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https://www.courtlistener.com/api/rest/v3/opinions/8477914/ | OPINION
PER CURIAM.
Petitioners Bing Ayu Puspita, Wibisono Alianto, Sherin Alianto, and Steffi Alianto seek review of a June 30, 2008, final decision by the Board of Immigration Appeals (“BIA”) dismissing their appeal. For the reasons that follow, we will deny the petition for review.
I. Background
Puspita,1 a native and citizen of Indonesia, is an ethnic Chinese Christian. She and her family arrived in the United States in October 2004 and overstayed their visitors’ visas. In March 2005, Pus-pita applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) for herself and her family, claiming past persecution and a fear of future persecution and torture on account of ethnicity and religion. Specifically, Puspita claims to fear violence by Muslims against ethnic Chinese Christians, particularly since A1 Qaeda’s bombing of a Bali nightclub in October 2002.
The Department of Homeland Security initiated removal proceedings. After a hearing, the Immigration Judge (“IJ”) issued an oral decision on November 2, 2006. The IJ concluded that Puspita failed to show that she suffered past persecution in Indonesia. He concluded that certain aspects of her testimony were implausible and he questioned her motivation for leaving Indonesia, particularly because Puspita *353conceded that the Bali bombing was directed at western tourists and not at ethnic Chinese Christians. The IJ found that the objective evidence did not support Pus-pita’s future persecution claims, and concluded that she did not meet her burden of proof. The IJ therefore denied her application.
Puspita appealed to the BIA. On June 30, 2008, the BIA dismissed the appeal. This petition for review followed.
II. Analysis
In cases where, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, [this Court has] authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the rejection of Pus-pita’s claim under the deferential substantial evidence standard. Id. at 223. We will not disturb the decision that Puspita failed to meet her burden of proof “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008).
Puspita’s arguments relate exclusively to her claim of a “pattern or practice of persecution” of ethnic Chinese Christians in Indonesia. See 8 C.F.R. §§ 1208.13(b)(2)(iii)(A), 1208.16(b)(2)(i). To meet her burden of proof, Puspita was required to present objective evidence demonstrating that persecution of ethnic Chinese Christians in Indonesia is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005).
A.
Our case law has not conclusively addressed whether or not there is a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. See Sukwanputra v. Gonzales, 434 F.3d 627, 637 n. 10 (3d Cir.2006). However, we have recently considered State Department Reports from 1999, 2003, and 2004, and have concluded that the reports do not demonstrate persecution sufficiently “systemic, pervasive, or organized” to constitute a pattern or practice. See Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008); Lie, 396 F.3d at 537.2 We have also noted that recent State Department reports reflect improving treatment of ethnic Chinese Christians in Indonesia. See Wong, 539 F.3d at 234.
Puspita attempted to establish a pattern or practice of persecution of ethnic Chinese Christians by primarily relying upon four State Department reports3: the 2001 and 2003 Country Reports on Human Rights Practices in Indonesia, see A.R. 262-98; A.R. 315-51, and the 2002 and 2006 International Religious Freedom Reports, see A.R. 110-21; A.R. 300-13. These reports are largely the same as those we addressed in Lie and Wong. In *354particular, as in Lie and Wong, Puspita’s proffered State Department reports contain evidence undermining her pattern or practice claim.4
Based upon our review of Puspita’s record evidence, and guided by our decisions in Lie and Wong, we conclude that substantial evidence supports the BIA’s decision. The record does not compel the conclusion that there is a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Wong, 539 F.3d at 233-34; Lie, 396 F.3d at 537.
B.
Puspita does not make any meaningful attempt to argue that the objective evidence compels a different conclusion. See Yu, 513 F.3d at 348. Instead, she claims that legal error requires that her case be remanded for additional factfinding. Specifically, she claims: (1) that the IJ’s fact-finding was insufficient and the BIA inappropriately engaged in de novo factfinding; and (2) that the BIA inappropriately took administrative notice of disputed pattern or practice evidence and, in violation of her right to due process, did not permit her to present evidence in rebuttal. Puspita’s claims lack merit.
(1)
The BIA concluded that the IJ applied an erroneous legal standard to Puspita’s pattern or practice claim, but held that the error was harmless because the evidence was insufficient to establish her claim under the correct standard.5 Puspi-ta contends that because the IJ did not consider her evidence under the correct standard in the first instance, the BIA did not have a sufficient record upon which to rest its decision.
We disagree. The BIA relied upon the IJ’s findings concerning Puspita’s objective evidence, including the finding her proffered State Department reports undermined her claim. See IJ’s Decision, A.R. 12-13 (quoting the 2006 State Department report, and concluding that “[t]hese may be defined as acts of discrimination, but they are not acts of persecution.”). The BIA concluded that the IJ’s factfinding was not clearly erroneous,6 see BIA Decision, A.R. 5 (citing 8 C.F.R. § 1003.1(d)(3)), and then appropriately applied the correct legal standard to those facts. See 8 C.F.R. § 1003.1(d)(3)(ii) (the BIA may review questions of law de novo). We see no error in this approach.
