducted an extensive plea colloquy. Sandoval admitted to the acts charged in the indictment, including that he knew the vehicle contained heroin and that he intended to distribute the heroin. On February 10, 2009, after a thorough discussion of the Sentencing Guidelines and the applicable 18 U.S.C. § 3553(a) factors, the District Court imposed a below-Guidelines sentence of 78 months imprisonment and three years supervised release on each count, to run concurrently, as well as a special assessment of $200.00.
II.
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and exercises plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Third Circuit Local Appellate Rule 109.2(a) provides that “[wjhere, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967)....” When counsel submits an An-ders brief, our inquiry is twofold. First, we must consider “whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements.” United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (quoting United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001)). Counsel must “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and “explain why the issues are frivolous.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). “Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in Anders.” Youla, 241 F.3d at 300. Second, *367this Court must conduct an independent review of the record and determine whether there are any non-frivolous issues for appeal. Coleman, 575 F.3d at 319. If counsel’s Anders brief is adequate, we con-fíne our review to the issues presented in counsel’s brief and any pro se brief submitted by the defendant. See Youla, 241 F.3d at 301. However, even if counsel’s brief is inadequate, we may still dismiss the appeal if it presents only patently frivolous issues. See Marvin, 211 F.3d at 781.
III.
Counsel’s Anders brief is adequate. When a defendant pleads guilty, three potential issues remain available on appeal: (1) the jurisdiction of the court below; (2) the constitutional and statutory validity of the plea; and (3) the reasonableness and legality of the sentence imposed. See United States v. Broee, 488 U.S. 563, 569-76, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Counsel focuses his discussion on the knowing and voluntary nature of Appellant’s guilty plea as well as the reasonableness of Appellant’s below-Guidelines sentence.1 Counsel’s conscientious examination of the plea colloquy and sentencing hearing transcripts reveals no non-frivolous issues for appeal.
In counsel’s Appendix, he includes Appellant’s “pro se appeal papers.” See App. 1-14. These papers detail the sentencing variances that Appellant originally sought and that the District Court carefully considered. Specifically, Appellant sought consideration for the time he served in a Guatemalan jail while awaiting extradition. He argued not only for credit for this time but also for consideration of the “hard conditions” he endured in the Guatemalan jail. In addition, Appellant sought consideration for his status as a deportable alien and the possible unwarranted sentencing disparity that could result from this status. These papers were not submitted directly to this Court and appear only in the Appendix of counsel’s brief. Even so, they fail to raise a non-frivolous issue for appeal as the District Court thoroughly considered these arguments and sentenced Appellant accordingly. After conducting our own independent review and considering all of the issues raised in counsel’s brief and Appellant’s pro se papers, we find that there are no non-frivolous issues for appeal.
A guilty plea is valid if it was entered “knowing[ly], voluntarily] and intelligent[ly].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.2008). In challenging the voluntariness of a guilty plea, a defendant must establish that the trial court failed to comply with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Federal Rule of Criminal Procedure 11(b). See United States v. Schweitzer, 454 F.3d 197, 202-03 (3d Cir.2006). In this case, the District Court and the Government informed Sandoval of the nature of the charges against him, the underlying conduct that the Government would prove at trial, the rights he would be waiving by entering a guilty plea, and the consequences of pleading guilty to the offenses, including the possible penalties. Sandoval specifically admitted that he committed the acts outlined in the indictment, he knew the vehicle contained heroin and intended to distribute that heroin, and he was satisfied with his representation. The District Court found that his plea was knowing and voluntary. Based on this record, we find no appealable issue of merit as to the *368validity or voluntariness of Sandoval’s guilty plea.
We will affirm a district court’s sentence if it is both procedurally and substantively reasonable. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review a sentence under the deferential abuse of discretion standard. Tomko, 562 F.3d at 567. In imposing a procedurally proper sentence, the District Court must: (1) correctly calculate the proper Guidelines sentence; (2) formally resolve any departure motions; and (3) exercise its discretion in determining the applicability of any relevant 18 U.S.C. § 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). We evaluate the substantive reasonableness of a sentence based on the totality of the circumstances. Tomko, 562 F.3d at 567.
The District Court’s sentence was reasonable. First, the District Court correctly determined Sandoval’s Guidelines range as 87-108 months. Second, neither the Government nor Sandoval requested any Guidelines departures. Third, the District Court thoughtfully considered Sandoval’s 18 U.S.C. § 3553(a) arguments in favor of a below-Guidelines sentence, and, in fact, imposed a below-Guidelines sentence of 78 months. The District Court heard arguments regarding Sandoval’s time and experience in the Guatemalan jail as well as the potential sentencing disparity that could result from his status as a deportable alien. The District Court clearly gave meaningful consideration to all of the applicable 18 U.S.C. § 3553(a) factors and made an individualized assessment based on the facts presented. See Tomko, 562 F.3d at 567-68. In addition, the District Court provided sufficient justification on the record to support its sentencing conclusions. See id. at 567. The record clearly demonstrates that the District Court evaluated the reasonableness of a Guidelines sentence in light of the seriousness of the offenses and Defendant’s role therein, Defendant’s lack of criminal history as well as his family circumstances, the application of the “safety valve” provision, the length of time Defendant spent in a Guatemalan jail and the allegedly hard conditions he endured therein, and the potential additional time Defendant might serve as a result of his immigration status. See App. 103-08. Accordingly, there is no appealable issue of merit as to the legality or reasonableness of Sandoval’s sentence.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment and, in a separate order, grant counsel’s motion to withdraw. We further hold that “the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme Court.” 3d Cir. L.A.R. 109.2(b).
. Although counsel does not raise the issue of the lower court’s jurisdiction, such an argument would be patently frivolous as the District Court has subject-matter jurisdiction over all offenses against the laws of the United States pursuant to 18 U.S.C. § 3231. Thus, counsel was not required to raise this issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477701/ | OPINION OF THE COURT
PER CURIAM.
Anthony Mahoney appeals from the District Court’s denial of the petition for a writ of habeas corpus he filed pursuant to 28 U.S.C. § 2254. For the following reasons we will affirm.
I
In 1998 Clark and Barbara Ferry hired Mahoney to represent them with respect to an automobile accident in which their son had been killed.1 In January 1999 the offending driver’s insurance carrier advised the Ferrys that the case had been settled for $75,000 and that they had mailed to Mahoney a check in that amount, made out to “Clark Ferry & Barbara Ferry ... and Mahoney & Mahoney.” When the Ferrys repeatedly asked Mahoney when they would receive their portion of the settlement, he advised them that he was awaiting certain tax releases. Eventually the Ferrys obtained a copy of the check, on the back of which they found three signatures, two purporting to be the Ferrys’ and one on behalf of Mahoney & Mahoney. Suspicious, the Ferrys contacted the Westfield, New Jersey, Police Department and the Union County Prosecutor.
Mahoney was eventually convicted in the Superior Court, Law Division, Union County, of various crimes, including third degree theft, third degree misapplication *370of entrusted property, and two counts of third degree forgery. The court sentenced Mahoney to two concurrent three-year terms of probation. During sentencing Mahoney applied unsuccessfully for entrance into the Pre-Trial Intervention (PTI) program. The Appellate Division affirmed the denial of Mahoney’s PTI application, but reversed Mahoney’s convictions based on the trial court’s exclusion of defense witness testimony concerning Ma-honey’s character traits as an attorney, failure to instruct the jury on how to use Rule 1:21-6 (setting forth an attorney’s record keeping and trust fund accounting obligations), and allowing improper statements by the prosecutor during summation. State v. Mahoney, 376 N.J.Super. 63, 868 A.2d 1171 (N.J.Super.A.D.2005). The New Jersey Supreme Court agreed that failure to instruct the jury how to apply Rule 1:21-6 was error, but held that the trial court’s limitation on the testimony of character witnesses was proper and that the prosecutor’s statements did not deny Mahoney a fair trial. Accordingly, the court affirmed in part, reversed in part, reinstated Mahoney’s forgery convictions, and remanded for a new trial on the counts of the indictment charging Mahoney with third degree theft and third degree misapplication of entrusted property. State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006). Those two counts were subsequently dismissed.
While still on probation,2 in July 2006 Mahoney filed a § 2254 habeas corpus petition in the United States District Court for the District of New Jersey raising three claims:
1.The trial court violated Mahoney’s rights under the Equal Protection and Due Process clauses when it denied him admission into the PTI program.
2. The trial court’s restrictions on Ma-honey’s attempts to introduce evidence concerning marital infidelity and related issues violated his rights under the Sixth Amendment’s Confrontation Clause.
3. The trial court’s limitations on testimony from Mahoney’s character witnesses precluded him from using his professional character as a defense, in violation of his right to Due Process.
The District Court concluded that Maho-ney’s petition was “mixed.” Although Ma-honey exhausted Claim 1 in state court, he presented Claims 2 and 3 in state court solely in terms of state law; as a result, Claims 2 and 3 are unexhausted. Because AEDPA’s statute of limitations had already run, the District Court considered “staying and abeying” Mahoney’s petition to allow him to return to state court to exhaust Claims 2 and 3 under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), rather than dismissing the petition without prejudice under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The court declined to do so, however, because it determined that none of Mahoney’s claims had merit. See Rhines, 544 U.S. at 277, 125 S.Ct. 1528 (“[T]he district court would abuse its discretion if it were to grant ... a stay when [petitioner’s] unexhausted claims are plainly meritless.”). Accordingly, the court denied Mahoney’s petition and declined to issue a certificate of appealability.
Mahoney filed a timely notice of appeal. We granted his request for a cei'tificate of appealability for the question whether the District Court should have stayed his petition or dismissed it without prejudice instead of denying it. We have jurisdiction *371under 28 U.S.C. §§ 1291 and 2253(c), and review the District Court’s decision not to stay for abuse of discretion. Rhines, 544 U.S. at 277-78, 125 S.Ct. 1528; Crews v. Horn, 360 F.3d 146, 149 (3d Cir.2004).
II
Faced with Mahoney’s “mixed”3 petition, the District Court had four options: dismiss the petition without prejudice under Rose, “stay and abey” under Rhines, allow Mahoney to delete his unexhausted claims, see Rhines, 544 U.S. at 278, 125 S.Ct. 1528, or, if all of his claims are meritless, deny the petition under § 2254(b)(2) (allowing denial of a petition on the merits “notwithstanding the failure of the applicant to exhaust ... ”).
As the District Court explained, the expiration of AEDPA’s statute of limitations made the first option unattractive, and thus triggered consideration of the second. However, a court may not “stay and abey” without first determining that “there was good cause for the petitioner’s failure to exhaust his claims ... in state court.” Id. at 277, 125 S.Ct. 1528. Even though our order granting Mahoney’s request for a certificate of appealability cited Rhines, Mahoney has failed to address the issue of good cause at all, let alone make the requisite showing. For that reason alone, we cannot conclude that the District Court abused its discretion in declining to stay the petition and we need not reach the merits of Claims 2 and 3.
Ill
As for Claim 1, Mahoney argues that the prosecutor’s reasons for denying his application to participate in the PTI program — primarily because his crime was a “breach of the public trust” — are without basis because he is an attorney in private practice, not a public employee. Moreover, he was eminently qualified to participate for various reasons, including the facts that he had no prior record and paid the Ferrys in full five months before the prosecutor filed a criminal complaint. Ma-honey concedes that the Appellate Division upheld denial of his admission to the PTI program based on abuse of public trust, but claims that another panel of the same court reached the opposite conclusion. He relies on the fact that public employees, including attorneys, have been admitted to the program to support his contention that denial of his application amounted to a violation of his right to equal protection.
Although he invokes the Equal Protection and Due Process clauses, Mahoney is effectively challenging the prosecutor’s and two state courts’4 determinations that he was properly barred from the PTI program.5 But such rulings on matters of *372state law are subject to collateral review in federal habeas corpus proceedings only in extraordinary circumstances. Lambert v. Blackwell, 387 F.3d 210, 239 n. 24 (3d Cir.2004).
We perceive no extraordinary circumstances here. Assuming arguendo that a violation of the Equal Protection Clause would warrant such review (and, indeed, that a challenge to a PTI ruling is cognizable in § 2254 in the first place), Mahoney has not set forth a fleshed-out equal protection argument; he merely complains of disparate treatment, which is insufficient. He does not allege or even imply that he has been discriminated against on the basis of a suspect classification such as race or gender; nor has he shown that there was no rational basis for the disparate treatment he alleges. See United States v. Armstrong, 517 U.S. 456, 465-468, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (setting forth standard for selective prosecution claims); Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42-43 (3d Cir.1984) (addressing equal protection challenge to an allegedly disparate sentence); United States v. Roberts, 915 F.2d 889, 891 (4th Cir.1990) (same).
IV
Unpersuaded by any of Mahoney’s remaining arguments, we will AFFIRM the Order of the District Court.
. Because we write primarily for the parties, who are familiar with the background of this case, we will omit details which are not directly relevant to our disposition of the appeal. For background details, see State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006).
. A District Court lacks jurisdiction to entertain a habeas corpus petition if the petitioner was not "in custody” under the conviction he is attacking when he filed his petition. 28 U.S.C. § 2254(a); Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003). Being on probation satisfies this custody requirement. Lee v. Stickman, 357 F.3d 338, 342 (3d Cir.2004).
. We agree with the District Court that Maho-ney did not exhaust Claims 2 and 3. Mahoney effectively concedes in his opening brief that he did not exhaust those claims, only to assert in his reply brief that he exhausted Claim 2: he raised it as a federal claim before the Appellate Division and again in his Cross Petition for Certification to the New Jersey Supreme Court. However, the passages in the Appendix cited by Mahoney with regard to his Cross Petition plainly concern Claim 1, not Claim 2. See app. 147-150. Either way, the petition remains mixed.
. The Appellate Division provided an exhaustive analysis of the issue in upholding the decision to exclude Mahoney from the program. See State v. Mahoney, 376 N.J.Super. 63, 868 A.2d 1171, 1188-92 (N.J.Super.A.D.2005), affirmed in part and reversed in part on other grounds, State v. Mahoney, 188 N.J. 359, 908 A.2d 162 (2006).
.To support his contention that the Appellate Division has been inconsistent in applying the "public trust” exception to the PTI program, Mahoney relies on State v. Mason, 355 N.J.Super. 296, 810 A.2d 88 (N.J.Super.A.D.2002). That decision, however, concerns the definition of "public servant” in the context of the crime of "official misconduct,” N.J.S.A. 2C:30-2, and makes no mention of the "public trust” exception to the PTI program. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477703/ | OPINION OF THE COURT
DAVIS, District Judge.
Appellant Rodney Boomer pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute in excess of five grams of cocaine base, heroin, marijuana, and cocaine, in violation of 21 U.S.C. § 846. He was sentenced to a 211-month term of incarceration, followed by a five-year term of supervised release, and a special assessment of $100.00. Boomer filed a timely notice of appeal.
Defense counsel has filed a motion to withdraw as counsel and has submitted a supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Boomer submitted a pro se informal brief in response, as well as a motion to appoint new counsel.1 The United States has filed a brief in response to Boomer’s motion and in support of defense counsel’s motion. Boomer seeks to vacate his guilty plea, claiming that it was not knowing, voluntary, and intelligent. We will affirm the judgment of conviction and sentence imposed, and we will grant counsel’s motion to withdraw and deny Boomer’s motion to appoint new counsel.
I.
Because we write exclusively for the parties, we recount only the facts necessary to our decision. On May 25, 2005, a confidential informant, at the direction of state police officers, made a controlled purchase of cocaine from Boomer at a vacant store in Monroe County, Pennsylvania. On July 23, 2005, another confidential informant reported to the police that Boomer was selling drugs out of a clothing store in Monroe County. On July 27, 2005, this informant, at the direction of the police, made a controlled purchase of suspected cocaine from Boomer at the clothing store. The police then entered the store to arrest Boomer. Shortly thereafter, Boomer’s wife, Cathy Boomer, arrived at the scene, and during an interview with the police, she stated that the business was in her name and consented to a search of the store. The Boomers also consented to a search of their bedroom at Rodney Boom*374er’s mother’s residence, which resulted in the seizure of drugs and ammunition. At police headquarters, Boomer was advised of his Miranda rights, which he waived, and he gave a statement in which he admitted to trafficking in illegal drugs.
On February 14, 2006, Boomer was indicted for six counts of drug and firearm offenses. Boomer initially entered a plea of not guilty. Boomer’s trial counsel filed a motion to suppress Boomer’s statement and the evidence seized at the clothing store and his mother’s home. Judge Edwin M. Kosik granted the motion with respect to the evidence seized from the house, but otherwise denied it. Trial counsel filed a motion for reconsideration of the suppression ruling, and Boomer, acting pro se, filed a notice to appeal the District Court’s ruling with this Court. Trial counsel sent a letter to this Court, explaining that Boomer acted without consultation with counsel, and that the appeal was interlocutory in nature, but noting that Boomer reserves the right to appeal the ruling at an appropriate time. This Court dismissed Boomer’s appeal for lack of jurisdiction.
Boomer’s trial counsel filed a motion to withdraw as counsel in the District Court on April 12, 2007, and Boomer was appointed new counsel. At the hearing on that motion, the District Court and Boomer discussed his efforts to appeal the ruling on his motion to suppress, and Judge Kosik explained that entering a conditional plea of guilty was a way to accelerate an appeal of the suppression motion. Thereafter, Boomer sent two letters to his new counsel, in January 2008 and April 2008, expressing his interest in appealing the denial of his motion to suppress. Boomer also sent a similar letter to the District Court, to which the District Court responded.
On July 9, 2008, pursuant to a plea agreement, Boomer pleaded guilty to count one of the indictment: conspiracy to distribute and possess with the intent to distribute in excess of five grams of cocaine base, heroin, marijuana, and cocaine, in violation of 21 U.S.C. § 846. The plea agreement did not contain an appellate-waiver provision. However, it included a provision stating that the agreement was the only agreement entered into, and that Boomer “certifies that [his] plea is knowing and voluntary, and is not the result of threats or promises” apart from those in the plea agreement. Boomer also signed a “Statement of Defendant” which did not include an appellate waiver provision, but did contain a clause in which Boomer acknowledged that he understood his trial rights and that he was giving up these rights by pleading guilty. The District Court conducted a plea hearing consistent with Federal Rule of Criminal Procedure 11. During the plea colloquy, upon questioning by Judge Kosik, Boomer stated that he understood the terms of the plea agreement and that he was giving up his trial rights. Waiver of appellate rights was not discussed at the plea hearing. Boomer did not file a motion to withdraw his plea with the District Court. He now argues that his plea was not voluntary, knowing, and intelligent because he was not aware, at the time of entering his plea, that he was waiving his right to appeal the District Court’s denial of his motion to suppress.
II.