(2)
Before the BIA, Puspita attempted to distinguish her pattern or practice claim from our decision in Lie by arguing that the Lie decision rested upon older State Department reports. Specifically for the purpose of addressing her concern, the BIA took administrative notice of a more recent 2007 State Department report, and concluded that the 2007 report also failed to establish “systemic, pervasive, or organized” persecution of ethnic Chinese Christians. See Wong, 539 F.3d at 234. Puspita contends that the BIA erred because the facts in the 2007 State Department *355report are in dispute and the BIA cannot take administrative notice of disputed facts. She also contends that Due Process required that she be permitted to present evidence in rebuttal.
We reject Puspita’s arguments. The BIA is permitted to take administrative notice of certain facts within its area of expertise, see 8 C.F.R. § 1003.1(d)(3)(iv); Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003), including State Department Country reports. See 67 Fed. Reg. 54878, 54892-3 (Aug. 27, 2002) (listing DOS country condition reports as an example of what was intended by the term “official documents” in the regulation). Indeed, this Court has encouraged the BIA to view applicants’ claims in light of current country conditions. See Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.2004).7 Under the regulations, Puspita should have anticipated that the BIA could take notice of the 2007 State Department report.
Moreover, Puspita placed the report at issue. The BIA took notice of the report in response to Puspita’s contention that the information in earlier State Department reports — specifically, the information underlying our decision rejecting the pattern or practice claim in Lie — is now stale. As a result, she may not fault the BIA for considering the more recent 2007 report in the course of rendering its decision.8
III. Conclusion
Puspita bore the burden of demonstrating the existence of a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. The BIA concluded that her objective evidence was insufficient and, as a result, Puspita failed to meet that burden. Because the record does not compel a contrary conclusion, see Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 the BIA’s decision rests upon substantial evidence. We therefore will deny the petition for review. Puspita’s motion to file a supplemental appendix is denied.
. Puspita is proceeding on behalf of herself, her husband, Wibisono Alianto, and their two children, Sherin and Steffi Alianto. For purposes of this opinion, we will refer only to Puspita.
. For example, the 2003 and 2004 State Department Reports "generally emphasize the steps taken by the Indonesian government to promote religious, racial, and ethnic tolerance and to reduce interreligious violence ... [and] indicate that private parties, not government officials, are the predominant cause of harassment and violence.” Wong, 539 F.3d at 233-34.
. Puspita also submitted expert affidavits by Dr. Jeffrey Winters and Jana Mason. We have reviewed the affidavits and cannot conclude that they establish "systemic, pervasive, or organized” persecution against Chinese Christians in Indonesia. See Lie, 396 F.3d at 537. Moreover, we note that the petitioner in Wong similarly relied on an affidavit from an expert on Indonesian country conditions, Wong, F3d F.3d at 229, and as in Wong, Puspita’s expert affidavits do not undermine the factual findings based upon the State Department reports. As we have previously stated, "Country reports ... are the most appropriate and perhaps the best resource of information on political situations in foreign nations.” Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir.2003).
.For example, the 2006 State Department Report on International Religious Freedom notes that "the Government generally respected freedom of religion," that "[t]here was little change in respect for religious freedom during the period covered by the report,” and that "[m]ost of the population enjoyed a high degree of religious freedom." A.R. 110.
. The BIA concluded that the IJ erred by stating that, in order to establish a "pattern or practice” of persecution of ethnic Chinese Christians in Indonesia, Puspita was required to show that she personally suffered past persecution.
. Puspita does not dispute this conclusion.
. Although Puspita cites Berishaj in support of her argument that Due Process demands that she be permitted to rebut the BIA's finding, the portion of Berishaj to which she cites discussed the opportunity to rebut evidence considered for the first time on appeal to this Court, not the BIA's ability to consider evidence of current country conditions. Id. at 330. Indeed, in Berishaj, we specifically called upon the BIA to consider current country information where possible, so that our Court may avoid review of administrative records “so out-of-date as to verge on meaningless.” Id. at 331.
. In addition, the BIA’s consideration of the 2007 State Department report was not determinative of whether Puspita met her burden of proof on her pattern or practice claim. The BIA reached its decision that "the evidence of record is insufficient” before it considered the 2007 report. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477916/ | OPINION
PER CURIAM.
In October 2009, Arthur D’Amario filed a motion under 28 U.S.C. § 2255 to vacate his federal conviction for violation of 18 U.S.C. § 115(a)(1)(B).1 The motion was filed in the United States District Court for the District of New Jersey, and the case was assigned to The Honorable Robert B. Kugler. In December 2009, the Chief Judge of this Court issued an order reassigning D’Amario’s case to the Honorable Paul S. Diamond, pursuant to 28 U.S.C. § 292(b). D’Amario filed the instant mandamus petition in January 2010, requesting two forms of relief: (1) that Judge Diamond be ordered to recuse himself from D’Amario’s § 2255 proceedings; and (2) that the District Court be ordered to “immediately hear [D’Amario’s] applications for release pending retrial and/or resentencing.” We will deny the petition.
I.
Mandamus is a drastic remedy available only in the most extraordinary of circumstances. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005). It is not a substitute for an appeal. See In re Chambers Dev. Co., 148 F.3d 214, 226 (3d Cir.1998). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.1996).
II.
We first address D’Amario’s request to have Judge Diamond recuse himself from D’Amario’s § 2255 proceedings. In some cases, mandamus is the appropriate vehicle to review a district court judge’s refusal to recuse himself or herself from a case. See In re Ardor, 71 F.3d 97, 101 (3d Cir.1995). However, mandamus is an extraordinary remedy, and “courts of appeals must be chary in exercising that power.” In re School Asbestos Litig., 977 F.2d 764, 772 (3d Cir.1992). Nowhere in D’Amario’s five-page character assassination of Judge Diamond do we find a basis to compel recusal. As a result, we will not exercise our mandamus power in that regard.
III.
Nor will we compel the District Court to adjudicate D’Amario’s applications for immediate release pending disposition of his § 2255 motion. As a general rule, the manner in which a court disposes of cases on its docket is within its discretion. See In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982). Indeed, given the discretionary nature of docket management, there can be no “clear and indisputable” right to have the district court handle a case on its docket in a certain manner. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). While mandamus may be warranted where a district court’s delay is tantamount to a failure to exercise jurisdiction, see Madden, 102 F.3d at 79, this case obviously does not present such a situation.
*357Accordingly, we will deny D’Amario’s mandamus petition.
. The motion was accompanied by an application for immediate release pending disposi-lion, and a motion for summary judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477924/ | OPINION
WEIS, Circuit Judge.
Plaintiff is a professor on the faculty of The Pennsylvania State University. She *366filed suit in September 2006, alleging that the University discriminated against her on the basis of race and gender, failed to accommodate her disability, and condoned a hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981 et seq.; 42 U.S.C. § 12101 et seq.; and Title IX, 20 U.S.C. § 1681 et seq. She also contended that the University had breached a prior Settlement Agreement. The District Court entered summary judgment for defendant on all claims. After a careful review, we will affirm.
Plaintiff resigned as Dean of the University’s Office of International Programs in 2002 and resumed her position as a tenured full professor in the College of Education, agreeing to “perform the normal and customary functions, duties and responsibilities of’ that position as assigned by her department head. However, differences arose between plaintiff and her colleagues soon thereafter.
The plaintiff’s grievances were numerous and well-documented, as illustrated by the voluminous record. They included claims that her salary increases and opportunities for promotion lagged in comparison to those of her colleagues and that the University failed to adequately and promptly accommodate her requests for an “ergonomically correct” office and first-or business-class air travel. She also alleged that she was not permitted to teach the number or type of courses she requested and was treated disrespectfully by students, colleagues, and administrators alike.1
The District Court performed an extensive analysis of the plaintiffs allegations and found no genuine issue of material fact. We exercise plenary review over that determination. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008).
The racial and gender discrimination claims were properly analyzed under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We agree with the District Court that plaintiff pointed to no “evidence from which a factfinder could reasonably conclude that the [University’s] proffered reasons” for limiting her salary increases — her already substantial salary and comparatively weaker performance— “were fabricated.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994).
As for the allegations regarding classes and course load, the University produced evidence that plaintiff has been able to teach most of the courses she requested and obtained a lighter schedule without securing external funding as required. Again, plaintiff failed to demonstrate that these responses were pretextual.
We also agree with the District Court that the handling of the plaintiffs travel and office furnishings requests was not the result of discriminatory animus. The record shows that the University departed from policy and actually increased the usual travel allowance for the plaintiffs benefit. Likewise, the record reveals that the University made many efforts to accommodate the plaintiffs request for an “ergonomically correct” office, but plaintiff often failed to cooperate.2
*367The District Court was not persuaded that several discrete incidents cited by plaintiff amounted to evidence of a hostile work environment. Nor are we. See Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999) (listing elements of hostile work environment claim, including, inter alia, “pervasive and regular” discrimination (citation omitted)). Finally, we agree with the District Court that plaintiff failed to prove that the University breached the Settlement Agreement.3
In closing, we note our agreement with the district judge that, on this record, it appears that the University made every effort to accommodate plaintiff. We commend the District Court for its painstaking-survey of this case. Finding no reversible error, we will affirm.
. Before instituting this suit, plaintiff filed employment discrimination charges with the EEOC in January 2005. In April and October of that same year, she filed complaints with the Pennsylvania Human Relations Commission.
. Relatedly, we find that the plaintiff's claim under the ADA fails because plaintiff has not demonstrated a medical condition that " ‘significantly limit[s] one or more major life activity,' " i.e., " 'those basic activities that the average person in the general population can *367perform with little or no difficulty.' " Marinelli v. City of Erie, Pa., 216 F.3d 354, 361 (3d Cir.2000) (quoting 29 C.F.R.App. § 1630.2(i) (1999)).
. Plaintiff did not raise her argument that the University breached the confidentiality portion of the Agreement until her brief opposing summary judgment. For that reason, the District Court declined to consider that issue or other allegations of race and gender discrimination first raised at the summary judgment stage. We find no fault with the District Court's decision. Allowing plaintiff to effectively amend her complaint so late in the litigation, and after discovery had taken place, would have unfairly prejudiced the University. Even if that were not the case, however, we find no support in the record for these untimely allegations. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477926/ | OPINION OF THE COURT
RUFE, District Judge.
John Joseph Burke appeals a sentence imposed by the District Court on the grounds that it is both procedurally and substantively unreasonable. After careful review of the arguments presented, we will affirm the judgment of the District Court.
I.