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). This Court exercises plenary review over an Anders motion. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346,102 L.Ed.2d 300 (1988).
*375in.
Third Circuit Local Appellate Rule 109.2(a) provides that “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).... ” When counsel submits an An-ders brief, our inquiry is twofold. First, we must consider “whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements.” United States v. Coleman, 575 F.3d 316, 319 (3d Cir.2009) (quoting United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001)). Counsel must “satisfy the court that [he] has thoroughly examined the record in search of appealable issues” and “explain why the issues are frivolous.” Youla, 241 F.3d at 300 (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). “Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in An-ders.” Id. Second, this Court must conduct an independent review of the record and determine whether there are any non-frivolous issues for appeal. Coleman, 575 F.3d at 319. If counsel’s Anders brief is adequate, we confine our review to the issues presented in counsel’s brief and any pro se brief submitted by the defendant. See Yoida, 241 F.3d at 301. However, even if counsel’s brief is inadequate, we may still dismiss the appeal if it presents only patently frivolous issues. See Marvin, 211 F.3d at 781.
A.
We find counsel’s brief adequate. When a defendant pleads guilty, three potential issues remain available on appeal: (1) the jurisdiction of the district court, (2) the validity or voluntariness of the guilty plea, and (3) the legality of the sentence. See United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Counsel identifies each of these grounds for relief, and after conducting a thorough review of the record, finds no issues of arguable merit for appeal. Counsel predicts that Boomer will appeal the reasonableness of his sentence, and he refers to the record to support his finding that this issue is frivolous. Although trial counsel did not specifically address the argument Boomer presents in his pro se brief, trial counsel does state that, after reviewing Boomer’s correspondence and brief, “the heart of his appeal” is the adverse ruling on his motion to suppress. Counsel’s Br. 2. Moreover, counsel demonstrates that he reviewed the record and the plea colloquy and finds that any challenge to the validity or voluntariness of the plea would be frivolous. Accordingly, this Court is satisfied that counsel conducted a “conscientious examination” of the record and that his brief is adequate.
B.
Because we find that the Anders brief is adequate on its face, our independent review is guided by the portions of the record identified in the brief and any issues raised by Boomer in his pro se brief. See Yoida, 241 F.3d at 301. The Anders brief identifies three potential grounds for appeal as discussed above, and Boomer’s pro se brief presents only one issue for appeal, the voluntariness of his guilty plea. After reviewing these portions of the record, we find that there are no non-frivolous issues for appeal.
Examining first the jurisdiction of the District Court, federal district courts have jurisdiction over all offenses against the United States under 18 U.S.C. § 3231. Boomer was charged with six federal offenses in his indictment, and he pleaded guilty to 21 U.S.C. § 846. Jurisdiction *376was proper and there are no appealable issues to consider.
We turn next to Boomer’s challenge to the voluntariness of his plea. A defendant may enter into either an unconditional or conditional guilty plea. “[A] criminal defendant’s unconditional, knowing and voluntary plea of guilty waives all non-jurisdictional issues.” Washington v. Sobina, 475 F.3d 162, 165 (3d Cir.2007); see also United States v. Schweitzer, 454 F.3d 197, 205 (3d Cir.2006) (recognizing that an unconditional guilty plea “effect[s] an implicit waiver” of non-jurisdictional issues). This rule is consistent with the Supreme Court’s holding in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that when a criminal defendant has pleaded guilty in open court, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to entry of the guilty plea.” 411 U.S. at 267, 93 S.Ct. 1602. To preserve the right to appeal a ruling on a pretrial motion, the defendant must enter into a conditional plea with the “consent of the court and the government” that “reserv[es] in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.” Fed.R.Crim.P. 11(a)(2). In his brief, Boomer acknowledges that he did not enter into a conditional plea and therefore is prohibited from challenging the District Court’s adverse ruling on his motion to suppress claim. Boomer instead contests that his unconditional guilty plea was not knowing and voluntary because he did not know, at the time of entering the plea, that he was waiving this appellate right. We find Boomer’s challenge to be frivolous.
Whether unconditional or conditional, a guilty plea is valid if entered into “knowingly], voluntarily] and intelligently].” United States v. Tidwell, 521 F.3d 236, 251 (3d Cir.2008). The constitutional requirement that a guilty plea be knowing and voluntary is “embodied in Federal Rule of Criminal Procedure 11.” Schweitzer, 454 F.3d at 202 (citing Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Rule 11(b) requires the district court to “address the defendant personally in open court,” advise the defendant of a series of admonitions related to his or her guilty plea, and ensure that the defendant understands these terms. Fed. R.Crim.P. 11(b); see also Schweitzer, 454 F.3d at 202-03.
To challenge the voluntariness of a guilty plea, an appellant must demonstrate that the requirements of Federal Rule Criminal Procedure 11 and the constitutional requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not satisfied. When an appellant did not seek to withdraw his guilty plea with the district court, he or she must satisfy the plain error standard of review and must show: (1) there was error, which is a deviation from a legal rule; (2) the error was plain or obvious; and (3) the error affected a defendant’s substantial rights. United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008) (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). If all three conditions are met, this Court will exercise its discretion to correct the error only if “(4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. (citing Johnson, 520 U.S. at 467, 117 S.Ct. 1544). This Court may “consult the entire record, and not simply the record of the plea colloquy when considering the effect of the Rule 11 error.” United States v. Corso, 549 F.3d 921, 929 (3d Cir.2008) (citing Vonn, 535 U.S. at 59, 122 S.Ct. 1043).
*377Because Boomer did not seek to withdraw his plea with the District Court, he must now satisfy the plain error rule to vacate his guilty plea. Examining the first prong, Boomer is unable to demonstrate that any error occurred with regard to the requirements of Rule 11, and therefore his challenge must fail. Boomer entered into a valid plea agreement, which he authorized his counsel to negotiate and which both signed. The plea agreement did not contain an appellate waiver provision. Boomer also signed a “Statement of Defendant,” which included a clause that he understood his trial rights and that he was giving up these rights by entering a plea. The Statement did not contain an appellate waiver provision. At the plea hearing, the Government summarized the relevant points of the plea agreement, and Boomer stated that he and his attorney understood its terms. In addition, the District Court, with the assistance of the Government, discussed with Boomer the nature of the charges against him, the evidence against him, the trial rights he would be waiving by pleading guilty, and the penalties and sentence he was facing. This colloquy was in accordance with Rule 11(b)(1). The District Court did not discuss with Boomer that he was waiving his right to appeal any pretrial rulings against him, however, Rule 11(b)(1) does not require this warning. The district court must only discuss waiver of appellate rights with a defendant if the “terms of any plea-agreement provision waiv[es] the right to appeal or to collaterally attack the sentence.” Fed.R.Crim.P. ll(b)(l)(N); see also Corso, 549 F.3d at 924-25 (finding that district court committed plain error when defendant’s plea agreement contained appellate waiver provision and neither district court nor prosecutor sufficiently explained the waiver provision with defendant). Because Boomer’s plea agreement did not contain an appellate waiver provision, the warning outlined in Rule ll(b)(l)(N) is not applicable.
In his brief, Boomer acknowledges that the language of Rule 11(b) does not specifically require this warning, but he contends that given the circumstances of his case, the District Court should have had a duty to inform him that he was waiving his right to appeal the adverse ruling on his motion to suppress. Boomer argues that he had a reasonable belief that he reserved this right to appeal based on representations made by the District Court, the Government, and his counsel. For example, Boomer’s first trial counsel noted that he reserved this right to appeal in her letter to this Court, the District Court expressed to Boomer at the motion to withdraw hearing that by entering a conditional plea he would accelerate review of the suppression ruling, his second trial counsel told him that he would appeal the ruling, and the Government did not include a waiver provision in the Statement of Defendant even though they knew he wanted to appeal. Boomer also contends that his own actions demonstrated his intent to appeal the denial of his pretrial motion through his effort to file an interlocutory appeal and the letters he sent to counsel and the District Court. In light of these circumstances, he argues, the District Court should have informed him that he was waiving his right to appeal.
The representations and omissions made by the District Court, the Government, and trial counsel could have conveyed to Boomer a belief that he maintained this right to appeal; however, this Court finds that Boomer cannot meet the heavy burden of showing plain error in light of the clear language of Rule 11. Even though the District Court was aware of his intent to file an appeal, it was not obligated under the Rule to inform him that he waived such right, though it may have been beneficial to do so given the court’s prior statements. Moreover, if the Government’s plea agreement contained an appellate *378waiver provision, as many plea agreements in districts in this Circuit do, Boomer’s mistaken belief regarding his appellate rights would have been easily dispelled. Because Boomer failed to satisfy the first prong of the plain error rule, this Court does not consider the other three elements of the rule, and finds no appealable issue of merit as to the validity or voluntariness of Boomer’s plea on direct appeal.2
Examining next the legality of Boomer’s sentence, this Court reviews a district court’s sentence for abuse of discretion by examining its procedural and substantive reasonableness. See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Procedurally, a district court must (1) calculate a defendant’s sentence under the Guidelines, (2) formally rule on any departure motions and state on the record whether it is granting a departure, and (3) exercise its discretion by considering the relevant § 3553(a) factors. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). If a district court’s procedure is reasonable, we then consider its substantive reasonableness based on the totality of the circumstances. See Tomko, 562 F.3d at 567 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586).
In his Anders brief, trial counsel finds that Boomer’s sentence was reasonable, and Boomer does not challenge his sentence in his pro se brief. We agree and find that the District Court did not abuse its discretion in imposing the sentence. The District Court correctly calculated Boomer’s Guideline sentence to be a range of 262 months to 327 months. During the sentencing hearing, the District Court formally ruled on defense counsel’s departure motions. Defense counsel requested that Boomer not be classified as a career offender under Guideline § 4B1.1, which the District Court denied on the record after considering Boomer’s criminal history and his mental state. Defense counsel also moved for a downward departure for acceptance of responsibility under Guideline § 3E1.1, which the District Court granted after careful consideration of Boomer’s disruptive conduct at correctional institutions and his cooperative attitude following his arrest in this case. The District Court recalculated Boomer’s Guidelines sentence in light of the acceptance of responsibility departure and reduced it to 188 to 235 months. The District Court then considered the relevant § 3553(a) factors, including Boomer’s history and characteristics and the need for the sentence imposed. The District Court sentenced Boomer to 211 months of imprisonment, followed by a five-year term of supervised release, and a special assessment of $100.00. The sentence imposed by the District Court was both procedurally and substantively reasonable, and therefore this Court finds no non-frivolous issues concerning the legality of Boomer’s sentence.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment, and in a separate order, grant counsel’s motion to withdraw.
. Boomer also filed a motion to appoint new counsel prior to defense counsel's Anders motion.
. We note that much of Boomer’s challenge is directed to claims of ineffective assistance of counsel, which may be properly raised on a collateral attack where the record is sufficient to review the issue. See United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477705/ | OPINION
PER CURIAM.
Petitioner Zhen Rui Chen is a native and citizen of the People’s Republic of China who petitions for review of the Board of Immigration Appeals’s (“BIA”) decision affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). For the following reasons, we will deny Chen’s petition for review.
I.
Chen entered the United States on September 2001. In August 2002, he filed an application for asylum and related relief asserting that he had been persecuted under China’s family planning policies. In the affidavit accompanying his application, Chen claimed that his wife had been subjected to a forced abortion on March 8, 2001, and that he had been forcibly sterilized on March 15, 2001. On October 3, 2002, the Department of Homeland Security issued a notice to appear charging Chen with removability under 8 U.S.C. § 1227.
At his removal proceedings, Chen testified consistently with his asylum affidavit. He asserted his wife became pregnant with their third child in late 2000. But because she missed her routine IUD/pregnancy checkup in December 2000, family planning officials came to Chen’s house looking for his wife — who was hiding at *380her sister’s home. When Chen’s wife returned home on March 8, 2001, she was taken by the officials to the LangQi health clinic where she was subjected to an abortion. Thereafter, on March 15, 2001, six officials took Chen from his home to the health clinic. He testified that he was restrained, injected with anaesthesia, and sterilized.
Chen corroborated his claim with abortion and sterilization certificates from the LangQi health clinic as well as testimony from Dr. Robert Chan Luangkhot, a doctor who examined Chen in the United States on August 10, 2002 and again in 2004. Dr. Luangkhot testified that Chen had undergone a vasectomy that — based on faintness of the scar — had occurred around one year before the August 2002 examination. The IJ granted Chen’s claim for asylum but stated that she would reopen the case if the documentation regarding the sterilization and abortion was determined to be fraudulent.
The government’s subsequent investigation showed that the LangQi health clinic documents were fraudulent and upon the government’s motion the IJ reopened the case on March 15, 2005. Chen did not dispute that the documents were fraudulent but attempted to rehabilitate his claim by submitting new documents from the health clinic representing that he had been sterilized on March 15, 1999 and that his wife had undergone an abortion on March 8, 1999. Chen also submitted a letter from his wife — who remains in China — stating that, because she lost the original abortion and sterilization certificates, she obtained those initially submitted from a doctor for five-hundred Chinese dollars. She asserted that she did not know the documents were fraudulent.
On August 16, 2007, the IJ denied Chen’s requests for asylum, withholding of removal, and CAT relief but granted his application for voluntary departure. The IJ concluded that Chen’s “testimony regarding the dates of his forced sterilization and his wife’s forced abortion go to the very heart of his claim.” She noted that the year that these events occurred was disputed until it was discovered that the original documents were fraudulent. The IJ then reasoned that if the 2001 date were correct, then “[Chen’s] attempt to explain the forged documents is false and his credibility has been undermined not only by submitting forged documents, but also by attempting to explain why they are fraudulent.” If, however, the explanation of the forged documents was true and the sterilization and abortion occurred in 1999, then “[Chen] repeatedly stated the incorrect year in which he was sterilized, and the Court finds it unlikely that a man who was forcibly sterilized in the manner described ... would not remember the year in which that traumatic event occurred.”
On August 29, 2008, the BIA affirmed the IJ’s decision. It concluded that the adverse credibility finding was not clearly erroneous, agreeing that the Chen lacked credibility because he had submitted fraudulent documents and noting that the rehabilitative evidence conflicted with his testimony as to the date of the acts of persecution. See Matter of O-D- 21 I. & N. Dec. 1079 (BIA 1998). The BIA also determined that because Chen failed to meet the burden necessary to establish eligibility for asylum, he failed to satisfy the higher standard required for withholding of removal, and had not presented any credible evidence establishing that someone in his situation would be tortured upon his return to China. Finally, the BIA permitted Chen to voluntarily depart from the United States. See 8 U.S.C. § 1229c(b).
Through counsel, Chen now petitions for review of the BIA’s final order of removal.
*381ii.
We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a). In this case, we review the decisions of the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). The decisions are reviewed under the substantial evidence standard and will be upheld “unless the evidence not only supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003) (internal citation omitted). Further, an adverse credibility finding should be “based upon inconsistent statements, contradictory evidences, and inherently improbable testimony” that go to the heart of the asylum claim.1 Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006).
Substantial evidence supports the adverse credibility determination. See Kaita, 522 F.3d at 296. Chen does not dispute that he submitted fraudulent abortion and sterilization certificates in support of his claims. He also failed to authenticate the second set of certificates. The IJ and BIA nevertheless considered the new records and appropriately concluded that Chen’s rehabilitative evidence only raised more questions as to his credibility, and that the questionable evidence goes to the heart of his claim for asylum. Additionally, because the IJ could have rested the adverse credibility finding solely on the submission of the fraudulent documents, we have no need to consider Chen’s arguments relating to the admission of his rehabilitative documents and the explanation for the inconsistencies between the documents. In sum, the evidence does not compel us to overturn the decision to deny the petitioner’s claims.
For the foregoing reasons, we deny Chen’s petition for review.
. Because Chen applied for relief before May 11, 2005, the REAL ID Act’s standard governing review of adverse credibility determina-lions is not applicable to this case. See Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477707/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Gertrude Barnes filed an adversary proceeding in the United States Bankruptcy Court for the Eastern District of Pennsylvania. After a trial, the Bankruptcy Court entered judgment in favor of the Defendants. It subsequently denied Barnes’ Motion for Reconsideration. An appeal was made to the District Court, which issued an order affirming the Bankruptcy Court’s decision. Barnes now appeals the District Court’s judgment and we affirm substantially for the reasons set forth in the Bankruptcy Court and District Court’s opinions.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. This case stems from a sequence of events that began when Barnes contacted Margo Robinson regarding how to obtain a loan to finance renovations and repairs to her home. Barnes had heard Robinson speaking on the radio regarding *383how she assists homeowners in obtaining such loans.
Robinson assisted Barnes in obtaining a loan from Laguna Capital Mortgage Corporation (“Laguna”) in the amount of $47,700 with an annual percentage rate of 11.971%. At the loan settlement, Barnes expressed surprise at the loan’s size, but Robinson- — whom she considered a friend at the time — encouraged her not to worry about this and to sign the papers. Barnes signed the three loan documents. One of these documents, the Settlement Statement, listed $31,797.54 in cash paid to the borrower. A check in this amount was made payable to Barnes, which she then endorsed over to Robinson, who deposited it into her own bank account. No evidence indicated Laguna knew or should have known that Barnes endorsed the check to Robinson.
Robinson testified at trial that Barnes asked for help in finding and hiring contractors to work at her home. Barnes testified to the contrary, claiming that Robinson forced contractors on her. Three contractors worked at Barnes’ home. The second contractor, according to Barnes, tore the house up. The third contractor’s work resulted in electrical problems and he ultimately never completed the repairs and renovations for which Robinson had paid him. Barnes ultimately moved out of her home because of the state of disrepair in which the contractors left it.
Barnes hired an attorney whom she claimed drafted a letter rescinding the loan, but no evidence was offered at trial establishing this letter was ever sent. In July 2002, the servicing agent for the loan and Defendant Bank of New York, to whom the loan had been assigned, filed a mortgage foreclosure action in state court.
Barnes filed her bankruptcy case on October 15, 2002.2 She commenced an adversary proceeding in the Bankruptcy Court on November 22, 2002. Her complaint alleged claims under the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”), and related Pennsylvania laws. The complaint named eight Defendants, but Barnes dismissed her claims with prejudice against all Defendants except Robinson, Laguna, Fairbanks Corporation and Equi-credit Corporation. Barnes subsequently settled with Robinson and obtained an entry of default against Laguna. A second amended complaint named only Laguna and the successor to Fairbanks, Select Portfolio Servicing, Inc. (“SPS”). A Third amended complaint added the Bank of New York Trustee EQCC 2001 F-l Trust, the current holder of the mortgage, as a Defendant. It only included claims under TILA and not any claims under Pennsylvania law. Barnes subsequently agreed to dismiss SPS as a Defendant.