On September 7, 2007, a DirectTV satellite technician noticed questionable photographs of children while on a service call at Burke’s mobile home. The technician contacted law enforcement, and Pennsylvania State Troopers Brian Wolfe and Thomas Caker responded to the scene. After being informed of the reason for the troopers’ visit, Burke invited them into his home. While inside the mobile home, Trooper Caker observed in plain view a stack of images depicting children engaged in sexually explicit conduct. Burke was immediately arrested and transported to *369the Pennsylvania State Police Kittanning Barracks.
During his interview at the barracks, Burke stated that collecting naked images of children was his hobby. He also admitted that the pornographic images found in his home were images that he downloaded and printed from the internet. Law enforcement subsequently obtained a seareh warrant for Burke’s mobile home, and the search resulted in the seizure of over 100 VHS tapes, CDs, and two Dell computers. The VHS tapes and computer hard drives contained child pornography, totaling in excess of 600 images. The children in the images were of various ages, some younger than age twelve, and some of the photographs depicted sadistic and violent acts. A second search of Burke’s mobile home resulted in the seizure of audio and visual recording equipment and additional images, CDs, and VHS tapes.
On March 11, 2008, a federal grand jury returned an indictment charging Burke with one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). After an initial plea of not guilty, on December 17, 2008, Burke changed his counseled plea to guilty to all counts of the indictment, a plea which the District Court found to be knowing and voluntary.
Based on the evidence gathered and the admissions by Burke, the probation officer prepared a Presentence Investigation Report (“PSR”), describing the underlying facts of the charged offenses. Relevant to the instant appeal, in calculating the sentencing guideline range, the probation officer recommended a five-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(5) for engaging in a “pattern of activity involving the sexual abuse or exploitation of a minor.” Support for this enhancement was found in: (1) Burke’s admission that he had sexual contact with a fourteen year-old prostitute, conduct for which he received a diversionary sentence of probation in 1977,2 and (2) the federal investigation of Burke’s role in producing amateur child pornography. The FBI identified two victims appearing in the recovered images as Burke’s nephew and stepson (hereinafter referred to as VI and V2, respectively). Over Burke’s objection, the victims testified at the sentencing hearing to the sexual abuse they experienced as minors, allegedly perpetrated by Burke over 20 years ago. In consideration of his calculated Criminal History category of 13, the enhancement raised the guideline range from 97 to 121 months without the enhancement to 168 to 210 months.
Burke made timely objections to the application of the five-level enhancement in the PSR, stating that VI and V2’s testimony was unreliable and that the alleged conduct involving “two victims and a third fourteen year-old male prostitute over a 30 year period”4 did not warrant the legal *370conclusion that a “pattern” of conduct existed as required by § 2G2.2(b)(5). Burke renewed his objections at sentencing, but the District Court overruled them.
V2 testified that he lived with Burke when Burke was married to V2’s mother, from the mid-1980’s to approximately 1993. He was able to identify VI, his cousin, in one of the images on VHS, estimating that the photo was taken when VI was age ten or twelve years. He also identified Vi’s sister (also V2’s cousin) in an image, approximating her age at fourteen years. V2 stated that he remembered that Burke had audio and visual equipment in the basement of their home, including recording equipment and a microphone. V2 then asserted that Burke made sexual advances towards him during the time they had contact. V2 described the abuse as follows, attesting that it occurred when he was about twelve years old:
He — touched me on top of my clothes in the back of his tractor/trailer, touched my penis. At one time in his townhome in Elgin, Illinois, I was laying on the floor and he — I was laying on my stomach, and he had gotten off the couch and laid down on top of me, and I felt his penis between my butt cheeks.5
V2 attested to another alleged incident in which Burke grabbed the back of his head, forcing him into a prolonged kiss. The resulting effect of this sexual abuse, according to V2, is an inability to trust anyone and a fractured relationship with his mother.
VI also described several sexual encounters initiated by Burke when he was ten or twelve years old. At the time, Burke was dating Vi’s mother (before he met and married V2’s mother). Burke was working at the time as a truck driver, and he would bring VI along for overnight trips. VI testified that during these trips, in the back sleeper cab of the truck, Burke sexually touched him on multiple occasions “in [his] private area”6 and rubbed Vi’s penis, as well as put his mouth on it. VI was often intoxicated during these encounters, as Burke would provide him with beer upon request. VI stated that sometimes Burke would touch him on top of his clothes, and other times he would be naked. VI confirmed that he recognized his naked ten or twelve year-old self in one of the videos. He claimed that the sexual abuse adversely impacted his life; he had alcohol problems when he was younger, and he has trouble trusting anyone.
Based on the testimony of VI and V2 and Burke’s admissions in the PSR regarding the 1977 criminal charges7, the District Court found that the § 2G2.2(b)(5) enhancement applied. The District Court also ruled on all other objections raised by Burke. Burke’s counsel urged the District Court not to impose a lengthy sentence, focusing on Burke’s advanced age (65) and the lack of evidence regarding recent predatory behavior towards minors. After considering testimony and arguments of counsel and reciting its consideration of the 18 U.S.C. § 3553(a) sentencing factors, the District Court imposed a custodial sentence of 168 months, a sentence at the bottom of the advisory guideline range.8
*371In his appeal, Burke challenges the sentence, contending that (1) the mandatory five-level enhancement in U.S.S.G. § 2G2.2(b)(5)9 is an excessive exercise of the Sentencing Commission’s authority, (2) the sentence imposed was unreasonable in light of the slim likelihood of Appellant’s post-release predatory conduct, and (3) reliance upon a media report by the District Court violated his right to due process of law. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 1291.