A trial was held in the Bankruptcy Court, at which Barnes, her son who lives with her, and Robinson each testified. The parties submitted briefs after the trial and the Bankruptcy Court entered judgment in favor of the Defendants. The Bankruptcy Court denied Barnes’ Motion for Reconsideration. The District Court affirmed the Bankruptcy Court’s judgment on appeal and Barnes now appeals the District Court’s decision.
II.
On appeal, Barnes first contends that the Bankruptcy Court erred by allowing the Defendants to argue that Barnes failed to prove that she rescinded the loan. Second, in the alternative, Barnes argues that the filing of her bankruptcy case within three years of her contract to refinance *384her home mortgage, in conjunction with the subsequent filing, within sixty days, of a complaint demanding rescission, sufficed to constitute a timely rescission demand. Third, Barnes contends that the Bankruptcy Court erred when it held that the loan settlement proceeds given to Robinson were not an undisclosed finance charge, which would be in violation of the Truth in Lending Act (“TILA”). Fourth, Barnes argues that the Bankruptcy Court erred in finding that the loan she obtained did not fall within the scope of Pennsylvania’s Home Improvement Finance Act (“HIFA”).
Substantially for the reasons set forth in the Bankruptcy Court’s thorough and well-reasoned Memorandums of January 25, 2007 and February 16, 2007, we will affirm the District Court’s order, which affirmed the Bankruptcy Court’s judgment.
We briefly comment on one matter. With regards to the rescission issue, the Bankruptcy Court correctly concluded, and the District Court affirmed this judgment, that Barnes failed to prove that she timely exercised her right to rescind the loan, pursuant to 15 U.S.C. § 1635. Barnes also argued, but only before the District Court, that the filing of her bankruptcy action within three years of the date of her loan, in conjunction with the subsequent filing, within sixty days, of a complaint demanding rescission, sufficed to constitute a notice of rescission. See 11 U.S.C. § 108. This is the second issue Barnes raises before this Court on appeal. As the District Court correctly held, Barnes’ failure to raise this argument before the Bankruptcy Court renders it waived. The District Court, however, also concluded that even if had not been waived, Barnes’ argument was without merit. Relying on the legislative history of 11 U.S.C, § 108 and cases from outside this Circuit, the District Court concluded that § 108 applies “only to trustees or Chapter 11 debtors in possession” and does not apply to a Chapter 13 debtor, such as Barnes. (App.l.) We agree that this argument was waived and therefore the District Court did not need to determine whether § 108 applies to a Chapter 13 debtor seeking to extend the time for statutory notice of her rescission. We note, however, that in In re Connors, 497 F.3d 314, 321 (3d Cir.2007), we did apply § 108(b) to extend a statutory grace period in the context of a petition filed by a Chapter 13 debtor. Accordingly, although we affirm the District Court’s judgment in this matter, we do not endorse its conclusion regarding the application of § 108 to a Chapter 13 debtor.
We have considered the Plaintiffs’ other arguments on appeal and find them to be without merit. For the foregoing reasons, and with the caveat noted regarding the potential application of § 108 to a Chapter 13 debtor, we will affirm the District Court.
. The Bankruptcy Court had jurisdiction under 28 U.S.C. § 1334. The District Court had jurisdiction over the appeal from the Bankruptcy Court pursuant to 28 U.S.C. § 158(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The bankruptcy petition was originally filed under Chapter 7 of the Bankruptcy Code. Upon Barnes' motion, the case was converted on January 21, 2003 to one under Chapter 13. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477709/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Leslie E. Woghiren was found deporta-ble by an Immigration Judge (“IJ”), after which he filed an appeal with the Board of Immigration Appeals (“BIA”), which dismissed his appeal. In this petition for review of the BIA’s decision, Woghiren relies upon an argument that he did not present to the BIA. Because Woghiren did not exhaust the claim he raises herein before the BIA, we conclude that we lack jurisdiction over his claim and will dismiss his petition for review.
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of the issue raised on appeal. Woghiren is a citizen and native of Nigeria who was admitted to the United States on a travel visa in 1986. Thereafter, he became a conditional resident as a result of having married a United States citizen. He filed a Form 1-751 petition, seeking to remove the conditions of his residency, but in 1991 the Immigration Service denied his petition on account of Woghiren’s failure to prove that the marriage was a bona fide “proper marriage.” 8 U.S.C. § 1186a(d)(l)(A).
Later that year, Woghiren was granted advance parole in order to travel to Nigeria, but upon his return, he was placed in exclusion proceedings for having entered the United States without valid entry documents. This placement was apparently in error, because at the time, Woghiren’s appeal of his 1-751 petition was still pending, and he was thus not excludable. Upon Woghiren’s objection to the IJ on this basis, the exclusion proceedings were terminated. The INS again placed Woghi-*386ren in exclusion proceedings in 1996, but these proceedings were likewise terminated.
In March 1997, the INS charged Woghi-ren with being deportable pursuant to 8 U.S.C. § 1227(a)(l)(D)(i) (providing for the deportability of a conditional permanent resident whose conditional residency has been terminated), but the IJ once again terminated the proceedings because Wogh-iren had filed a second 1-751 application. This application was denied in 2004 for substantially the same reason underlying the denial of Woghiren’s first 1-751 — that is, Woghiren had again failed to prove that his marriage was bona fide. See 8 U.S.C. § 1186a(d)(l)(A).
Following the denial of Woghiren’s second 1-751, the Government sought to re-calendar the deportation proceedings. At a hearing before the IJ, Woghiren, uninformed by counsel or the IJ that he might be able to pursue the remedy of suspension of deportation, conceded that he was deportable. The IJ ordered that Woghiren voluntarily depart the United States by July 2006. Woghiren did not so depart, and instead, in July 2007, filed a motion to reopen the matter, alleging that his prior counsel had been ineffective because he had failed, inter alia, to pursue the remedy of cancellation of removal. The IJ denied the motion, concluding (1) that it was untimely and (2) that cancellation of removal was not called for because Woghiren had not demonstrated the requisite level of hardship to qualify for cancellation of removal.
Woghiren appealed the IJ’s decision to the BIA, contending that during the re-calendared deportation proceedings, the IJ violated his obligation to inform Woghiren of his potential eligibility for cancellation of removal. See 8 C.F.R. § 1240.11(a)(2) (“The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing, in accordance with the provisions of § 1240.8(d).”) Significantly, in his appeal to the BIA, Woghiren made no mention of the separate remedy for which he now contends he was eligible — ie., suspension of deportation. The BIA dismissed the appeal, explaining that although immigration judges have the duty to inform people appearing before them of their potential eligibility for relief, see id., the remedy Woghiren claimed that the IJ should have informed him of — cancellation of removal — was not available in a deportation proceeding such as Woghiren’s. Following the BIA’s dismissal of his appeal, Woghi-ren petitioned this Court for review.
II.
Under the INA, we may review the BIA’s decision in this case only if Woghi-ren “has exhausted all administrative remedies available to ... [him] as of right.” 8 U.S.C. § 1252(d)(1). We have interpreted this statutory provision to require “an alien ‘to raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim,’ ” and have held that this exhaustion requirement “is a jurisdictional rule.” Hoxha v. Holder, 559 F.3d 157, 159 & n. 3 (3d Cir.2009) (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir.2003)) (emphasis added).
The rule is not an onerous one. We have explained that “so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies.” Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir.2008) (quoting Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.2006)). In Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004), for example, we concluded that *387where an immigration petitioner failed to argue a straightforward issue in a brief submitted to the BIA, but had put the BIA on notice of the. issue by presenting it in his notice of appeal, the claim was sufficiently exhausted. We explained that “if the issue is not complex, no brief is required as long as the notice of appeal does precisely what it is intended to do — place the BIA on notice of what is at issue.” Id. at 368; see also Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.2005).
At the same time, although the exhaustion requirement is not to be applied “in a draconian fashion,” Lin, 543 F.3d at 121, an immigration petitioner is at minimum required to “alert the Board to the issue he seeks to raise” before this Court. Abdulrahman, 330 F.3d at 595. Where petitioners have failed to provide the Board with the requisite notice, we have not hesitated to dismiss the unexhausted claims. See id.; cf. Lin, 543 F.3d at 122 (concluding that the petitioner failed to exhaust a claim by putting BIA on notice, but exercising jurisdiction because the Board considered the issue sua sponte). The question is whether the petitioner has “set forth sufficient facts and law to inform the BIA of the basis for the appeal” so as to give the Board the “opportunity to resolve issues raised before it prior to any judicial intervention.” Hoxha, 559 F.3d at 163 (citation omitted).
Having reviewed Woghiren’s notice of appeal and the brief he submitted to the BIA, we conclude that Woghiren failed to give the BIA notice of his claim that the IJ failed to inform him of his potential eligibility for suspension of deportation, and that he therefore failed to exhaust the claim he seeks to argue before us. It is true, as Woghiren argues, that both his appeal to the BIA and his argument reference the same federal regulation — 8 C.F.R. § 1240.11(a)(2), which requires immigration judges to inform persons in immigration proceedings of them potential eligibility for relief.
We agree with the Government, however, that Woghiren’s argument in this appeal, as to how the IJ ran afoul of 8 C.F.R. § 1240.11(a)(2), is sufficiently different from the § 1240.11(a)(2) issue raised before the BIA that Woghiren cannot be said to have “alert[ed] the Board to the issue he [now] seeks to raise.” Abdulrahman, 330 F.3d at 595. In his appeal before the BIA, Woghiren contended that the IJ erred by failing to inform him of his possible eligibility for cancellation of removal, see 8 U.S.C. § 1229b(b), an argument the BIA rejected on the grounds that Woghi-ren was not eligible for cancellation. Now, for the first time, Woghiren contends that the IJ should have informed him of his potential eligibility for a different form of relief, suspension of deportation. See 8 U.S.C. § 1254 (1996). As we have recognized, cancellation of removal and suspension of deportation are distinct avenues of relief, applicable in different settings and with different requirements. See, e.g., Hernandez v. Gonzales, 437 F.3d 341, 345 (3d Cir.2006). Neither the words “suspension of deportation” nor the applicable statutory provision appear in any of the materials Woghiren submitted to the BIA. We agree with the Government that “[without petitioner actually presenting his argument to the Board regarding this entirely different form of relief, the Board can hardly be faulted for not addressing the possible error petitioner now asserts was committed below.” (Gov’t Br. 17.) While the administrative exhaustion requirement is not onerous, we certainly cannot find it satisfied where a petitioner’s submissions to the BIA are entirely silent as to the precise issue raised before us. See Abdulrahman, 330 F.3d at 595. Because Woghiren did not exhaust the claim he seeks to raise herein, we lack jurisdiction to further entertain his petition for review. See Hoxha, 559 F.3d at 159 n. 3.
*388III.
For the foregoing reasons, we will dismiss the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477711/ | *389OPINION OF THE COURT
FUENTES, Circuit Judge:
Following a trial by jury, Appellant Derrick Steplight was convicted on November 13, 2006 of possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1). On January 19, 2007, Steplight was sentenced to 204 months imprisonment and five years supervised release and fined $1,500. Steplight filed a timely notice of appeal and was appointed counsel. His appointed counsel has filed a motion to withdraw representation and has submitted a supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We will allow the motion to withdraw and will affirm Step-light’s plea and sentence.1
I.
Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case. Appellant Derrick Steplight was pulled over when officers suspected his car was in violation of a Pennsylvania law prohibiting excessive window tinting. One of the uniformed police officers who pulled his car over testified that, when asked to produce his license and registration, Steplight covered his waist with his hand. The officer believed Steplight was possibly hiding a weapon and asked him to step out of the car. Steplight instead drove off. He and his passenger, his nephew Shamir Steplight, subsequently abandoned the car and fled on foot. According to the arresting police officer, each of them threw a gun on the ground as he ran. They were both apprehended and arrested for unlawful possession of a firearm. Appellant was subsequently indicted in federal court on the charge of possession of a firearm by a convicted felon.
Steplight’s motion to suppress evidence, namely the firearm attributed to him, was denied and he was found guilty after a jury trial. The District Court granted a downward variance from the guidelines range of 235-293 months and sentenced him to 204 months in prison, five years supervised release, and a $1,500 fine and imposed a $100 special assessment. The court also granted Steplight’s retained trial counsel’s motion to withdraw.
II.
Steplight’s appointed attorney, Michael J. Kelly, has filed a motion to withdraw and, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), has prepared a brief in support of this motion. See Third Circuit Rule 109.2(a) (outlining process for considering a motion to withdraw representation). Under Anders, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it” he may be granted permission to withdraw after advising the court of this and submitting “a brief referring to anything in the record that might arguably support the appeal.” 386 U.S. at 744, 87 S.Ct. 1396. The court must then conduct its own “full examination of all the proceedings, to decide whether the case is wholly frivolous.” Id.
We have outlined a two-step inquiry that must be completed when counsel submits an Anders brief: “(1) whether counsel adequately fulfilled the [Third Circuit] rule’s 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). We “confine our scrutiny of the record to those portions of the record identified by an adequate Anders brief ... [and] those *390issues raised in Appellant’s pro se brief.” Id. at 801. Counsel’s brief was properly-served upon Steplight, who was entitled to file his own pro se brief in response. Step-light did not do so. The Government, as required, filed a brief in response, supporting counsel’s motion to withdraw.
In preparing his Anders brief, Steplight’s attorney conducted a thorough examination of the record to determine whether there were any non-frivolous issues for appeal. See id. (“The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined the record in search of appealable issues, and (2) to explain why the issues are frivolous.”). Counsel’s brief discussed three possible issues for appeal and adequately explained why each lacked merit: (1) whether sufficient evidence was presented at trial to support the jury’s verdict; (2) whether the District Court erred in denying Steplight’s motion to suppress; and (3) whether there were any sentencing errors.
Having independently examined the issues raised by Steplight’s counsel, we agree that they lack merit and that no non-frivolous issues for appeal exist. First, we cannot say that the evidence presented at trial was insufficient for a reasonable jury to find Steplight guilty. The parties stipulated at trial to two of the three elements of unlawful possession of a firearm by a convicted felon. Specifically, they stipulated that Steplight was convicted of a felony and that the firearm had traveled in interstate commerce. The final element of the crime was Steplight’s possession of the firearm. The two police officers who pulled over and arrested Step-light testified that they saw him throw a firearm to the ground as he ran away and that they immediately recovered it. Contrary testimony was presented from a neighbor and from Shamir Steplight. The latter testimony was rebutted by Shamir Steplight’s parole officer, who testified that he had told her that his family was pressuring him to take responsibility for the firearm his uncle was charged with possessing. No evidence was presented that would discredit the police officers’ testimony.
An appellant challenging the sufficiency of the evidence faces a “very heavy burden.” United States v. Leahy, 445 F.3d 634, 657 (3d Cir.2006). “[W]e must view the evidence in the light most favorable to the government and will sustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal citations and quotations omitted). Given the police officer’s testimony, the jury clearly had a reasonable basis for finding that Steplight possessed the firearm, the only non-stipulated element of the charged crime. Accordingly, we agree that there is no non-frivolous basis for claiming that the evidence was insufficient.
Second, the District Court did not err in refusing to grant the motion to suppress, which argued that the police lacked reasonable suspicion to stop Step-light’s car and had no right to order him to step out of his car. See United States v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006) (holding that “reasonable suspicion standard applies to routine traffic stops”).
Steplight acknowledged during his testimony at the suppression hearing that the backseat windows of his car were tinted. He argued that another officer — who had previously pulled him over for excessive tinting, causing him to remove the tinting on the front windows — led him to believe that the remaining tinting, on the rear windows, was not illegal. This argument, that only the rear windows were tinted, does not render unreasonable the officers’ *391decision to stop Steplight because they believed his tinting to be illegal. In light of the arguments made at the suppression hearing, as well as Steplight’s concession that his rear windows were tinted, we find that no non-frivolous argument can be made that the District Court erred in finding the police had reasonable suspicion to stop his car.
Nor do we find any basis for finding error in the District Court’s conclusion that the police officers had a sufficient basis for ordering him to step out of the car, an order based upon the police officer’s suspicion that Steplight was concealing a weapon. A police officer executing a lawful traffic stop “may exercise reasonable superintendence over the car and its passengers” and “may order the driver out of the vehicle without any particularized suspicion.” United States v. Bonner, 863 F.3d 213, 216 (3d Cir.2004). Accordingly, there is no non-frivolous claim regarding the District Court’s ruling on this issue.
As for the third and final issue identified in the Anders brief, there is no non-frivolous basis for challenging Step-light’s sentencing. The District Court followed the three-step sentencing process we outlined in United States v. Gunter, 462 F.3d 237 (3d Cir.2006). A court must (1) calculate the Guidelines sentence; (2) rule on any motions for departure, stating the basis for its decisions; and (3) consider the factors in 18 U.S.C. § 3553(a) to determine whether to exercise its discretion and grant a variance. A review of the sentencing transcript indicates the District Court carefully followed this procedure. Due to his prior convictions, Steplight faced a mandatory minimum of 15 years (180 months). His guideline range was 235 to 293 months. The court granted a downward variance and sentenced him to 204 months incarceration. We find no basis for arguing this sentence was unreasonable.
For the foregoing reasons, we grant counsel’s motion to withdraw and affirm Steplight’s conviction and the sentence imposed by the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477717/ | OPINION
PER CURIAM.
Margarita Moshkovich1 petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on June 1, 2009. For the reasons that follow, we will deny 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 our analysis. Moshko-vich is a native and citizen of Moldova. She entered the United States illegally in 1994 and was placed in removal proceedings. Moshkovich then relocated from New Jersey to California. In March 1995, Moshkovich provided the Immigration Court with notice of her change of address *398and requested a change of venue to California. A.R. 95. On April 17, 1995, the Immigration Judge (“IJ”) sent a letter to Moshkovich at the California address advising that the change of venue request was defective and that a failure to appear at a scheduled hearing could result in issuance of an in absentia deportation order. A.R. 89.
On April 27, 1995, Moshkovich responded to the IJ’s letter, again asking for a change of venue. A.R. 105. The IJ responded by sending an order, via certified mail at the California address, informing Moshkovich that the change of venue motion was denied because it was defective. A.R. 83. The order also informed Mosh-kovich that her hearing was scheduled for June 20, 1995, in Newark, New Jersey, and that a deportation order could issue at that time. Id. Moshkovich signed the certified mail return receipt. A.R. 91. The IJ also sent Moshkovich a notice of hearing, stating that the master hearing would take place on June 20, 1995, in Newark, New Jersey. A.R. 94.
Shortly before the scheduled hearing, on June 9,1995, Moshkovich submitted another motion to change venue, this time through counsel. A.R. 85. The counseled venue motion was also defective. The IJ denied it and sent notice of the denial both to Moshkovich and her counsel. A.R. 84. The IJ’s order again stated that the hearing was scheduled for June 20, 1995. Id.
Moshkovich failed to appear at the June 20, 1995, hearing. The IJ issued an in absentia deportation order. A.R. 78-80. The order reflects that it was sent to Moshkovich’s address in California2 and to her counsel. A.R. 78.
Moshkovich married a legal permanent resident in 2000 and gave birth to a United States citizen child in 2001. In March 2001, her husband filed an 1-130 visa petition on Moshkovich’s behalf. The petition was approved in January 2008. A.R. 63. Shortly thereafter, Moshkovich and her husband attended an interview with an immigration officer. When the officer discovered the 1995 in absentia removal order against her, Moshkovich was arrested and placed under an order of supervision.
In February 2008, Moshkovich filed a counseled motion to reopen with the IJ to seek adjustment of status based upon the approved 1-130 visa petition. In her motion, Moshkovich argued that her prior counsel had been ineffective.
The IJ concluded that Moshkovich’s motion to reopen was incomplete because she failed to provide an affidavit in support and she did not specify a way in which her prior counsel had been ineffective. Although Moshkovich argued that prior counsel failed to provide the immigration court with the proper change of address form, the IJ noted that Moshkovich’s address had been changed with the Immigration Court. The IJ also found that Mosh-kovich did not explain her delay of more than a decade in pursuing reopening or her failure to appear in person at the June 1995 hearing. Finally, the IJ concluded that the record lacked sufficient evidence to determine whether Moshkovich was pri-ma facie eligible for adjustment of status. The IJ therefore denied the motion to reopen.
On June 1, 2009, the BIA affirmed the IJ’s decision and dismissed Moshkovich’s appeal. Among other things, the BIA concluded that, to the extent Moshkovich claimed her failure to appear was due to exceptional circumstances (ie., the ineffective assistance of her prior counsel), her *399motion to reopen was untimely, see Matter of A-A- 22 I. & N. Dec. 140 (BIA 1998), and her lack of diligence (demonstrated by more than ten years’ delay in bringing her motion) did not warrant equitable tolling. The BIA concluded that Moshkovieh provided no evidence of ineffective assistance of counsel because her address had been properly changed with the immigration comb, and Moshkovieh had been sent proper notice of the June 20,1995, immigration hearing by certified mail to her California address. The BIA agreed with the IJ’s conclusion that discretionary sua sponte reopening was not warranted. See 8 C.F.R. § 1003.2(a).
Moshkovieh filed a timely pro se petition for review. She has since retained counsel.
II. Analysis
To seek rescission of an in absentia removal order, an individual may file a motion to reopen. See INA § 240(b)(5)(C) [8 U.S.C. § 1229a(b)(5)(C) ]. The motion must be filed within 180 days of the removal order and must demonstrate “exceptional circumstances,” unless, inter alia, it is based upon lack of notice. See INA §§ 240(b)(5)(C)(i), (ii) [8 U.S.C. §§ 1229a(b)(5)(C)(i), (ii) ]. This Court reviews the BIA’s findings of fact for substantial evidence and the decision to reject the motion to reopen for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.2002). The BIA’s decision is entitled to “broad deference,” see Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003), and will be upheld unless it was “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). As the Supreme Court has stated, the regulations “plainly disfavor” motions to reopen. INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Moshkovieh contends that the ineffectiveness of her prior counsel was an “exceptional circumstance” warranting reopening. See INA § 240(e)(1) [8 U.S.C. § 1229a(e)(l) ]. However, her motion to reopen on these grounds should have been filed within 180 days of the IJ’s June 23, 1995, removal order. See INA § 240(b)(5)(C)© [8 U.S.C. § 1229a(b)(5)(C)(i) ]. Substantial evidence supports the BIA’s conclusion that Mosh-kovich’s February 2008 motion to reopen was untimely. See A.R. 04 (BIA Decision at 2).
Under certain circumstances, ineffective assistance of counsel may provide a basis for equitably tolling the 180-day limitation period for filing a motion to reopen. However, even without regard to whether her prior counsel was ineffective,3 the fact remains that Moshkovieh hired prior counsel to change the venue of her immigration proceedings in 1995 and did not follow up with prior counsel or the Immigration Court for approximately thirteen years. It is simply unreasonable that she allowed so many years to pass without making any effort to determine the status of her immigration proceedings. The BIA did not err in concluding that Moshkovich’s delay of more than a decade before filing her motion to reopen reflects that she did not act diligently and is therefore not entitled to equitable tolling of the limitations period.4 *400See A.R. 04 (BIA Decision at 2); see also Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d Cir.2005) (for equitable tolling, petitioner must demonstrate diligence in pursuing the ineffectiveness of counsel claim).
The 180-day limitation period does not apply where a motion to reopen is based upon a lack of notice of the scheduled hearing.5 See INA § 240(b)(5)(C)(ii) [8 U.S.C. §§ 1229a(b)(5)(C)(ii) ] (a motion to reopen based on lack of notice of a proceeding may be filed “at any time”). To establish a lack of notice, Moshkovich would have to overcome a “strong presumption” that she was served effectively. See Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 278 (3d Cir.2007). The record reflects that the IJ sent notice to Moshkovich’s correct California address via certified mail on several separate occasions. See A.R. 83, 84, 94. Particularly in light of the signed certified mail receipt, see A.R. 91, substantial evidence supports the conclusion that Moshkovich failed to overcome the strong presumption of proper service.6
Finally, in her opening brief, Moshkovich argues at length that her family will experience hardship if she is deported. While we are sympathetic to the difficulties that deportation may cause to an individual’s family members, this does not provide a basis for concluding that the BIA abused its discretion in denying the motion to reopen.7
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. Petitioner employs her married surname, Moshkovich. For purposes of this opinion, we will do the same.
. In June 1995, Moshkovich informed the Immigration Court that she had moved to a new California address. A.R. 88. The IJ's deportation order listed both of Moshkovich's California addresses as well as her counsel's address. A.R. 78.
. The BIA concluded that Moshkovieh failed to make a valid claim of ineffective assistance of counsel. See A.R. 04 (BIA Decision at 2); see also Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988) (setting forth requirements); Lu v. Ashcroft, 259 F.3d 127, 133 (3d Cir. 2001) ("We generally agree that the BIA’s [Lozada decision] is not an abuse of the Board's wide-ranging discretion.”). Indeed, Moshkovieh conceded before the BIA that she did not comply with the requirements for raising an ineffective assistance claim. See A.R. 08 (brief to BIA).
. Moshkovieh argues that her efforts at contacting the Immigration Court in 1995 reflect *400her "ongoing good faith" and lack of sophistication, see Petitioner's Reply Brief at 5-6, and the BIA's failure to more favorably consider these aspects of her claim resulted in an abuse of discretion. We disagree. We see no record evidence of "ongoing good faith” and, even accepting her alleged lack of sophistication, the record reflects that Moshkovich took absolutely no action to learn of the status of her immigration proceedings between 1995 and 2008.
. In her Reply Brief, Moshkovich argues a lack of notice of the June 1995 order denying her venue motion. See Petitioner's Reply Brief at 8. This does not address the issue of notice of the proceeding at which she failed to appear. See INA § 240(b)(5)(C)(ii) [8 U.S.C. §§ 1229a(b)(5)(C)(ii) ].
. In her Reply Brief, Moshkovich states that "it is undisputed that the Immigration Court ... mailed the [June 13, 1995 order denying the venue change motion] to Petitioner's old address.” Petitioner’s Reply Brief at 7; A.R. 84. Even if this is accurate, this does not establish an abuse of discretion because it does not address the fact that the in absentia removal order was sent to Moshkovich’s old address, new address, and her counsel’s address, see A.R. 78, and Moshkovich nevertheless failed to pursue reopening until more than a decade later.
.We note that Moshkovich has appended various documents to her opening brief that do not appear in the administrative record. As the Government correctly argues, we may not consider the new submissions. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)]; Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”). Accordingly, we have reached our decision by limiting our review to the parties' briefs and the certified administrative record. Moreover, to the extent Moshkovich has offered these documents in an effort to establish the equities in her favor and thereby dispute the BIA's decision to deny discretionary sua sponte reopening of her case (an issue that is not clear from her briefs), we lack jurisdiction to review such a claim. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) ("[T]his court is without jurisdiction to review a decision declining to exercise [the BIA's sua sponte discretion] to reopen or reconsider the case."). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477721/ | OPINION
PER CURIAM
Petitioner Cal Jin Hua, a native and citizen of China, seeks review of a final order of removal. Hua claims that she suffered past persecution by government officials through their enforcement of Chi*405na’s coercive family planning policy. She fears future persecution if removed to China, based on her intention to have more children. Because the Immigration Judge’s (“IJ”) adverse credibility determination is supported by substantial evidence, we will deny the petition for review.
I.
Hua entered the United States at an unknown place on an unknown date, without having been admitted or paroled after inspection by DHS. She applied for asylum in February 2007, after a Notice to Appear had issued. The IJ denied Hua’s request for asylum as untimely, but allowed her requests for withholding of removal and Convention Against Torture (“CAT”) protection to proceed. Hua made three arguments in support of her overarching claim that she had been persecuted in the past through enforcement of China’s coercive family-planning policy: 1) she was subjected to two forced abortions; 2) she was implanted with two IUDs against her will; and 3) she and her husband were forced to sign a one-child contract with the government.
The IJ made an adverse credibility determination, found that Hua had failed to corroborate any material element of her story, and denied all requested relief. The IJ noted in her decision that Hua’s testimony was “difficult to follow,” and that “it seems that [she] has forgotten things over time.” The IJ opined that Hua “repeatedly enhanced her claim” during the hearing: “[s]he has decided that she suffered two forced abortions, not one, has decided that she [was] forced to have inserted two IUD’s, not one.” The IJ also noted that although Hua testified to having an IUD inserted against her will, Hua had chosen not to remove the IUD while in the United States. That, in addition to Hua’s liver disease, hepatitis, and need for medical therapy, left the IJ unconvinced that Hua actually planned to have another child.
The Board of Immigration Appeals (“BIA”) dismissed Hua’s appeal. It first noted that Hua had failed to challenge the IJ’s finding that her asylum application was untimely. The BIA next determined that the IJ’s adverse credibility finding was not clearly erroneous. The BIA specifically deferred to the IJ’s findings that Hua had “repeatedly enhanced her claim, creating testimony as she moved through the hearing,” and also that Hua “had difficulty remembering when the abortions occurred and that the testimony was difficult to follow.” The BIA thus concluded that the IJ’s “demeanor-like observations,” coupled with the testimonial inconsistencies, “constitute significant evidence of a lack of credibility in the respondent’s asylum claim under the REAL ID Act.” The BIA also determined that Hua had not met her burden for relief under the CAT. Hua appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir.2001). “[W]hen 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 BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review adverse credibility determinations for substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). Because Hua filed her asylum application after the enactment of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is based need not go the heart of her claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n. 5 (3d Cir.2008). Rather, the REAL ID Act permits credibility determinations to be based on observations of Hua’s demeanor, the plausibility of her story, and on the consistency of her state*406ments. See 8 U.S.C. § 1158(b)(l)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n. 7 (3d Cir.2006).
III.
We conclude that Hua is ineligible for statutory withholding of removal because the adverse credibility determination in this case is supported by substantial evidence.1 The BIA “held that Petitioner lacked credibility because ‘she repeatedly enhanced her claim, creating testimony as she moved through the hearing.’ ” We agree. There are several material inconsistencies in and between Hua’s testimony and asylum application regarding both the number of forced abortions and IUD insertions, and the dates of those abortions and insertions. Moreover, Hua’s testimony concerning her husband’s employment with the military, as it related to the crux of Hua’s claim, was hazy and inconsistent. Finally, we agree with the BIA that Hua’s apparent voluntary use of the IUD conflicts with her claim that it was forcibly inserted by the Chinese government.
Hua does not directly contest the IJ’s findings regarding the significant inconsistencies between her testimony and asylum application. Instead, Hua blames the material omissions from her asylum application (the number and dates of the alleged forced abortions and IUD insertions) on a “memory lapse.” Hua alternatively argues that because the asylum application was written in English, she was unfamiliar with its contents. Ironically, the latter argument is itself inconsistent with Hua’s testimony at the removal hearing:
IJ: All right and then your application for asylum, is that your signature?
HUA: Yes.
IJ: Do you understand ... everything in these papers[?][H]as it been explained to you?
HUA: Yes.
IJ: And is everything true and complete in every respect?
HUA: Yes.
(AR 144.)2 We agree with the IJ and BIA that both explanations are deficient.
We will reverse the findings of the BIA as to Hua’s credibility only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). No such evidence is present here. Accordingly, we will deny the petition for review.3
.The only relief Hua appears to be pursuing is withholding of removal under 8 U.S.C. § 1231(b)(3). Hua does not challenge the IJ's finding that her asylum application was untimely, correctly acknowledging that we would not have jurisdiction to review that claim if she had raised it on appeal. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir.2006). Hua also does not challenge the agency’s determination that she is ineligible for CAT relief and, as a result, she has waived that line of argument. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir.2004).
. We are unpersuaded by the explanation for that inconsistency in Hua's reply brief.
. Given our reasoning in support of this disposition, an analysis of Hua’s arguments concerning corroborative evidence is unnecessary. We note only that, the Government's disagreement with Toure v. Att’y Gen., 443 F.3d 310 (3d Cir.2006), notwithstanding, that case remains binding precedent in this Circuit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477723/ | OPINION
PER CURIAM.
Yevgeniy Churilov petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. The Government has moved to dismiss the petition in light of Churilov’s voluntary return to Russia. For the reasons that follow, we will grant the Government’s motion in part and deny it in part. Furthermore, we will dismiss Churilov’s petition in part and deny it in part.
I.
Because the background of this case is familiar to the parties, we discuss it only briefly here. Churilov, a native and citizen of Russia, entered the United States in November 2000. In May 2004, he was placed in removal proceedings for having entered the United States without being admitted or paroled. He conceded remov-ability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In support of his application, he argued that he feared returning to Russia because he had suffered persecution on account of his membership in a political group called the Cossacks.
In May 2007, after a hearing on the merits, the Immigration Judge (“IJ”) denied Churilov’s application. The IJ concluded that Churilov’s asylum claim was time-barred and that, in any event, it suffered from “issues of incredibility and implausibility.” (See Decision of IJ at 13.) The IJ also concluded that Churilov had failed to show that he was entitled to withholding of removal or CAT relief.
On appeal, the BIA affirmed the IJ’s ruling that Churilov’s asylum claim was time-barred. The BIA also concluded that the IJ did not err in denying Churilov’s requests for withholding of removal and CAT relief; however, the BIA did not rely on the IJ’s credibility determination. Instead, the BIA considered the merits of Churilov’s claims and concluded that they failed to satisfy the standards for withholding of removal and CAT relief, respectively. Finally, the BIA rejected Churilov’s argument that the transcript of the hearing before the IJ was poorly translated, noting that Churilov “has not directed our attention to a single specific error in the translation, nor has he explained what was misunderstood or omitted by the translator that could have affected the outcome in this matter.”1 (BIA Decision at 3.)
Churilov timely petitioned this Court to review the BIA’s decision. At the time he filed his petition, he moved for a stay of removal, which we granted as unopposed in April 2009. In October 2009, after the parties had submitted their respective briefs, the Government informed us that Churilov had voluntarily returned to Russia in September 2009. In light of his departure, the Government has moved to dismiss the petition.
II.
In support of its motion to dismiss, the Government argues that there are no longer any issues over which we have jurisdiction because: (1) we lack jurisdiction to review the BIA’s decision affii’ming the IJ’s denial of Churilov’s asylum claim as time-barred; and (2) Churilov’s decision to voluntarily return to Russia has rendered his "withholding of removal and CAT claims moot. Although the Government is correct that *409we lack jurisdiction to review the denial of Churilov’s asylum claim, see 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003), his return to Russia has not mooted his withholding of removal and CAT claims. See Gomez-Zuluaga v. Att’y Gen. of the U.S., 527 F.3d 330, 339 n. 4 (3d Cir.2008) (“Because a final order of removal creates sufficient collateral consequences, [petitioner’s removal does not moot her petition for review” (internal quotation marks and citation omitted)); see also Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1171 (9th Cir.2003) (noting that the court may consider a petition for review after the alien has voluntarily departed the United States). Accordingly, we will grant the Government’s motion to dismiss as- to Churilov’s asylum claim and deny the motion as to his claims for withholding of removal and CAT relief. We now turn to the merits of his challenge to the denial of his withholding of removal and CAT claims.2
III.
‘Where the BIA renders its own decision and does not merely adopt the opinion of the IJ, we review the BIA’s decision, not that of the IJ.” Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230 (3d Cir.2008). We review the factual findings underlying the BIA’s denial of withholding of removal and CAT relief for substantial evidence. See Tarrawally, 338 F.3d at 184. Under this deferential standard of review, we must uphold the BIA’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).
To qualify for withholding of removal, an alien must establish that it is more likely than not that his “life or freedom would be threatened in th[e] country [of removal] because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” See 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. To meet this standard, the alien must show either (1) past persecution, which creates a rebuttable presumption of future persecution; or (2) that it is more likely than not that he will suffer future persecution if removed. See 8 C.F.R. § 208.16(b). “Persecution” consists of “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). To be eligible for CAT relief, an alien must show that it is more likely than not that he will be tortured if removed to the country in question. 8 C.F.R. § 208.16(c)(2). “Torture” consists of the intentional infliction of “severe pain or suffering ... by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Churilov has not shown that a lack of substantial evidence compels vacating the BIA’s denial of his claims for withholding of removal and CAT relief. First, his argument challenging the IJ’s adverse credibility determination is irrelevant, as the BIA’s decision did not turn on his credibility. Second, with regards to the claim for withholding of removal, the past events to which Churilov testified do not constitute persecution, as that term is defined in Fatin, 12 F.3d at 1240. Nor has Churilov demonstrated that he will more likely than not face future persecution or, in relation to his claim for CAT relief, torture in Russia. Finally, to the extent he argues that errors in the transcription of his testimony bear on the merits of his *410withholding of removal and CAT claims, he has failed to demonstrate that testimony not reflected in the transcript changes the outcome of this case.
In light of the above, we will dismiss the petition for review in part and deny it in part.
. It appears that the issue was actually one of flawed transcription, not flawed translation, as there are portions of the transcript that were transcribed as "indiscernible.”
. We have jurisdiction over these claims pursuant to 8 U.S.C. § 1252(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477727/ | OPINION OF THE COURT
PER CURIAM.
An Jun Liu, a native and citizen of the People’s Republic of China, seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition for review.