II.
A.
When reviewing a sentence on appeal, we must first determine whether the sentencing court committed any serious procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range [or] treating the Guidelines as mandatory....” United States v. Lopez-Reyes, 589 F.3d 667, 670 (3d Cir.2009) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We then “review the substantive reasonableness of the sentence under an abuse-of-discretion standard,” while keeping in mind that “[a]s long as a sentence falls within the broad range of possible sentences that can be considered reasonable in light of the 3553(a) factors, we must affirm.” Id. (referencing United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008)). The burden of showing unreasonableness is on the party appealing the sentence. United States v. Olfano, 503 F.3d 240, 244 (3d Cir.2007).
Sentences that fall within the Guidelines range are more likely to be reasonable than those outside the range. United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006). In fact, the Supreme Court has held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). See also United States v. Garcia, 2010 U.S.App. LEXIS 1784, at *7-8 (3d Cir.Pa. Jan. 26, 2010).
A sentencing judge must examine the applicable 3553(a) factors whether or not the sentence imposed departs from the calculated guideline range. United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). The district court may not treat the guidelines as mandatory, Id. at 248, but must make an “individualized assessment based on the facts presented.” Gall, 552 U.S. at 50, 128 S.Ct. 586. After a complete review of the record, a district court must then make a final calculation of an appropriate and reasonable sentence. United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009).
In this case, Burke does not accuse the District Court of ignoring or failing to address either the 3553(a) factors or his objections, as the record reflects a methodical treatment of each, nor does he argue that the District Court treated the guideline range as mandatory. Burke nonetheless attacks the eventual sentence imposed as procedurally and substantively unreasonable.
*372B.
First, Burke challenges § 2G2.2(b)(5) as an excessive exercise of the Sentencing Commission’s authority. Section 2G2.2(b)(5) imposes a mandatory five-level upward adjustment of the offense level upon a finding that “the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) (2009). “Pattern of activity” is defined in the Guidelines as “any combination of two or more separate instances of sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.” U.S.S.G. § 2G2.2 cmt. n. 1 (2009). “Sexual abuse or exploitation” is defined as:
(A) conduct described in 18 U.S.C. § 2241, § 2242, § 2243, § 2251(a)-(c), § 2251(d)(1)(B), § 2251A, § 2260(b), § 2421, § 2422, or § 2423; (B) an offense under state law, that would have been an offense under any such section if the offense had occurred within the special maritime or territorial jurisdiction of the United States; or (C) an attempt or conspiracy to commit any of the offenses under subdivisions (A) or (B). “Sexual abuse or exploitation” does not include possession, accessing with intent to view, receipt, or trafficking in material relating to the sexual abuse or exploitation of a minor. Id.
The District Court found three acts by Burke that qualified as instances of sexual abuse or exploitation: the state criminal charges brought in 197710 involving Burke’s encounter with a juvenile prósti-tute, and the two accounts related by VI and V2 at sentencing, alleging that Burke had abused them as minors more than twenty years ago. On appeal, Burke no longer denies that these instances occurred, but asserts that the five-level enhancement that resulted from the fulfillment of the provision amounts to an excessive exercise of authority by the Sentencing Commission. Our review of a district court’s legal interpretation of a sentencing statute and the Sentencing Guidelines is plenary. United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008).
Burke specifically alleges that: (1) the provision is mandatory, not permissive; (2) it carries no temporal limitations; (3) it carries no corroboration requirements and uncharged and formerly unreported prior instances are considered; and (4) its impact on the length of the sentence is substantial. While making these arguments, Burke recognizes that we squarely addressed many of the same contentions in United States v. Olfano, but he urges us to reach a different result.11 In Olfano, we held that incidents remote in time and variable in kind were properly used to enhance a sentence by five levels under § 2G2.2(b)(5). 503 F.3d at 242-44. Although the defendant in Olfano challenged the application of the guideline and not the provision itself, it is clear that we have previously held that the enhancement does not fail for lack of temporal limitation.
We also reject Burke’s arguments regarding the mandatory nature of the guideline provision and the substantial impact of the enhancement on his sentence. Post United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the *373assertion that a provision is invalid because it is mandatory carries little weight, as a district court has discretion to impose a sentence which varies from the guideline range on any reasonable ground. Id. at 260-63, 125 S.Ct. 738. Burke acknowledges that while the District Court was required to calculate the final guideline range, the guidelines are ultimately advisory. The District Court’s discretion to impose a sentence lower than the final advisory guideline range, even after it has been adjusted upward under § 2G2(b)(5), undermines Burke’s argument that the guideline provision is invalid as an excessive exercise of authority, but he acknowledges this discretion to advance his argument that the District Court improperly failed to deviate downward from the guidelines range in imposing his sentence. See infra, Part II.C.
Burke’s only remaining argument regarding the validity of § 2G2(b)(5) attacks the lack of its requirement that allegations of sexual abuse or exploitation be corroborated or substantiated by a conviction. The guidelines are clear that convictions are not required, expressly stating that past conduct is considered “whether or not abuse resulted in conviction for such conduct.” U.S.S.G. § 2G2.2 cmt. n. 1 (2009). In finding by a preponderance of the evidence that the past instances of sexual abuse and exploitation occurred, the District Court in this matter credited the relevant undisputed portions of the PSR and the testimony of Yl and V2; that is clearly sufficient for “corroboration”. See U.S.S.G. § 6A1.3 cmt. (2004); United States v. Fisher, 502 F.3d 293, 304-06 (3d Cir.2007); United States v. Grier, 475 F.3d 556 (3d Cir.2007) (stating that the proper evidentiary standard for facts related to enhancements is preponderance of the evidence). Accordingly, based on precedent and the plain language of the guidelines, we find no reason to reverse the application of the five-level enhancement under § 2G2(b)(5).
C.
Burke also argues that the District Court imposed an unreasonable sentence based on his advanced age (65), his “hermit-like” lifestyle, the absence of evidence of recent improper relations with minors, and his current lack of contact with related minors. Burke asserts that, given these factors, the District Court was unreasonably apprehensive about the possibility of post-release recidivism, based in part on the District Court’s improper reliance on a recent media account of a released sex-offender gaining access to a public school. See infra, Part II.D. Essentially, this claim combines all of Burke’s arguments: the sentence was procedurally and substantively unreasonable due to the manner in which the District Court reached its sentencing decision and the weight it afforded various 3553(a) factors.
As noted, the District Court methodically addressed each of Burke’s objections to the PSR, entertained testimony, and listened to counsel’s arguments, specifically those arguments referencing Burke’s age, lifestyle, and history.12 The District Court offered a brief summary of the factors it considered in imposing its sentence, including “the need to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to serve as an adequate deterrence, and to protect the public.... ” App. for Appellant 129-30. It recognized its adherence to the 3553(a) factors, focusing on the nature and circumstances of the offense and the history and *374characteristics of Burke. The District Court clearly stated, after being informed at multiple stages of sentencing of Burke’s age and particular circumstances, that it believed Burke could be a significant threat to children when released from incarceration. Ultimately, the District Court imposed a sentence at the bottom of the guideline range.
The defendants in Rita and Olfano received minimum guidelines sentences, as did Burke, and their judgments were upheld despite relatively brief discussions of the sentencing factors on their records. As the Supreme Court found in Rita, “when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.” Id. at 2468. “The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.” Id. We find that the District Court, under the circumstances, adequately explained his reasoning and issued a sentence in light of all the aggravating and mitigating factors on 'the record.
D.
Finally, Burke argues that the District Court denied him due process by referencing during his sentencing a recent media account of a released sex-offender who gained entry to a school. As defense counsel did not contemporaneously object to the District Court’s remarks regarding the media report during Burke’s sentencing hearing, review of this issue is for “plain error affecting substantial rights.” United States v. Adams, 252 F.3d 276, 278 (3d Cir.2001).
In response to defense counsel’s argument that Burke was a recluse and lived in a remote area, and therefore posed no threat to the community upon release, the District Court stated:
The mere fact that the Defendant has lived as a recluse — he’s not in the North Pole. He is in an area where he could easily have access to a mall, where there are children, a grocery store, numerous other places. As we saw just last week, it’s not that hard even to gain entrance to a public school. App. for Appellant 129-30 (emphasis added).
It is this reference to gaining entrance to a public school that Burke assails as a due process violation, because he alleges that the District Court used extrinsic information to aggravate his sentence without providing him with an opportunity to review the evidence and respond. We find Burke’s right to due process was not violated. Due process requires a sentencing court to put a charged defendant on notice of the evidence that it considers, United States v. Ausburn, 502 F.3d 313, 322 (3d Cir.2007), but in the instant case, the District Court’s reference to being able to gain entry to a public school was merely an example of what a person with a history of sexually abusing children could do.
The District Court did not make a factual finding of Burke’s potential proclivity, but properly examined and discussed the sentencing factors enumerated under 18 U.S.C. § 3553(a), in response to Burke’s assertion that, as a recluse, he would not come into contact with minors. As referenced infra Part H.A., a district court must consider, pursuant to the Sentencing Reform Act, factors such as “protecting] the public from further crimes of the defendant”. 18 U.S.C. § 3553(a)(2)(C). Burke’s propensity to commit further crimes against minors is a valid consideration which was addressed by the District Court when it determined the length of his sentence, particularly given the evidence of Burke’s history of sexual abuse and exploitation. Defense counsel was free to argue, as he did, that Burke would not likely endanger the welfare of children in the future; the District Court, however, ultimately determined otherwise based on the evidence presented.
*375We find, based on the record, that the District Court properly and sufficiently considered the 3553(a) factors and imposed a reasonable sentence, a sentence which fell at the bottom of the guideline range.
III.
For the foregoing reasons, we affirm the judgment of sentence rendered by the District Court as procedurally and substantively reasonable.
.Due to the date of the offense, there are limited records available regarding these charges. Available records document that, on June 7, 1977, Burke was found guilty of one count each of Indecent Assault on a Child under 14, Rape on a Child Under 16, and Contributing to the Delinquency of a Child, in Springfield District Court in the Commonwealth of Massachusetts. PSR ¶ 43. The records are also consistent with Burke's statements that he received one year of probation, after which the charges were dismissed. Id. Despite Burke’s argument offered here on appeal, infra Part II.B, there is no requirement that conduct contributing to a finding of a “pattern of activity” under § 2G2.2(b)(5) result in a conviction.