Because the parties are familiar with the background, we merely summarize for purposes of this non-precedential decision. Liu arrived in the United States in 2002 and was admitted as a conditional resident on the basis of her marriage to a United States citizen. In 2006, the Department of Homeland Security filed a Notice to Appear and terminated Liu’s conditional status after her “husband” admitted that the marriage was a fraud. Liu conceded before the Immigration Judge (“IJ”) that she was removable due to the fraudulent marriage. In her 2007 application for asylum, she claimed past persecution in China based on a forced sterilization procedure. Liu also sought withholding of removal and relief under the Convention Against Torture (“CAT”).
The IJ denied the asylum application as time barred, determined that Liu lacked credibility, and denied withholding of removal and CAT relief. The BIA agreed that the asylum application was untimely filed, and it affirmed the denial of withholding of removal because it found no error in the adverse credibility determination. The BIA also denied CAT relief. Liu timely filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252(a)(1).1 We review agency factual findings, including an adverse credibility determination, under the deferential substantial evidence standard, which asks only that the findings be 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) (citing 8 U.S.C. § 1105a(a)(4)); see Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Such findings are deemed “ ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Under the provisions of the REAL ID Act, which the BIA correctly noted are applicable here, the IJ, after “[cjonsidering the totality of the circumstances, and all relevant factors,” may base an adverse credibility determination
*414on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(l)(B)(iii).
To qualify for withholding of removal, Liu had to show that she “more likely than not” will face persecution if returned to China. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Liu, as noted, sought withholding based on a claim that she was persecuted in the past due to forced sterilization. A successful showing of past persecution would have entitled Liu to a re-buttable presumption that she faces future persecution. See 8 C.F.R. § 208.16(b)(l)(i). The BIA, however, denied -withholding on the basis of the IJ’s adverse credibility determination.
Upon a review of the record, we find substantial evidence to support the adverse credibility determination, and, therefore, the denial of withholding of removal. The BIA offered specific and cogent reasons for rejecting Liu’s credibility, including the following: (1) despite Liu’s claim that she was forcibly sterilized in China, the medical form for her visa in 2001 provided that she had not been pregnant, made no mention of sterilization, and had no marks on the abdomen or genitalia; (2) Liu failed to mention in either her asylum application or on direct examination that she frequently was sick as a result of her alleged sterilization, but only attested to that fact in response to the IJ’s questioning; (3) Liu admitted that she previously gave false testimony about her marriage and admitted that her husband’s application was untrue, despite the fact that she had contended at the beginning of the hearing that the filings were true and accurate; and (4) many documents that Liu submitted were deemed suspect because of conflicting information, and the IJ found that there were inconsistencies between Liu’s testimony and her documents that she could not adequately explain.2
Given the inconsistencies in the evidence, Liu’s willing participation in a fraudulent marriage to gain entry to the United States, and her otherwise unreliable testimony before the IJ, we cannot conclude that any reasonable adjudicator would be compelled to find Liu credible.3
*415Liu attempts in her brief to cast doubt upon several of the grounds cited to support the adverse credibility determination. She suggests, for example, that the medical form for her visa in 2001 “is not a particularly trustworthy document” because its questions are “ambiguous” and thus Liu’s answers to those questions are open to more than one interpretation. Appellant’s Br. at 12. That there can be other plausible interpretations of the evidence, however, is not enough to overturn the adverse credibility finding. See, e.g., Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”). We fully have considered Liu’s arguments regarding the evidence but conclude that her arguments plainly do not compel a conclusion contrary to that reached by the BIA.
For the foregoing reasons, we will deny the petition for review.
. Liu does not argue her asylum or CAT claims in her brief to this Court. Her sole challenge on appeal is to the denial of withholding of removal based on the adverse credibility determination. Accordingly, we limit our analysis to that issue.
. For example, the IJ found inconsistency regarding a fine that was purportedly levied against Liu for violating family planning policy. Liu claimed that she was unable to pay the entire fine, but a document that she submitted purported to show that the balance was paid in full in 1994. (J.A. 271.) Yet Liu also submitted another, conflicting document reflecting an outstanding balance as of 2001 for the birth of a second child. (J.A. 274.) As the government correctly points out, the conflicting information contained in these two documents was never explained. Respondent’s Br. at 18.
. While this Court has yet to address whether the REAL ID Act's credibility standard, 8 U.S.C. § 1158(b)(l)(B)(iii), is consistent with due process — an issue not raised on this appeal — we are satisfied that Liu's challenge to the BIA’s adverse credibility finding would fail under the pre-REAL ID Act standard, as well. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477729/ | OPINION
PER CURIAM.
Marian Hassan Reda, a citizen of Lebanon, last entered the United States in 1990 *417as a visitor. In 2003, the Government charged her as removable for overstaying her visa. Reda conceded the charge, and applied for asylum, withholding, and protection under the Convention Against Torture (“CAT”).
The first Immigration Judge (“IJ”) who heard Reda’s case took written submissions about the timeliness of the asylum application, and issued an oral decision that the application was time-barred and not subject to exceptions for filings beyond one year of arrival. R. 105-06. Reda, through counsel, subsequently affirmed that she was pursuing withholding and CAT relief only. R. 110. In her written decision, the next IJ cited the earlier decision on the asylum claim and denied the other then-pending applications for relief. The Board of Immigration Appeals (“BIA”) dismissed Reda’s subsequent appeal.
Reda, through counsel, presents a petition for review. We first address the scope of our jurisdiction over the petition. The Government moves to dismiss for lack of jurisdiction Reda’s petition as it relates to the asylum question.1 We have jurisdiction to review constitutional claims and questions of law but not factual or discretionary determinations concerning the timeliness of an asylum application. See 8 U.S.C. §§ 1158(a)(3) & 1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 634-35 (3d Cir.2006).
Reda at one point states that a decision on her asylum claim does not exist. Appellant’s Brief 6. However, in context, we do not read that statement literally, particularly because she otherwise describes the IJ as refusing to apply an exception to the one-year filing deadline for asylum applications. Appellant’s Brief 5-7. Also, the IJ’s oral decision is in the record. R. 105-06. We do not have jurisdiction to review the substance of that ruling. See 8 U.S.C. § 1158(a)(3).
However, we will consider Reda’s legal argument that how the IJ decided the asylum question — allegedly without a hearing, without giving reasons for the denial, and without a formal written ruling — violated her right to due process of law. We conclude that Reda’s due process rights were not violated. Reda was provided with notice and the opportunity to be heard. When her counsel first proposed that Reda might be subject to an exception to the one-year deadline, the IJ allowed counsel time to prepare a memorandum of law on the issue and solicited a response from the Government. R. 102. The IJ provided reasons for her decision when she reconvened the hearing and explained that she had considered the briefs and was not persuaded by Reda’s arguments. R. 106. Furthermore, to the extent that there was no formal ruling on asylum application, it was because Reda, or rather, Reda’s counsel, did not further pursue an asylum claim before the IJ after the IJ’s oral ruling. R. 110 (presenting an application for withholding and CAT relief and confirming that those two forms of relief were the only forms of relief then under consideration).
As to withholding of removal,2 Reda argues that the IJ erred in failing to *418take administrative notice of the state of affairs in Lebanon at the time of her hearing; erred in stating that she was without sufficient evidence to grant relief despite Reda’s credible testimony; and erred in failing to review a report from Amnesty International. Reda also expresses concern about the IJ’s statement, at one point in her hearing, that the IJ had another case in 50 minutes, as well as about how her illiteracy affected her testimony.
On review, we conclude that the agency did not err in concluding that Reda failed to show a ‘clear probability’ that she will be persecuted on her return to Lebanon. See Kaita, v. Attorney Gen. of the United States, 522 F.3d 288, 296 (3d Cir. 2008). Reda claimed that she would be persecuted for two reasons. The first was that in 1983, she witnessed the murders of her uncles and cousins. R. 156. She was hiding in a washing machine when her relatives were killed, but she heard the attackers say that they were there to kill everyone in the house and she saw them. R. 154-56. The attackers, some of whom she could identify by name and as members of Hezbollah, heard her scream, so they knew she was a witness. R. 157 & 160. However, Reda stated that neither she nor anyone in her village knew the reason why the murders occurred. R. 164. Given this statement and the fact that Reda did not explain how any threat that she might face for witnessing the murders would be on account of a protected ground (and averred that neither she nor any family member ever belonged to a political organization, R. 234), it cannot be said that the evidence compels a conclusion contrary to the BIA’s. See Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.2001) (“[P]urely personal retribution is, of course, not persecution on account of [a protected ground].”)
Reda’s second claim of persecution was that she may fall -victim to an honor killing by a relative because she married an older man (a cousin) without her family’s permission more than 20 years ago. However, the only relatives she identified as remaining in Lebanon are her two brothers, R. 165, with whom she speaks, R. 173, and who warned her not to return because they feared that she would face a threat from the persons or group who murdered her family members, R. 189. Her brothers also wrote a letter in support of her application in which they discussed Reda’s efforts to emigrate to a location where she could find “self-dignity, freedom, and civil rights.” R. 243. As the BIA noted, it is highly implausible that those same brothers who urged her to avoid a threat to her safety would be motivated to kill her on her return. Furthermore, with this claim, too, Reda failed to show that any persecution she might face would be due to her race, religion, nationality, membership in a particular social group, or political opinion.
Accordingly, we perceive no error in the IJ’s conclusion that Reda had not met her burden of proof as to withholding despite Reda’s credible testimony. We also reject Reda’s remaining claims. Nothing in the record suggests that Reda’s illiteracy or the IJ’s scheduling of another case (or any other action by the IJ) prevented Reda from fully presenting her case. See Fadiga v. Attorney Gen. of the United States, 488 F.3d 142, 155 (3d Cir. 2007). Furthermore, despite Reda’s claim to the contrary, the IJ did consider evidence of country conditions and news ac*419counts and take administrative notice of events in Lebanon, including Hezbollah activities. R. 85, 126-27, 182-88. However, this evidence of “ ‘[m]ere generalized lawlessness and violence between diverse populations’ ” was insufficient to show that Reda would be targeted for persecution based on a protected ground. Abdille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (citation omitted).
For the reasons given, we grant the Government’s motion and will dismiss Reda’s petition to the limited extent that we lack jurisdiction over the factual determination that her asylum application was untimely. We will otherwise deny the petition for review.
. Initially, the Clerk's Office also listed Reda’s case for possible dismissal for jurisdictional defect because Reda filed an amended petition for review more than 30 days after the BIA’s decision. However, we conclude that the amendment to explicitly cite the asylum decision after the time for filing ended does not bar us from considering the petition. Reda timely filed her initial petition that identified the BIA decision and cited the withholding and CAT claims.
. As the Government notes, Reda does not pursue her CAT claim in her petition, so we *418consider any issues relating to that claim waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477731/ | OPINION
PER CURIAM.
Min Tong Yang petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) on January 29, 2009. For the reasons that follow, we will deny the petition for review.
I. Background
Yang, a native and citizen of the People’s Republic of China, entered the United States illegally in May 1999. He is married and claims to have two United States citizen children, born in July 2004 and February 2006. In July 2006, Yang filed for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming that he fears he will be forcibly sterilized if he returns to China because he has violated China’s coercive family planning laws. After a hearing, the Immigration Judge (“IJ”) denied relief, concluding that Yang failed to meet his burden of proof.
On January 29, 2009, the BIA affirmed the IJ’s decision and dismissed the appeal. Through counsel, Yang filed a timely petition for review.
II. Analysis
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252], Because the BIA did not adopt or defer to the IJ’s conclusions, we review only the BIA’s decision. See Voci v. Gonzales, 409 F.3d 607, 612-13 (3d Cir. 2005). We review findings of fact for substantial evidence. See INA § 242(b)(4)(B) [8 U.S.C. § 1252(b)(4)(B) ]. We review legal determinations de novo, subject to the principles of deference articulated in Chevron v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir.2007). For Yang to succeed on his 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-Zacañas, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Yang bore the burden of demonstrating that he has a well-founded fear of persecution in China. See Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008). The BIA concluded that Yang failed to establish that a person in his circumstances would fear sterilization in China for fathering two United States citizen children. See A.R. 02 (BIA Decision at 1).
Yang’s primary objection to the BIA’s decision centers upon a footnote in which the BIA found, relying upon a 2007 State Department Country Report for China, A.R. 264-324, that “complications could arise” for a Chinese national returning to China with a foreign-born child who is traveling on a Chinese passport. A.R. 03 (BIA Decision at 2, n. 2); A.R. 293 (State Department Report at 30). The BIA noted that, if such an individual were to attempt to register the child as a household member in China, the child would count for purposes of China’s family planning laws “and this could trigger sanctions and economic penalties under the relevant laws.” A.R. 03 (BIA Decision at 2, n. 2).
Yang claims that he is an individual for whom such “complications” will arise. He states that his children have Chinese passports and that the BIA’s finding establishes that his children will count for purposes of China’s family planning laws. As a result, he claims, the BIA’s decision effectively agrees that he will face persecution in China. Yang argues that “he has already intentionally or unintentionally triggered] the sanctions and economic penalties under family planning policy by *421obtaining Chinese travel permits for his children.” Petitioner’s Brief at 19.
Putting aside the fact that the BIA’s finding does not categorically establish that an individual in such circumstances will necessarily face such “complications,” see A.R. 03 (BIA Decision at 2, n. 2) (“complications could arise”), Yang does not address the BIA’s additional finding that, in Yang’s province in China, “the provincial government only imposes economic penalties on families that do not comply with the family planning law, rather than criminal penalties or physically coercive methods....” A.R. 03 (BIA Decision at 2); A.R. 290 (State Department Report at 27). Taken together, these findings reflect that, even if China were to count Yang’s children for the purposes of the family planning laws due to their possession of Chinese passports, the sanctions Yang would face for violating those laws upon return to China are economic in nature.
There is nothing in the record to demonstrate that such economic sanctions would be sufficiently extreme to constitute persecution. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (persecution encompasses “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.”). More importantly, Yang never previously raised an economic persecution claim. To the extent he is implicitly attempting to do so for the first time before this Court, we will not consider such a claim. Yang failed to exhaust his administrative remedies because he did not present an economic persecution claim to the BIA in the first instance. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).
.Yang claimed, before both the IJ and the BIA, that he feared he would be forcibly sterilized because he violated China’s coercive family planning laws. The BIA concluded that Yang’s evidence was not sufficient to meet his burden of proof to prevail on this claim. After closely reviewing the record, we conclude that the BIA’s findings rest upon substantial evidence.1 Nothing compels the conclusion that Yang is entitled to relief on his forcible sterilization claim. Elias-Zacarias, 502 U.S. at 481 n. 1,112 S.Ct. 812.
Yang’s remaining arguments pertain only to alleged errors in the IJ’s decision, which is not subject to our direct review.2 See Voci, 409 F.3d at 612-13. None of these arguments provides grounds for disturbing the BIA’s decision.
*422III. Conclusion
For the foregoing reasons, we will deny the petition for review.
. We have repeatedly held that State Department Reports may constitute substantial evidence. See Yu, 513 F.3d at 349.
. For instance, Yang objects to the IJ's finding that, to the extent he was attempting to stand in his wife’s shoes under Chen v. Att’y Gen., 491 F.3d 100, 108 (3d Cir.2007), Yang made an insufficient showing that his wife would be subject to forced sterilization in China. However, Yang did not raise this argument on appeal to the BIA, the BIA did not address this aspect of the IJ's decision, and, in any event, we have overruled Chen. See Lin-Zheng v. Att’y Gen., 557 F.3d 147 (3d Cir.2009) (rejecting principle that an individual may claim asylum based solely upon a well-founded fear that his spouse would be forcibly sterilized). Yang also argues that the IJ “faulted petitioner not to establish his paternity over his two children." Petitioner's Brief at 13. The question of paternity was an issue for the IJ because Yang's name is not listed on his first child's birth certificate and that child was born before Yang's marriage. See A.R. 43 (IJ Decision at 6). However, the BIA’s decision focused on Yang’s failure to establish a reasonable possibility that he would be sterilized in China for having fathered two children while outside China. See A.R. 03 (BIA Decision at 2). The BIA never discussed the issue of paternity and apparently accepted that both children are Yang's for purposes of its decision. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477733/ | OPINION
PER CURIAM.
Tao Lin petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal of the Immigration Judge’s (“IJ”) decision denying his applications for relief from removal. We will deny the petition for review.
Lin is a native and citizen of China who lived in Fujian Province. Lin was detained when he arrived at the Los Angeles, California airport in October 2001. Shortly *423thereafter, a notice to appear was issued charging that Lin was subject to removal because, at the time of his application for admission, he did not possess a valid entry document. Lin applied for withholding of removal and protection under the Convention Against Torture (“CAT”). Through counsel, Lin conceded at his hearing that his asylum application was untimely.
Lin testified that in May 2001 he and his girlfriend, who was nineteen years old and three months pregnant, applied for a marriage license. Chinese officials rejected the application because his girlfriend was too young to marry. Apparently in an effort to persuade officials to issue the license, Lin’s girlfriend told them that she was pregnant. The officials detained Lin and his girlfriend immediately. Lin’s girlfriend was taken to a family planning office so that an abortion could be performed.
Lin argued with officials and told them that what they were doing was inhumane. Officials detained him at the local police station for two days and beat him by hitting him in the stomach and kicking him. Lin stated that the men told him what he did was illegal, insulted him, and threatened to beat him to death. Lin testified that he was then taken to a family planning office and told that he would be detained and fined. Lin stated that he asked for his girlfriend and child and he was told that his girlfriend had already had an abortion. Lin argued further with officials and, when he had the opportunity, ran out of the office.1
Lin fled to his aunt’s house and ultimately came to the United States. He never returned home or saw his girlfriend again. Lin’s girlfriend, who lives in China, has written him letters and has told him that she had an abortion. Lin testified that government officials have been to his house three or four times looking for him. The officials damaged some personal items and used some threatening words. Lin believes that, if he returns to China, he will be detained because officials told him and his family that he had not been punished for what he did. Lin also stated that he must be fined.
The IJ found Lin removable as charged and denied his applications for relief from removal. The IJ concluded that Lin was not eligible for withholding of removal because he did not satisfy the statutory definition of “refugee,” which, in his case, required a showing that he was persecuted on account of his “other resistance” to a coercive population control program. The IJ also concluded that the facts did not support a claim under the CAT.
On appeal, the BIA agreed with the IJ that Lin did not show that any harm he experienced was on account of one of the grounds enumerated in the definition of “refugee.”2 The BIA recognized that the definition of refugee includes one who has been persecuted for “other resistance” to a coercive population control program.3 The *424BIA explained that “other resistance” must be a failure or refusal to comply with official demands to adhere to birth planning policies and found that Lin did not show that he was harmed on account of such resistance. Rather, the BIA found that Lin was detained and mistreated because he impregnated his underage girlfriend.
The BIA also concluded that Lin did not show that he would be persecuted if he returned to China. The BIA explained that there was no evidence that a fine had been assessed, that any fine would be so great as to constitute persecution, or that any fine would be on account of his “other resistance” to China’s family planning policy. The BIA further noted that there was no evidence showing that officials intended to harm him in a way that would constitute persecution or torture. The BIA concluded that Lin had not met his burdens of proof for withholding of removal or protection under the CAT. This petition for review followed.
We review the decision of the BIA where, as here, the BIA did not adopt the IJ’s decision or defer to the IJ’s findings. Voci v. Gonzales, 409 F.3d 607, 612 (3d Cir.2005). We review the BIA’s findings under a substantial evidence standard, which requires that we uphold the BIA’s findings unless the evidence compels a contrary conclusion. Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004).
Lin argues in his brief that his asylum application “should have been kept open.” (Pet’r Br. 10.) He asserts that, although his application was untimely filed in 2005, he was ready to file the application in 2003, but he was precluded from doing so by the Immigration Court in New York.4 Lin did not pursue his asylum claim in his proceedings before the IJ nor did he raise an issue on appeal to the BIA as to the timeliness of his application. We lack jurisdiction to review a claim that an alien has not raised and exhausted in the administrative proceedings. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Moreover, even if Lin had exhausted his claim, we lack jurisdiction to review discretionary determinations regarding whether an untimely asylum application should be excused. Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir.2006).
To the extent Lin seeks to challenge the BIA’s conclusion that he was not eligible for withholding of removal because he was not persecuted on account of his “other resistance” to a coercive population control program, we agree with the Government that Lin has waived such a challenge. Lin does not advance any legal argument in his brief challenging the BIA’s definition of “other resistance” nor does he contend that his conduct fit within the BIA’s definition. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005) (finding appeal of alien’s claim waived where she failed to raise any argument regarding the denial of her claim in her brief).5
Finally, Lin argues that the IJ erred in denying his CAT claim because the IJ did not consider in detail the country conditions or the possibility that he may be *425imprisoned or tortured for illegally departing China, for voicing his opinion, or for violating the family planning policy. As noted above, our review is limited to the BIA’s decision. To the extent Lin seeks to challenge the BIA’s decision, the BIA concluded that the background evidence stating that officials have been known to torture detainees was insufficient to show that Lin was likely to be a victim of torture. The BIA also found no evidence showing that officials intended to harm him in a way that would constitute torture. Lin has not shown that the record compels a contrary conclusion.
Accordingly, we will deny the petition for review.
. Lin's written statement is inconsistent with his testimony. Lin wrote that he went to the family planning office after his release from jail to ask for his girlfriend and that he fled when a security guard was ordered to catch him.
. Noting that the IJ did not make an adverse credibility finding, the BIA assumed Lin's testimony was credible for purposes of his appeal.
. The relevant statutory provision states: [A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well *424founded fear of persecution on account of political opinion.
8 U.S.C. § 1101(a)(42) (emphasis added).
. After Lin’s arrival in California, venue was changed to New York. Venue was changed to New Jersey in 2005.
. We disagree with the Government, however, that we would lack jurisdiction to entertain such a challenge due to Lin’s failure to raise the argument before the BIA. See Lin v. Attorney General, 543 F.3d 114, 126 (3d Cir.2008) (holding court has jurisdiction to consider issue that was not presented to BIA where BIA sua sponte addressed and ruled on the unraised issue). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477737/ | OPINION
PER CURIAM.
David V. Houghton appeals from the order of the United States District Court for the District of New Jersey granting the defendant’s motion for summary judgment in his lawsuit brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. We will affirm.
As alleged in the complaint, on November 6, 2008, Houghton submitted a request to the Central Intelligence Agency (“CIA”), seeking copies of documents pertaining to himself pursuant to FOIA and the Privacy Act.1 In his letter, Houghton provided his pertinent biographic information for purposes of the search. On December 17, 2008, the CIA informed Hough-ton that the agency had processed his search request but was unable to identify any information or records filed under his name. Houghton appealed the agency’s decision. On January 28, 2009, the CIA acknowledged receipt of Houghton’s appeal and informed him that because appeals were handled in the order received, and because of the large number of appeals, it was unlikely that the agency would respond to his appeal within twenty working days.
On May 15, 2009, Houghton filed his FOIA complaint in the District Court, alleging that the CIA had not answered his appeal. As relief, he sought an order to compel the CIA to disclose the requested records, as well as recovery of his costs of litigation. The CIA filed a motion to dismiss, arguing that to the extent that Houghton sought an answer to his administrative appeal, the issue was moot because on May 19, 2009, the agency denied his appeal because additional records searches at the appellate level yielded no responsive documents. The CIA also requested summary judgment, supported by the declaration of Delores Nelson, Chief of the Public Information Programs Division of the CIA. Houghton filed a cross-motion for summary judgment and response to the CIA’s motion. On September 11, 2009, *431the District Court granted the CIA’s motion and denied Houghton’s cross-motion. Houghton appeals.
We have jurisdiction under 28 U.S.C. § 1291. We employ a two-tiered test in reviewing the District Court’s order granting summary judgment in proceedings seeking disclosure under FOIA. First, we determine whether the District Court had an adequate factual basis for its decision. See Abdelfattah v. United States, 488 F.3d 178, 182 (3d Cir.2007) (per curiam) (citing McDonnell v. United States, 4 F.3d 1227, 1242 (3d Cir.1993)). If an adequate factual basis exists, we then decide whether the District Court’s determination was clearly erroneous. See id. (citations omitted). We will reverse only “if the findings are unsupported by substantial evidence, lack adequate evidentiary support in the record, are against the clear weight of the evidence or where the district court has misapprehended the weight of the evidence.” Id. (citing McDonnell, 4 F.3d at 1242; quoting Lame v. United States Dep’t of Justice, 767 F.2d 66, 70 (3d Cir.1985)). The relevant inquiry under FOIA is whether the agency conducted a reasonable search for responsive records. Id. at 182. “To demonstrate the adequacy of its search, the agency should provide a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched.” Id. (citations and internal quotations omitted).
We agree with the District Court’s conclusion that the detailed affidavit submitted in this case establishes that the CIA’s search was adequate. In the affidavit, Nelson detailed the process of how the CIA searched its records systems of the National Clandestine Service (NCS) and the Directorate of Support (DS) for records responsive to Houghton’s request, and she stated that all files likely to contain responsive materials were searched. Nelson stated that no responsive records were located, despite having searched under various search terms enumerated in the affidavit, including Houghton’s name, variations in the spelling of his name, and his biographic identifying information. Houghton argues that the District Court erred in ruling in the CIA’s favor when the CIA did not employ an exemption in denying his request for documents. Appellant’s Brief at 3. However, because no documents responsive to Houghton’s request were located, there were no documents for the CIA to withhold — there was no need for the CIA to invoke any of the statutory exemptions in responding to Houghton’s FOIA request. We conclude that the District Court had an adequate factual basis for its determination, and we discern no clear error in the District Court’s decision.2
We will affirm the District Court’s judgment.
. Houghton’s FOIA complaint does not allege claims under the Privacy Act.
. Houghton also argues that the District Court erred in granting summary judgment because the certificate of service attached to the CIA's motion contained an incorrect date in the certification statement made under penalty of perjury. The document states that service of the motion was made on July 21, 2009, while the certification itself bears a typed execution date of July 21, 2010. Houghton does not claim that he did not receive service of the motion. We conclude that the typographical error has no bearing on the outcome of the legal question before us and does not constitute reversible error. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477739/ | OPINION OF THE COURT
PADOVA, Senior District Judge.
Appellant Matthew A. Layton pled guilty to a charge of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to 72 months’ imprisonment. He subsequently filed a notice of appeal, and defense counsel moved to withdraw as appellate counsel, filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellant has exercised his right to file a pro se brief, which raises two issues, a challenge to the reasonableness of the sentence and an ineffectiveness of counsel claim. For the following reasons, we will grant de*433fense counsel leave to withdraw and affirm the judgment of the District Court.
I.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary review to determine whether there are any nonfrivolous issues on appeal. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The determination of frivolousness is informed by the standard of review for each potential claim raised. See, e.g., United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir.2002).
II.
As we write exclusively for the parties, who are familiar with the factual context and legal history of this case, we will set forth only select background facts. At approximately 1:00 a.m. on August 10, 2008, Appellant arrived, uninvited, at a community cook-out in Felton, Delaware. Appellant was drunk and belligerent, and was asked to leave. He and several party guests got into an argument, and Appellant stepped towards one of the guests, who pushed him away. Appellant removed from his belt line a loaded .45 caliber semi-automatic pistol and fired the gun three times into the air. An off-duty police officer rushed Appellant, choked him unconscious and took the gun. Appellant left the party when he regained consciousness, and he was arrested the next day.
On December 1, 2009, Appellant pled guilty to a one count indictment, charging him with the offense of felon in possession of a firearm. In the Presentence Report, Probation calculated that Appellant had a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because he had committed the instant offense subsequent to a felony conviction for a crime of violence, i.e., a conviction of aggravated menacing in 2006. Probation next applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6), reasoning that Appellant possessed the firearm in connection with another felony offense, i.e., first degree reckless endangering. Probation also applied a three-level reduction for acceptance of responsibility, resulting in a total offense level of 21. Probation calculated Appellant’s Criminal History category as III based on his prior criminal conduct. As a result, according to Probation, Appellant’s advisory Sentencing Guideline range was 46-57 months.
At the sentencing hearing on April 8, 2009, Appellant objected to Probation’s recommended four-level enhancement, and the Government agreed with Appellant that the enhancement was not warranted. The Court granted Appellant’s objection, leaving Appellant with a total offense level of 17 instead of 21. The total offense level of 17, combined with Appellant’s Criminal History Category of III, resulted in an advisory Sentencing Guideline range of 30 to 37 months. The Court, however, varied upwards upon consideration of the § 3553(a) factors, and imposed a sentence of 72 months of imprisonment. Among other things, the Court noted that Appellant came from a good family and yet, from age 12 to age 20, had repeated contacts with the criminal justice system, demonstrating an inability to comply with the rules of society. The Court further emphasized that Appellant’s conduct in shooting a gun at a community party was very serious and stated that an above-guideline sentence was necessary to protect the public. Appellant timely filed this appeal.
III.
Our role in analyzing an Anders brief is twofold. First, we determine whether the Anders brief is adequate on its face. United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001). Second, we determine *434whether an independent review of the record reveals any issues that are not frivolous. Id. An adequate Anders brief “satisfies] the court that counsel has thoroughly examined the record in search of appealable issues," and “explain[s] why the issues are frivolous.” Id. (citing United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000)). “Counsel need not raise and reject every possible claim. However, at a minimum, he or she must meet the ‘conscientious examination’ standard set forth in Anders.” Id. (citing Marvin, 211 F.3d at 780). We find Counsel’s Anders brief to be adequate on its face. Where, as here, an appellant has pled guilty, there are three general issues still open for appeal: (1) the district court’s jurisdiction to enter the conviction and impose sentence; (2) the validity or voluntariness of Appellant’s guilty plea; and (3) the legality of Appellant’s sentence. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989); 18 U.S.C. § 3742(a). Although Counsel addressed only the third of these three issues, we conclude that it was unnecessary to address the other two issues because they are patently frivolous.1 See Marvin, 211 F.3d at 781.
With respect to the legality of Appellant’s sentence, we agree with Counsel that any issues are frivolous because Appellant’s sentence is both below the statutory maximum and reasonable. In his pro se brief, Appellant concedes that the District Court properly calculated the Guideline sentencing range and does not contend that his sentence exceeded any statutory maximum. He argues, however, that his sentence is substantively unreasonable because he did not place anyone in fear of imminent physical injury, comes from a good family background, has held full time jobs, and is less of a criminal than others in prison.
We “ ‘review the substantive reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether it falls within the Guidelines range.’ ” United States v. Sevilla, 541 F.3d 226, 230 (3d Cir.2008) (quoting United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008), and citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Ultimately, “[t]o determine whether a sentence is reasonable, the court must examine ‘whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).’ ” United States v. Goff, 501 F.3d 250, 254 (3d Cir.2007) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)) (additional citation omitted). We must affirm the sentence as long as it “falls within the broad range of possible sentences that can be considered reasonable in light of the § 3553(a) factors.” Wise, 515 F.3d at 218 (citation omitted).
Here, it is plain that the District Court gave rational and meaningful consideration to the § 3553(a) factors, and arrived at a *435sentence that falls within the broad range of possible sentences that can be considered reasonable. While Appellant maintains that the Court did not properly weigh his family and employment history and the nature of the offense, the sentencing transcript makes clear that the Court carefully considered those factors along with the other § 3553(a) factors and clearly explained why he imposed an above-Guidelines sentence. (A52-A55.) Accordingly, Counsel correctly concluded that a challenge to the reasonableness of Appellant’s sentence would be frivolous and Appellant’s pro se arguments are meritless.
IV.
In his pro se brief, Appellant raises one additional issue that was not addressed by Counsel in the Anders brief, i.e., that Counsel was ineffective for addressing his criminal history and substance abuse problems at sentencing. As a general matter, “Sixth Amendment claims of ineffective assistance of counsel should ... be raised in a collateral proceeding pursuant to 28 U.S.C. § 2255 rather than on direct appeal.” United States v. Jake, 281 F.3d 123, 132 n. 7 (3d Cir.2002) (citations omitted). “The rationale underlying this preferred policy is that oft-times such claims involve allegations and evidence that are either absent from or not readily apparent on the record.” United States v. Gambino, 788 F.2d 938, 950 (3d Cir.1986). Accordingly, “[i]t has long been the practice of this court to defer the issue of ineffectiveness of trial counsel to a collateral attack. Nonetheless, we have held that we may address the claim of ineffective assistance of counsel on direct appeal when the record is sufficient to allow determination of the issue.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003) (citations omitted).
Appellant, being pro se, does not explicitly argue that the exception to the ordinary practice of deferral applies in this case. However, the record is sufficient to allow determination of the issue he raises and, thus, we will reach the issue and conclude that the ineffectiveness claim is meritless.
In order to prove that counsel rendered ineffective assistance under the Strickland test, an appellant must establish that counsel’s representation was below an objective standard of reasonableness, and that the substandard performance prejudiced the appellant. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant concedes that Counsel did a “fair job” of representing him at sentencing. However, he complains that Counsel commented too extensively regarding his criminal history and wrongfully attributed that criminal history to anger issues and substance abuse when, in his view, his current crime was simply the “act of a hot headed kid,” who would have been adequately punished with a sentence of 37 months.
However, contrary to Appellant’s suggestion, defense counsel did not unilaterally alert the Court to Appellant’s criminal history; the Presentence Report had already exhaustively detailed Appellant’s criminal past. Thus, it was certainly reasonable for Counsel to address Appellant’s extensive history at sentencing and to attempt to explain that the prior criminal conduct was, at least in part, the result of anger management and substance abuse issues, which, according to Counsel, Appellant was actively addressing. Likewise, Counsel plainly discussed Appellant’s prior probationary sentences not to highlight those sentences, but to point out that Appellant was largely compliant while on probation and, as such, had demonstrated that he has the ability to conform to societal rules.
While Appellant apparently disagrees with Counsel’s strategy in this regard, *436“[i]n evaluating counsel’s performance, [the Court is] ‘highly deferential’ and ‘indulged a strong presumption’ that, under the circumstances, counsel’s challenged actions might be considered sound ... strategy.” Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.1999) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Indeed, “Strickland and its progeny make clear that counsel’s strategic choices will not be second-guessed by post-hoc determinations that a different ... strategy would have fared better.” Rolan v. Vaughn, 445 F.3d 671, 681-82 (3d Cir.2006) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).
In this case, Counsel’s challenged conduct did not fall below an objective standard of reasonableness but, rather, was a reasonable strategy to attempt to minimize the potentially damaging effect of Appellant’s 8-year failure to conform to societal rules. Accordingly, Appellant’s ineffectiveness claim is meritless as he cannot satisfy the first prong of the Strickland test.
V.
For the foregoing reasons, we conclude that Counsel has fulfilled his obligation under Anders and the Local Appellate Rules to provide an adequate no-merit brief, and our independent review of the record yields no nonfrivolous issues for appeal. In addition, Appellant’s ineffectiveness claim is meritless.
In light of the foregoing, we will AFFIRM the Judgment and Commitment Order of the District Court and, in a separate order, grant Counsel’s motion to withdraw.
. The District Court clearly had jurisdiction over Appellant’s crimes, because he was charged with violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2), which are criminal offenses against the laws of the United States. See 18 U.S.C. § 3231. In addition, the record shows that the District Court thoroughly colloquied Appellant before accepting his plea, as required by Fed.R.Crim.P. 11(b) and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The Court informed Appellant of the nature of the charges against him, the rights he forfeited by pleading guilty, the maximum penalties permitted for his offenses, the advisory nature of the Sentencing Guidelines, and the factual basis for his guilty plea. See United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir.2006). Looking at the totality of the circumstances surrounding Appellant’s plea, it is therefore plain that Appellant voluntarily and knowingly pled guilty and any claim to the contrary would be patently frivolous. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477741/ | OPINION OF THE COURT
DIAMOND, District Judge.
David E. Jones appeals from the District Court’s grant of summary judgment, dismissing as time-barred his negligence action against the United States. For the reasons that follow, we will affirm.
I.
Because we write primarily for the Parties, we will recite only those facts pertinent to our analysis.
Jones, a Korean War veteran, had outpatient surgery to repair a protruding umbilical hernia on January 11, 2000 at the Wilmington Veterans Administration Medical Center (VAMC). (App.91.) He was admitted to the VAMC for observation after the surgery, and discharged the next day. (Id.) On January 13, 2000, Jones experienced severe complications. He was admitted to the VAMC emergency room and underwent exploratory abdominal surgery. (Id.) He remained in intensive care at the hospital until January 21, 2000. (Id.) After his discharge, Jones experienced additional post-operative complications. He underwent a third surgery at the VAMC in March 2001 to correct a ventral hernia. (Id.)
Jones contends that the VAMC performed the first two surgeries incompetently. He alleges that the procedures left him unable to perform his job as a truck driver, and that he experiences constant pain and has difficulty controlling his bowels.
Jones sought assistance from the Vietnam Veterans of America, a Congressionally-chartered organization that helps veterans prepare and file claims with the *438federal government. Pursuant to a power of attorney, Vietnam Veterans sent a letter to the Department of Veterans Affairs on March 18, 2000, stating that Jones “wishes to open a claim for service connected disability for complications from operation received at Wilmington VA Hospital for hernia operation, and scars.” (App.25.) The letter did not include any allegations of negligence. On March 15, 2000, the VA responded in a letter that it was “working on [Jones’] claim,” but had not received Form 21-526, required from those seeking disability benefits. (App.28.)