. Burke received one Criminal History point for a Driving While Intoxicated conviction, placing him in Criminal History category I. PSR ¶¶ 41, 42.
. App. for Appellant 53.
. Id. 73-74.
. Id. 90.
. During a psychiatric interview conducted in 2008, Burke admitted that he had sexual contact with a fourteen year-old male prostitute in 1977, and that he was prosecuted for this conduct and served a year of probation. Id. ¶¶ 43, 44.
.In addition to Burke's custodial sentence, the District Court imposed a life term of supervised release, a $300 special assessment, and other terms not at issue in this appeal. App. for Appellant 130-33.
. Throughout his appeal brief, Burke cites § 2G2.2(b)(4) while discussing the substance of what is currently codified as § 2G2.2(b)(5). In doing so, he appears to be using an earlier version of the Sentencing Guidelines. Effective November 1, 2004, § 2G2.2(b)(4) was re-designated as § 2G2.2(b)(5). U.S. Sentencing Guidelines Manual app. C, amend. 664 (November 1, 2004). Section § 2G2.2(b)(4), also applied to Burke’s sentence, allows for a four-level adjustment if the pornographic material at issue depicts sadistic or violent conduct. Burke’s objection to this enhancement at sentencing was overruled by the District Court. App. for Appellant 120. He does not appeal that decision.
. See supra, note 2; PSR ¶ 48.
. Burke, perhaps perceiving the weakness of his arguments in light of Olfano, seeks to preserve his challenge "in the event that [§ 2G2.2(b)(5)] is amended or repealed by the Sentencing Commission, done away with by Act of Congress or struck down by the courts.” Appellant Brief 19-20.
. In addition, information regarding Burke’s age, lifestyle, and history are documented in the PSR. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477928/ | *376OPINION OF THE COURT
RENDELL, Circuit Judge:
Bernard Johnson filed these consolidated appeals in his criminal case, one from the judgment of his conviction and sentence, and one from an order denying two of his subsequent post-trial motions. He raises thirteen claims of error. We conclude that Johnson’s first claim has merit, as we agree that his waiver of counsel prior to sentencing was not made knowingly or voluntarily, due to the District Court’s failure to conduct a colloquy with Johnson in accordance with our precedent. Accordingly, we will vacate the judgment and remand for resentencing.
I.
The evidence presented at trial demonstrated that Johnson, on two separate occasions, sold quantities of crack cocaine to a confidential informant who was working under the direction of local law enforcement. The evidence also demonstrated that Johnson sold crack cocaine directly to an undercover law enforcement officer on four separate occasions. Johnson was arrested in his car after the fourth and final transaction with the undercover officer. He consented to a police search of his car, and he waived his Miranda rights. The search yielded small zip-lock baggies, the cell phone used by Johnson to set up the drug transactions with the confidential informant, and a loaded .32 caliber semiautomatic pistol.
A grand jury returned an eight-count indictment that charged Johnson with the following: six counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); one count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). In August 2003, counsel was appointed and Johnson entered a plea of not guilty.1 Jury selection and trial were calendared to begin in December 2004. By that time, a third superseding indictment had issued which, in addition to the eight counts in the original indictment, included one count of unlawful possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), one count of possessing fifty grams or more of crack cocaine (Count 10), and three special “findings” that the Government intended to use for purposes of sentence-enhancement under the Armed Career Criminal Act.2
Before trial began, the Government filed an information pursuant to 21 U.S.C. § 851(a)(1) to establish that Johnson had prior felony convictions. The factual predicate for the information was Johnson’s August 1998 convictions in the Dauphin County Court of Common Pleas on three counts of unlawful delivery of a controlled substance. For those convictions, Johnson was sentenced to two terms of 1-2 years and one term of 3-6 years of imprisonment.
Johnson’s trial started on December 6, 2004. After three days, a jury sitting in the United States District Court for the Middle District of Pennsylvania found Johnson guilty of all ten counts in the third superseding indictment. Though still represented by counsel, Johnson filed two pro se motions, one for a new trial and the other a motion to dismiss alleging vindictive prosecution. The District Court denied the motions, and a sentencing hear*377ing was scheduled to take place in June 2005. At the hearing, the District Court granted Johnson’s request to proceed pm se and assigned trial counsel to a stand-by capacity. Johnson was sentenced to an aggregate term of 25 years of imprisonment,3 and he appealed. Thereafter, Johnson filed two pro se motions for production of documents. The District Court denied both motions for lack of jurisdiction, and Johnson appealed from that order as well. The two appeals were consolidated for our review.
A briefing schedule was issued and both Johnson, through counsel, and the Government filed briefs. We granted Johnson’s motions to proceed pro se on appeal, and to withdraw the brief filed by his appellate counsel. Johnson then filed a pro se brief, raising thirteen claims of error.
II.4
Relying on our decision in United States v. Salerno, 61 F.3d 214 (3d Cir. 1995), Johnson first claims that the District Court erred when it failed to sufficiently inquire into his waiver of counsel prior to sentencing, rendering the waiver constitutionally deficient. We agree with Johnson and, for the reasons given below, we must remand to the District Court for resentencing. If Johnson wishes to again proceed pro se at sentencing, the District Court must conduct a colloquy in a manner that: (1) covers the issues developed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); and (2) complies with its obligations outlined in United States v. Peppers, 302 F.3d 120 (3d Cir.2002). We reject Johnson’s remaining claims.5
III.