Vietnam Veterans returned a completed, but unsigned, Form 21-526 to the VA on December 18, 2000. On that part of the form asking the applicant to state the “nature of sickness, disease or injuries for which this claim is made and date each began,” Jones wrote “s/c [service-connected] disability for complications from operation received at VAMC, Wilmington for hernia operation and scars.” (App.29.) In its January 16, 2001 letter, the VA acknowledged receiving Jones’ disability claim. (App.34.) Over the next year, the VA sent Jones a series of letters requesting more information, including the exact definition or nature of his disability, a signed Form 21-526, a list of physicians who treated him, and “evidence of current additional disability due to the [hernia] treatment.” (App.34, 37, 40, 41, 52.) Because Jones is illiterate, he was assisted by his daughter and the Vietnam Veterans. Because Jones failed to respond to many of the requests, the VA denied his application on March 22, 2002. (App.72-74.) The decision became final on March 22, 2003 when Jones failed to appeal.
Jones testified that he learned of his right to file a lawsuit under the Federal Tort Claims Act when he consulted a lawyer in May 2003. See 28 U.S.C. § 1346. With the help of the Veterans Assistance Program at Widener Law School, Jones wrote to the VA that he was now alleging medical malpractice and enclosed the required SF-95 form and a claim for money damages in a sum certain. (App. 63.) The VA received the form on June 2, 2003. Jones v. United States, 2008 WL 4952592, at *1-2, 2008 U.S. Dist. LEXIS 94469, at *5 (D.Del. Nov. 20, 2008).
Jones also continued to pursue disability benefits, moving to reopen his claim on August 19, 2003. (App.82.) He appealed the VA’s disability decision to the Board of Veterans’ Appeals, which on October 26, 2006 remanded to the VA for reconsideration. (App.138.) On September 24, 2007, the VA granted Jones’ claim, assigned him a sixty percent disability rating, and awarded him benefits retroactive to August 19, 2003. (App.158.)
On November 20, 2007, Jones brought the instant FTCA suit against the United States, alleging negligent medical practice, lack of informed consent, and battery. The Parties consented to have the case decided by a Magistrate Judge, who granted the Government’s motion for summary judgment, ruling that Jones’ action was time-barred. Jones, 2008 WL 4952592, at *5, 2008 U.S. Dist. LEXIS 94469, at *19.
II.
The District Court had subject-matter jurisdiction under the FTCA, 28 U.S.C. § 1346(b), and we exercise jurisdiction under 28 U.S.C. § 1291.
III.
We exercise plenary review over a District Court’s grant of summary judgment and apply the same test applied by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.2001). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that *439there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
IV.
An FTCA claim for negligence against the Government must be presented to the appropriate federal agency “within two years after such claim accrues.” 28 U.S.C. § 2401. The claim accrues “when a plaintiff knows of both the existence and the cause of his injury.” Miller v. Phila. Geriatric Center, 463 F.3d 266, 272 (3d Cir. 2006). The claim is “presented” (thus tolling the running of the limitations period) when an executed SF-95 and a claim for money damages in a sum certain are received by the government agency. 28 C.F.R. § 14.2.
Jones alleges that the first two surgeries — which took place in January 2000— were incompetently performed. Accordingly, the Government contends — as it did below — that Jones’ limitations period began to run in January 2000. See Miller, 463 F.3d at 271 (limitations period begins to run when cause of action accrues). Although the Magistrate Judge appeared to agree, treating Jones as generously as she could, she ruled that March 9, 2001 — the date of the third surgery — was the latest date that the limitations period could have begun to run. Jones, 2008 WL 4952592, at *2, 2008 U.S. Dist. LEXIS 94469 at *8. Thus she ruled that because Jones was obligated to present his negligence claim no later than March 9, 2003, the VA’s receipt of the claim on June 2, 2003 was outside the limitations period. Id. at *3-4, 2008 U.S. Dist. LEXIS 94469, at *13.
Jones concedes that he brought his claim more than two years after it accrued. As he did below, he contends here that his claim was not time-barred, however, because the running of the limitations period was equitably tolled.
Equitable tolling may apply to claims brought against the Government. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (because federal statutes of limitation are not jurisdictional, “the same re-buttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States”). In Hughes v. United States, we first held that in appropriate circumstances, equitable tolling could apply to claims brought under the FTCA. 263 F.3d 272, 278 (3d Cir.2001). We have recently re-affirmed that holding. Santos v. United States, 559 F.3d 189, 197 (3d Cir.2009) (“[W]e think that our holding in Hughes that there can be equitable tolling in suits under the FTCA remains good law ...”).
As we cautioned in Santos, however, “a plaintiff will not receive the benefit of equitable tolling unless she exercised due diligence in pursuing and preserving her claim” because “[t]he principles of equitable tolling ... do not extend to ‘garden-variety claims of excusable neglect.’ ” Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453). The “remedy of equitable tolling is extraordinary, and we will extend it only sparingly.” Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). We further noted in Santos that “it is especially appropriate to be restrictive with respect to extension of equitable tolling in cases involving the waiver of the sovereign immunity of the United States.” Santos, 559 F.3d at 197 (citing United States v. Kubrick, 444 U.S. 111, 117-19, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)).
Equitable tolling may apply to FTCA claims in three instances:
“(1) where the defendant has actively misled the plaintiff respecting the plain*440tiffs cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.”
Hedges, 404 F.3d at 751 (internal citations omitted). Jones contends that he has met all three of these requirements. We do not agree.
In Jones’ view, the VA actively misled him by failing to advise him that he could pursue both a negligence action and a disability claim. He believes that the paperwork the VA sent him while investigating his disability claim “would lull any claimant into believing that his claim was adequately and appropriately being addressed.” (Appellant’s Br. at 16.)
The VA did not actively mislead Jones. To the contrary, the paperwork he acknowledges receiving indicates only that the VA sought to process Jones’ disability claim. Although the VA was obligated to “develop the facts pertinent to [Jones’] claim,” it was not required to advise Jones with respect to other legal remedies that might be available. See 38 C.F.R. § 3.103. In Hedges, we explicitly refused to hold that a government agency “has an affirmative duty to inform litigants, including pro se litigants, that they have viable judicial, as well as administrative remedies.” Hedges, 404 F.3d at 752. We explained that “we are unwilling to place such a responsibility on the Government which has inquiries from millions of individuals each year.” Id. Accordingly, Jones is not entitled to equitable tolling on this ground See also Lake v. Arnold, 232 F.3d 360, 367 (3d Cir.2000) (plaintiffs mental disability and illiteracy did not warrant equitable tolling).
Jones also argues that his case is similar to Santos, where we applied equitable tolling after finding that Mercy Santos — who was six years old when she was allegedly subjected to negligent care — had been prevented from asserting her rights in “some extraordinary way.” Santos, 559 F.3d at 203-04. The defendant agency in Santos was the York Health Corporation’s pediatric clinic. Id. at 190. Although Ms. Santos and her counsel pursued her negligence claim diligently, counsel — who researched publicly available clinic records— was unable to learn that because the clinic received federal funds, it was a federal entity for FTCA purposes. Id. at 200-01. Counsel thus erroneously believed that a longer limitations period applied to Ms. Santos’ claim when he belatedly filed her negligence claim in state court. Id. at 191. We found that in light of Ms. Santos’ tender years, and because information disclosing the clime’s federal status was “if not covert, ... at least oblique,” Ms. Santos had been prevented from asserting her rights in an extraordinary way, thus triggering equitable tolling. Id. at 202.
Jones’ effort to analogize his case to that of Ms. Santos is misplaced. As Jones well knew, the VAMC is a federal facility. Moreover, Jones was not diligent in pursuing his negligence claim. Rather, he waited almost three and a half years after sustaining injury to consult a lawyer. See Kubrick, 444 U.S. at 124 n. 10, 100 S.Ct. 352 (plaintiff did not exercise “all reasonable diligence” in pursuing his tort claim because “he sought no advice within two years [after his injury] as to whether he had been legally wronged”). The record does not show — and Jones does not suggest — that the VA prevented him from consulting with counsel sooner. See Hedges, 404 F.3d at 746, 752. Accordingly, his decision to wait until May 2003 to seek legal advice does not demonstrate the diligence necessary to make this an extraordinary case warranting the extension of equitable tolling.
Jones also appears to suggest that he mistakenly asserted his rights in the *441wrong forum. He contends (without any further explanation) that he “did everything he could to prosecute his claim for malpractice yet ended up in the wrong forum.” (Appellant’s Br. at 18.) This is a puzzling remark, given that Jones brought his claims in the correct fora: (1) he properly sought disability benefits from the VA; (2) he properly (albeit belatedly) filed his SF-95 with the VA and later brought suit in the District Court. Accordingly, Jones cannot show that he raised “the precise statutory claim in issue but has mistakenly done so in the wrong forum.” School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir.1981). Rather, he brought his FTCA claim in the correct forum after the claim was time-barred. Accordingly, the “wrong forum” equitable tolling requirement has not been met.
In sum, regardless of whether Jones was obligated to initiate his negligence claim by January 2002 or March 2003, it is evident that he acted outside the two-year limitations period. In the circumstances presented, we are constrained to conclude that Jones has presented a “garden-variety claim[] of excusable neglect,” not an extraordinary circumstance that warrants equitable tolling. Santos, 559 F.3d at 197 (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453). Because Jones’ claim is thus time-barred, the Magistrate Judge correctly determined that the United States was “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
V.
For the reasons discussed above, we will affirm the decision of the Magistrate Judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477743/ | OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
These matters come on before this Court on consolidated appeals from judgments of conviction and sentence entered on October 27, 2008, and certain earlier orders in these criminal proceedings in the District Court. Following the defendants’ convictions, the Court imposed custodial sentences followed by periods of supervised release on each defendant. For the reasons that follow, we will affirm.
II. BACKGROUND
At the times material to this case, defendants, now appellants, David and Anna Delle Donna, who are husband and wife, were public officials in Guttenberg, Hudson County, New Jersey, David being the mayor and Anna being a member of the Guttenberg Planning Board.1 (We will refer to appellants as “David” and “Anna” because of their common last name.)
This case focuses on the interplay between the actions of a local bar-owner, Luisa Medrano, and her sister Eduviges (“Duvi”) Medrano, on the one hand, and appellants on the other hand. (We will refer to the Medranos as “Luisa” and “Duvi,” again because of their common last name.) Luisa owned several bars in and around Guttenberg from which she derived a substantial income.2 In 2002 one of Luisa’s bars, the Puerta de la Union, ran into regulatory trouble with Guttenberg’s Alcoholic Beverage Commission (“ABC”), of which David as mayor was a member. Consequently, on May 4, 2002, there was a hearing that Luisa and Duvi attended before the ABC at which the bar’s license was subject to suspension.
During a break in the ABC proceedings, Duvi met Anna at a water fountain and the two women engaged in a brief conversation. Following the conversation Duvi informed Luisa that Anna was the mayor’s wife and it might be good for business if they could befriend her. Luisa agreed as she reasoned that her generosity to Anna would lead to the Delle Donnas helping *444her and that any money she spent on the Delle Donnas would be a small price to pay if it kept her bar in good standing. Consequently, the Medrano sisters intentionally set out to befriend Anna in the hope that she and her husband would perform favors in their capacities as public officials benefitting Luisa’s business.
Over the course of the next few years, Anna and Duvi became fast friends and Anna and Luisa also became friends, though to a less intense extent. The circumstance that Anna is fluent in Spanish, Luisa speaks only Spanish, and Duvi speaks Spanish and hesitant English furthered the development of the relationships. On the other hand, David does not speak Spanish and therefore never conversed with Luisa directly. Luisa testified that during the course of her friendship with Anna, she gave Anna numerous gifts including a sapphire necklace, hundreds of dollars in gift cards, liquor, face cream, a garage storage system, half of the cost of an expensive dog, thousands of dollars for gambling in Atlantic City, and money for breast surgery. The Delle Donnas denied receiving some of these items but David admitted that he knew that Luisa gave some of the smaller gifts to Anna and that Luisa had paid for half of the cost of the dog.3
The gift-giving, however, was not entirely one-way, and the record clearly shows that Anna thought of Duvi and Luisa as genuine friends. Anna gave Luisa a pocketbook, clothing, and earrings as gifts and Duvi was a regular guest at the Delle Donna household. The Delle Donnas were christened as godparents to Duvi’s two children, and the Delle Donnas gave expensive gifts to mark the occasion. When Duvi’s son needed emergency surgery to save his life, the Delle Donnas loaned Duvi the $5,000 that she needed. Accordingly, it is accurate to say that this case differs from the typical political corruption case in which the defendant public official receives benefits from a person seeking favors but does not reciprocate at his or her own expense.
Luisa testified that Anna promised to use her position on the planning board to assist her and that Anna promised to “speak with her husband” to help her businesses. App. at 921, 942, 948. Thus, when Luisa needed a building permit to convert a bar into an apartment, Anna promised to speak with her husband about helping her. In fact, Anna helped Luisa fill out an English-language application for the permit and then accompanied Luisa when she submitted the application to the building code supervisor. Two days later, David asked the code supervisor whether the permit was going to issue and then, one year later, asked how the process was going. The building inspector testified that the mayor and his wife showed a unique interest in Luisa’s project with his questions. In another matter the town garbage inspector testified that David asked him to “take care of’ several tickets that had been issued to Luisa, a request that the inspector thought was improper. David told a friend that he had to take care of Luisa’s tickets because his wife was pestering him about it.
*445David points out that there were two ABC hearings during his time as mayor directly involving Luisa’s businesses, one involving discipline and one dealing with a license application, and in both cases he recused himself. David, however, did not recuse himself when Luisa’s liquor licenses were up for annual renewal because the Guttenberg municipal attorney advised him that he did not need to recuse in such “pro forma” matters.
After the government arrested and interrogated Luisa it began investigating the Delle Donnas. That investigation led to the return of a superseding indictment charging the Delle Donnas with five counts of criminal conduct: conspiracy to commit mail fraud under 18 U.S.C. §§ 1341, 1346, 1349 (Count One); mail fraud under 18 U.S.C. §§ 1341, 1346 (Count Two); conspiracy to commit extortion under color of official right under 18 U.S.C. § 1951(a) (Count Three); filing a false income tax return with respect to rental income under 26 U.S.C. § 7206(1) (Count Four); and filing a false income tax return with respect to gifts received under 26 U.S.C. § 7206(1) (Count Five). The Delle Donnas made a pretrial motion in which they asked the Court to sever Count Four from the indictment for the trial as they argued that the count was not related factually to the remaining counts. At the same time the Delle Donnas asked the Court to sever Count Five so that the tax counts could be tried together. The Court, however, denied this request in an opinion and order dated March 14, 2008, and thus the Court tried all five counts against both defendants at a single trial.
At the conclusion of a lengthy trial at which the Delle Donnas testified, the Court, over Anna’s objection, gave an instruction explaining when a defendant with a mixed motive for her conduct, partially corrupt and partially neutral “like friendship,” can be guilty of extortion. Thereafter the jury acquitted the Delle Donnas on the mail fraud counts (Counts One and Two) but returned a guilty verdict against them on the extortion and tax evasion counts (Counts Three, Four, and Five). The Delle Donnas filed a joint motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on the extortion count (Count Three), but the District Court denied this request in an order dated April 29, 2008.
At sentencing, the District Court calculated similar advisory guideline sentencing ranges for David and Anna except that the Court enhanced David’s sentence by 2 levels under U.S.S.G. § 3C1.1 for obstruction of justice by reason of its belief that David must have committed perjury during his testimony on the conspiracy and tax counts because the jury did not accept that testimony. The Court’s sentencing calculations led to it determining David’s advisory guideline sentencing range as 63 to 78 months, based on an offense level of 26 and a criminal history category of I. Anna’s advisory guideline sentencing range was 51 to 63 months, based on an offense level of 24 and a criminal history category of I. The Delle Donnas argued that the advisory guideline sentencing ranges produced unduly severe sentences when compared to the sentences imposed in the district court in New Jersey on similarly situated defendants. In support of this contention the Delle Donnas submitted a list of 41 public figures convicted of criminal offenses involving public corruption in the District of New Jersey on whom district courts recently had imposed sentences below the Delle Donnas’ guideline sentencing range. The Delle Donnas argued that the Court when sentencing them should take these other sentences into account pursuant to 18 U.S.C. § 3553(a)(6) which provides that a court should avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar *446offenses. The Court reviewed the list of allegedly similar cases but concluded that many of the crimes for which the other defendants had been convicted were not similar to the Delle Donnas’ offenses and refused to vary from their guideline sentencing ranges by reason of those cases.
The District Court imposed custodial sentences of 51 months on both Anna and David on the extortion conspiracy count and 36-month custodial sentences on both tax counts, all custodial sentences to run currently, to be followed by concurrent two-year terms of supervised release on each count. The Court recognized that David’s suggested advisory guideline sentencing range was higher than Anna’s but concluded that “a fairer and more equitable result will be achieved by issuing both Anna and David Delle Donna the same sentence.” App. at 3657. In addition, the Court fined each defendant. The Court subsequently issued final judgments of conviction and sentence for Anna and David on October 27, 2008.
The Delle Donnas separately appealed but the clerk of our Court consolidated their appeals for briefing and argument. The Delle Donnas challenge the District Court’s (1) refusal to sever the rental tax evasion charges contained in Count Four, (2) use of the term “like friendship” in the jury instructions when addressing when a defendant acting with a partially corrupt and partially neutral motive for his or her actions can be guilty of extortion, (3) denial of their Rule 29 acquittal motion, (4) enhancement of David’s guideline sentencing range for obstruction of justice, and (5) refusal to reduce the sentences to conform to lower sentences given to similarly situated New Jersey public figures.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 28 U.S.C. §§ 1291, 3742(a). We will not reverse a criminal conviction by reason of insufficiency of the evidence unless the evidence viewed in the light most supportive of the fact-finder’s decision cannot support the verdict. United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992). But we review questions of law, such as the legal appropriateness of a join-der of offenses, de novo. United States v. Thornton, 1 F.3d 149, 152 (3d Cir.1993). We review questions over which a district court has discretion, such as the discretionary joinder of offenses, to determine if the court has abused that discretion. United States v. Lore, 430 F.3d 190, 205 (3d Cir.2005).
IV. DISCUSSION
A. Denial of Motion to Sever Rental Tax Evasion Charge (Count Four)
The Delle Donnas owned numerous residential properties that they rented to lower-income tenants, several of whom testified at trial. These tenants testified that they received housing assistance which paid most of their rent and that they paid the remainder of their rent directly to the Delle Donnas. The government argued that the Delle Donnas did not report all of this rental income on their tax returns, and the grand jury charged the Delle Donnas with tax evasion for failing to do so (Count Four).
As we have indicated, before the trial, the Delle Donnas made a motion to sever Count Four from the indictment, arguing that as a matter of law it should be severed because it was prejudicial to try a charge for commission of what essentially was a completely separate crime at the same time as the other charges. They also contended that the District Court as a matter of discretion should sever Count Five from Counts One, Two, and Three so that the two tax counts could be tried *447together. The Delle Donnas argued that a jury might find them guilty of not reporting their rental income for income tax purposes and then conclude that the Delle Donnas similarly must be guilty of the other charges (or vice versa). This fear was not unfounded because at the trial the government asserted that each count of the indictment reflected on every other count of the indictment, thereby making the exact connection that the Delle Donnas anticipated. Indeed, during its opening statement the government explained that the Delle Donnas had not reported their rental income on their tax returns and then told the jury, “[YJou’ll hear that in the same way that the Defendants were not reporting to the State of New Jersey all the cash contributions and gifts that they got from Luisa Medrano, they were also not reporting the full scope of their income to the Federal Government.” App. at 183. During closing arguments, the government reiterated that “all five counts in the indictment” concerned “corruption, concealment, and fraud.” App. at 3120.
The government opposed the Delle Don-nas’ motion to sever Count Four and Count Five. It contended that: (1) Count Three alleged a conspiracy to commit extortion; (2) Count Five alleged that the Delle Donnas evaded taxes when they did not report the extortion payments and therefore Count Five properly was joined to Count Three; and (3) Count Four properly was joined to Count Five because both counts charged tax evasion. The government also pointed out that the Delle Donnas’ accountant was scheduled to testify, so it would not complicate the trial unnecessarily to inquire into the Delle Donnas’ rental income at a trial on the other counts. Citing judicial economy, the Court rejected the Delle Donnas’ request to sever Count Four and Count Five but it did charge the jury that each count alleged a separate crime and that the jury should consider each count separately.
Rule 8(a) of the Federal Rules of Criminal Procedure governs the joinder of offenses and Rule 8(b) governs the joinder of defendants. Though, in terms, Rule 8 suggests that Rule 8(a) should govern here, we have held that Rule 8(b) should be applied to cases involving multiple defendants even when the issue is the joinder of offenses. United States v. Irizarry, 341 F.3d 273, 287 (3d Cir.2003). Rule 8(b) permits joinder if the two offenses relate to “the same act or transaction, or ... the same series of acts or transactions.” Nevertheless, inasmuch as the strictures of Rule 8 are not of constitutional magnitude, even if joinder is not proper under Rule 8 there will not be a reversible error unless the mistake had a substantial effect on the outcome of the proceedings. United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). But even in cases in which it is technically proper to have a joinder under Rule 8, a defendant may move for a severance under Federal Rule of Criminal Procedure 14 to prevent prejudice. The Delle Donnas made a Rule 14 motion in this case, so both Rule 8 and Rule 14 are implicated on this appeal.
Though we recognize that the government’s contention that Count Four is based on the same tax evasion statute as Count Five and that Count Five is related to Count Three is correct, and though we are well aware that joint trials promote efficiency in the pursuit of justice, United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005), we think that it would be superficial to end our inquiry into the joinder and severance questions with these observations. In its essence the superseding indictment alleges in Count Three that the Delle Donnas promised official favors in exchange for money and gifts. Clearly, the fact that they were not reporting all of their rental income for tax purposes hardly is related to the basic circumstances of Count Three, and it is troublesome when the government plays “eonnect-the-dots” *448in the manner it has done in this case. By-linking one crime to another, statute by statute or subject by subject, the government can combine several cases in one. See United States v. Gentile, 60 F.R.D. 686, 688 (E.D.N.Y.1973) (“[T]he government has an obligation to allege more than that the offenses are of a similar nature or that there are common participants.”). Such linking permitted the government to add charges related to the Delle Donnas’ conduct as landlords to unrelated extortion activity. The connecting of the dots is obvious because the charges against the Delle Donnas as landlords involved a failure to report income on rent under Count Four, which relates to failure to report income on the fruits of the extortion under Count Five, which, in turn, relates to the political corruption at issue in the case charged under Count Three.
Yet we will not reverse a conviction by reason of misjoinder of offenses unless the misjoinder had a substantial effect on the outcome of the proceedings. Lane, 474 U.S. at 449, 106 S.Ct. at 732. We think that here the misjoinder, assuming that there was one, could not have had a substantial effect on the trial. The rental income issue was relatively simple, and there was very little testimony devoted to it during the lengthy trial. See Lore, 430 F.3d at 205 (jury easily could compartmentalize separate charges when extra charge was “relatively straightforward and discrete, not involving overly technical or scientific issues”). The District Court explained to the jury that each count of the indictment alleged a separate crime and the jury clearly understood this fact, as demonstrated by the circumstance that, after five days of deliberation, it returned not guilty verdicts on Counts One and Two and guilty verdicts on the remaining counts. This jury performed its function with great care. Therefore, we will reject the Delle Donnas’ challenge to the joinder of Count Four under Rule 8. Furthermore, we do not think that the District Court abused its discretion under Rule 14 by refusing to sever Count Four when that refusal did not have a substantial effect on the trial. See United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981) (defendant must demonstrate “clear and substantial prejudice resulting in a manifestly unfair trial” before court will reverse district court’s exercise of discretion under Rule 14). It follows that the Court did not err in not severing Count Five as the severance of that count depended on the severance of Count Four.
B. Use of “Like Friendship” As a Specific Example in Jury Instructions
At trial, Anna argued that she acted solely out of friendship with the Medrano sisters, and thus she exchanged gifts with Anna and gave standard promises to help her and that the case involves nothing more. The District Court gave a “dual motive” instruction to the jury which stated that a person commits extortion under color of official right when that person has “a partly corrupt intent and a partly neutral intent, like friendship.” App. at 3378. At the trial Anna argued that the instruction undermined her defense because it used “friendship” as a specific example of a neutral intent even though she based her defense on her contention that she acted solely out of friendship in aiding Luisa. The Court denied Anna’s request and it used the “friendship” instruction in its charge to the jury.
Anna recognizes that the District Court’s charge correctly stated the law,4 *449but argues that the instruction nevertheless was misleading. She explains that “[t]he problem is that the district court seized upon Mrs. Delle Donna’s defense theory and suggested impermissibly to the jury that Mrs. Delle Donna’s friendship with Luisa Medrano was sufficient evidence of intent to commit extortion.” Appellants’ br. at 40. Furthermore, “the judge’s instructions eviscerated Mrs. Delle Donna’s defense.” Appellants’ reply br. at 13. Anna contends that by mentioning friendship as an example of neutral intent, the Court “led the jurors to conclude that Mrs. Delle Donna could be guilty of extortion simply by being Luisa Medrano’s friend.” Id. at 13-14.
We exercise plenary review when determining if a jury instruction correctly states the law, and, when the instruction passes that threshold requirement, we review a district court’s wording of the instruction for an abuse of discretion. See United, States v. Jimenez, 513 F.3d 62, 74-75 (3d Cir.2008). We conclude that an instruction is erroneous when we are left with a “substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” United States v. Traitz, 871 F.2d 368, 383 (3d Cir.1989) (questioning whether trial court should have used the word “hustle” in its instructions) (quoting Somer v. Johnson, 704 F.2d 1473, 1477-78 (11th Cir.1983)). Though a district court should be careful when including specific examples in jury instructions, such a use of examples is not inherently questionable. Quite to the contrary, it may be useful when attempting to explain legal issues to jurors to use concrete exam-pies. After all, the Supreme Court has indicated that “[i]n charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence [or] by drawing their attention to the part of it which he thinks important.” Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933). Of course, a reference to the evidence in the case at bar will be a reference to a specific situation.
We are satisfied that the District Court’s instruction did not prejudice Anna’s defense. To start with, as Anna recognizes, it was a correct statement of law. Furthermore, it did not give any suggestion (positive or negative) of the Court’s personal view of the case and it was not confusing or misleading.5 We simply disagree with Anna’s assertion that the instruction might have led jurors to believe that Anna could be guilty of extortion “simply by being Luisa Medrano’s friend” or could be guilty if she assisted Luisa solely by reason of their friendship. In short, Anna does not explain why the instruction might have been misleading, and, instead, simply asserts that it was misleading. We will uphold the District Court on this point.
C. Motion for Judgment of Acquittal on Extortion Charge (Count III)
The Delle Donnas argue that the evidence was insufficient to convict them on the extortion count (Count Three), and thus the District Court erred in denying their Rule 29 motion on that count.6 But *450as we often have indicated a defendant challenging the sufficiency of the evidence bears a heavy burden. See United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992). Furthermore, we will not weigh issues of credibility, for that is the jury’s province. United States v. Inigo, 925 F.2d 641, 649 (3d Cir.1991). Accordingly, if witnesses have given differing accounts of an event, on an appeal from a conviction we accept the account more favorable towards the government and we view all facts in the light most favorable to the government. United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006). Only after viewing the record in this way do we ask, “Was there enough evidence to support the conviction?”
A public official commits extortion under color of official right under 18 U.S.C. § 1951(a) when the official promises to engage in an official act in exchange for a personal gift. Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 1889, 119 L.Ed.2d 57 (1992). Unless the “gift” is a campaign contribution, the quid pro quo between the public official and the gift giver can be implicit. United States v. Antico, 275 F.3d 245, 257 (3d Cir.2001). Consequently, the official does not have specifically to promise anything in return, as long as all parties involved recognize that a gift is being given in exchange for official action. A wink and a nod is good enough.7 Also, the official does not have to promise to perform a specific action in exchange for a specific gift; instead, the official can accept a “stream of benefits” in exchange for one or more official acts as though the official is on a retainer. See United States v. Kemp, 500 F.3d 257, 282 (3d Cir.2007).
The grand jury indicted Delle Donnas for conspiracy to commit extortion under color of official right so the government had the burden at the trial to demonstrate the presence of the elements of a conspiracy. A conspiracy can be formed when two people agree to commit extortion, each co-conspirator has an intent both to conspire and to achieve the aims of the conspiracy, and an overt act is taken in furtherance of the conspiracy’s goals. See, e.g., United States v. Conley, 37 F.3d 970, 976-77 (3d Cir.1994); United States v. Inigo, 925 F.2d 641, 652 (3d Cir.1991).
With these legal principles in mind, we turn to the evidence. Perhaps the most damning evidence against the Delle Don-nas was the nature of the gifts that Luisa gave them. The evidence revealed that Luisa provided the Delle Donnas with a bounty of gifts wholly incompatible with the idea that she gave the gifts out of friendship. For example, a jury surely could believe that gifts of thousands of dollars for gambling in Atlantic City, construction of a garage storage closet, and cosmetic breast surgery are not the type of gifts that friends normally give friends. Moreover, Anna not only received these gifts but actually requested some of them. Duvi testified that Anna knew that the gifts were “business.” Other testimony showed that David was present when certain gifts were exchanged, and he confirmed that he knew about some of the gifts. We agree with the government’s contention that “Luisa provided a stream of cash, gifts, and benefits which would have alerted any recipient that [her] inten*451tions were not simply friendly.” Appel-lees’ br. at 38. We also agree with the District Court which concluded that a reasonable jury could find that the Delle Don-nas knew they were receiving these gifts in exchange for official acts.
Significantly, the Delle Donnas did not receive Luisa’s gifts passively. Anna directly promised to help Luisa and to speak with David about helping Luisa on various matters, as for example, when Luisa wanted a permit to convert a bar into an apartment. David took care of garbage tickets that were issued to Luisa. Though the evidence could not support a finding of an explicit quid pro quo, i.e., gifts in exchange for actions, and though, as we have indicated, the case is unusual as to a degree the gifts went in both directions, we think that a reasonable jury could have found an implicit quid pro quo based on the facts brought forth at trial; therefore, we must affirm.
D. Objection to Sentencing Enhancement for Perjury
David testified, denying much of Luisa’s and Duvi’s testimony as well as the charge that he had failed to report his rental and gift income for tax purposes. After the jury returned a guilty verdict, the District Court found that the jury “necessarily concluded” that David had not testified truthfully because the jury convicted him of wilfully filing a false income tax return, a charge he expressly denied, and because the jury must have rejected his testimony on the extortion charge. On appeal, David argues that the Court effectively penalized him for exercising his constitutional right to defend himself against the government’s allegations, something against which the guidelines specifically warn. See U.S.S.G. § 3C1.1 cmt. 2 (“This provision is not intended to punish a defendant for the exercise of a constitutional right.”).
While it is important to ensure that defendants are not punished for exercising their constitutional right to testify in their own defense, we conclude that David’s sentence was not actually enhanced on account of his testimony. The District Court calculated a higher advisory sentencing guideline range for David by reason of the obstruction of justice than it otherwise would have calculated, but then it imposed a below-guideline sentence on him because it thought that the Delle Donnas should receive the same sentence. The only difference in the calculations to determine David’s advisory guideline sentencing range and Anna’s advisory guideline sentencing range was the enhancement of David’s range by reason of his perjury; therefore, the Court effectively removed the enhancement for perjury from its calculation of David’s sentence though not from his advisory guideline sentence range. Thus, we do not need to determine if the enhancement was warranted as we are confident that David received the same sentence he would have received if the Court had not made the enhancement.8
*452E. Request for Sentence Reduction Based on Sentences Given to Other Public Figures
After a court determines a defendant’s suggested guideline sentence, it considers whether that sentence is justified under the factors enumerated in 18 U.S.C. § 3553(a). See United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc). The subsection at issue in this case, subsection 3553(a)(6), states that a sentencing court should “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” We will affirm a sentencing court’s decision regarding the section 3553(a) factors “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
The Delle Donnas argue that the District Court did not give “meaningful consideration” to the section 3553(a) factors and, instead, only gave them “lip service.” Appellants’ br. at 59-60. But the record does not support this assertion as it makes clear that the Court considered the evidence the Delle Donnas put forward regarding sentences given to other public figures in New Jersey. The Court found that many of these cases were distinguishable for various reasons; they presented “different facts, different circumstances, and different Guideline ranges.” App. at 3649. Accordingly, the Court refused to reduce the Delle Donnas’ sentences under section 3553(a)(6) because that section only applies to defendants with similar records who have been found guilty of similar conduct. We cannot say that this determination was unreasonable, and we therefore will affirm the sentence.
Y. CONCLUSION
We will affirm the District Court’s orders of March 14, 2008, and April 29, 2008, and the judgments of October 27, 2008. Thus, we are upholding the denial of the severance of Counts Four and Five, the rejection of Anna’s challenge to the jury instructions, the denial of the motion for an acquittal, and the rejection of the section 3553(a) disparity argument.
. The government charged the Delle Donnas with conspiracy to commit extortion by promising to use their public offices in exchange for money and gifts. Inasmuch as both Anna and David were public officials they each could commit the unlawful act, but our review of the record indicates that the government primarily was concerned with the misuse of David's mayoral office, an activity in which Anna is alleged to have conspired.
. Luisa enhanced her income by employing illegal workers and failing to pay certain of her taxes. Many of her workers were smuggled into this country illegally and then were forced to work as prostitutes to pay off their debts for the smugglers' services. In 2003, the government began an investigation into this human trafficking, and eventually a grand jury indicted Luisa on charges which carried a potential sentence of 250 years in prison. During a subsequent interrogation, Luisa informed the federal authorities about the Delle Donnas' alleged misconduct, thereby triggering the investigation that led to this prosecution. After further investigation, the government decided that Luisa was not a primary participant in the human trafficking scheme and dropped many of the most severe charges against her. The government eventually offered Luisa a plea incentive in exchange for her testimony against the Delle Donnas. After the Delle Donnas’ conviction, Luisa was given substantial credit for her cooperation and the court sentenced her to a term of three years of probation and a period of home confinement. Supp. App. 7-8 (government describes Luisa as the “heart of [the] case” against the Delle Donnas). These circumstances make it clear that Luisa had an incentive to testify falsely so as to incriminate the Delle Donnas, but we recognize that the assessment of Luisa’s credibility was a matter left to the jury. See United States v. Haut, 107 F.3d 213, 220 (3d Cir.1997).
. The government also asserts that Luisa gave money and paid for volunteers to benefit David’s re-election campaigns. We do not make further reference to these assertions because the government acknowledges that it does not have evidence of an explicit quid pro quo between the Delle Donnas and Luisa with respect to these payments, and it acknowledges that campaign contributions cannot satisfy a quid pro quo requirement for a criminal conviction arising from the payment and receipt of the contributions unless the agreement was explicit. See McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 1816, 114 L.Ed.2d 307 (1991).
. In the District Court, Anna's attorney stated, “It is not that it is an incorrect proposition of law about dual intent. But to use that pariic-ular example, particularly in light of the arguments made ... I think unduly highlights ... that particular notion.’’ App. at 3406-07.
. Anna suggests that the following instruction would have been more appropriate. "If you find that Mrs. Delle Donna acted out of friendship alone, then she did not act with criminal intent, and you must return a verdict of not guilty on the extortion charge.” Appellants’ reply br. at 14. This instruction makes the same point as the challenged instruction, but phrases the matter in the negative. While Anna might have preferred that the District Court have used her instruction, she has not shown why the Court committed error by using its own version.
. The Delle Donnas did not challenge the sufficiency of the evidence on Counts Four *450and Five in the District Court and do not challenge it here either.
. Of course, it is hard to demonstrate what people are thinking if they do not express themselves. In this case, Duvi testified that Anna knew the gifts were “business.'' Apart from Duvi’s testimony as to Anna's private thoughts, the government argues that a trier of facts can draw an inference that there was an agreement from the nature of the gifts and from the Delle Donnas' actions assisting Luisa.
. We recognize that, in theory, the District Court might have increased Anna's sentence to match the sentence that it imposed on David and thus penalized Anna for David’s obstruction of justice. We are satisfied, however, that this did not happen because the Court sentenced both Delle Donnas at the bottom of Anna's guideline range and thus below the bottom of David's higher range. Plainly, Anna’s sentence anchored David’s sentence.
We also recognize that we have emphasized the separate character of calculations under the United States Sentencing Guidelines and variances under 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d 237 (3d Cir.2006). Our decision to look to the bottom line of the sentencing here is not at odds with that emphasis. Under sentencing framework set out in Gunter, the separate application of the Sentencing Guidelines before consideration of the sentencing factors under section 3553 is necessary to appellate review since, without that *452approach, we are "unable to determine whether the [District] Court denied ... [a departure] motion because if concluded there was no basis to grant it ... or because the Court was exercising its discretion^]” a distinction that bears on our standard of review. United States v. Lofink, 564 F.3d 232, 240 (3d Cir.2009). Here, the essential function of separate treatment has been vindicated by the District Court’s adherence to the Gunter framework, and we are free to observe that, at the end of the sentencing process, David is in the same position he would have been in had there been no decision to impose a Guidelines enhancement. | 01-04-2023 | 11-05-2022 |
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