A criminal defendant’s Sixth Amendment right to counsel is to be protected “at every stage of the proceedings.” Von Moltke v. Gillies, 332 U.S. 708, 722, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (Black, J., plurality opinion). That includes sentencing. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The right to counsel also “carries as its corollary the right to proceed pro se.” Peppers, 302 F.3d at 129. Before allowing a criminal defendant to proceed pro se, however, the trial court must assure itself that the waiver of counsel is made knowingly and voluntarily. To that end, the Supreme Court has specified that a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (citation omitted).
In Peppers, we synthesized our case law on this subject and summarized the assurances that a district court entertaining a waiver of counsel should make before allowing the defendant to represent himself:
*3781. The defendant must assert his desire to proceed pro se clearly and unequivocally.
2. The court must inquire thoroughly to satisfy itself that the defendant understands the nature of the charges, the range of possible punishments, potential defenses, technical problems that the defendant may encounter, and any other facts important to a general understanding of the risks involved.
3. The court must assure itself that the defendant is competent to stand trial.
302 F.3d at 132 (citations and quotations omitted). We also listed a series of fourteen questions, many with sub-parts, to provide a “useful framework” for a district court as it endeavors in the three-part inquiry just described. Id. at 136. “Although no scripted recital is required for this inquiry, we do require that all of the subjects covered in the model questions ... be fully explored in the inquiry, to the extent those subjects are relevant.” United States v. Jones, 452 F.3d 223, 234 (3d Cir.2006).
In the instant case, the District Court’s colloquy was brief and did not cover any of the relevant Peppers subjects:
The Court: You want to represent yourself?
Johnson: Yes, Your Honor.
The Court: I don’t think you should do that. I don’t think that’s a very wise move because there are a lot of things that you aren’t expected to lmow that could enter into things here. So I think you’re going to be at a disadvantage.
Although this is only a sentencing proceedings, nevertheless, I think you should allow Mr. Yaninek to continue to represent you, because while you’re expressing dissatisfaction in certain things that he has done or has not done, I do think you need assistance this morning at sentencing.
In spite of that, do you still wish to represent yourself?
Johnson: Yes, Your Honor.
The Court: All right. I’m going to allow you to represent yourself, but I’m going to appoint Mr. Yaninek as standby counsel. What that means is, if you wish to consult with him during this proceeding, you would have an opportunity to do that. Do you understand that?
Johnson: Yes, Your Honor.
The Government does not contest the deficient nature of the District Court’s colloquy. Instead, the Government primarily argues that any error by the District Court is harmless because Johnson received the statutory minimum sentence for his convictions. But a violation of a defendant’s right to counsel at the critical stage of sentencing is a structural error, and is therefore not subject to an analysis of whether the error was harmless or prejudicial. Peppers, 302 F.3d at 127.
Nevertheless, the Government suggests that a remand for resentencing is futile because Johnson will be “subject to precisely the same mandatory terms of imprisonment to which he was sentenced in the first instance.” The Government presumes that, after a proper colloquy by the District Court, Johnson will again elect to proceed pro se, and that his challenge to the quantity of crack cocaine possessed in Count Ten of the third superseding indictment will again be rejected by the District Court (thus triggering the twenty-year mandatory minimum sentence). The occurrence of that series of events is entirely possible, but by no means certain. In fact, it appears that Johnson would have preferred representation at sentencing, albeit from a different attorney, over representing himself: “because the court refused to *379appoint new counsel prior to sentencing, Appellant felt that he had no freedom of choice [as to] whether he should proceed pro se and was bowing to the inevitable.” (Pro se Br. at 2) (quotation omitted).
IV.
For the reasons given in this opinion, we will VACATE Johnson’s sentence and REMAND for resentencing.6
. Johnson’s later acceptance of, and then withdrawal from, a plea agreement from the Government is not relevant to this appeal, but it is noted here as part of the procedural history.
. One of the “findings” averred that Count 10 involved Johnson’s possession with intent to distribute between 150 and 500 grams of crack cocaine.
.Johnson's sentence consisted of seven terms of 20 years of imprisonment for his convictions under 21 U.S.C. § 841(a)(1), and two terms of 10 years of imprisonment for his convictions under 18 U.S.C. § 922(g)(1), all to run concurrently. The sentence also included a mandatory term of 5 years of imprisonment for his conviction under 18 U.S.C. § 924(c). The 20-year term of imprisonment resulted from Johnson's conviction on Count 10 and his prior convictions for felony drug offenses. See 21 U.S.C. § 841(b)(l)(A)(iii).
. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The majority of Johnson’s claims challenge various aspects of his trial, and one asserts ineffective assistance of trial counsel. Johnson also takes issue with the District Court's denial of his two post-sentence motions for production of documents, but the District Court lacked jurisdiction over those motions while Johnson's first appeal was pending. See Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir.1985).
. Johnson's motions for summary remand, sanctions against the Government, and issue preservation are denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477930/ | OPINION
PER CURIAM.
Deborah Raffinee, proceeding pro se, appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing her complaint. We will affirm.
Raffinee applied for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act (“Act”). Her request was granted by an administrative law judge (“ALJ”), who awarded her disability insurance benefits (“SSDI”) and supplemental security income (“SSI”) and set her disability onset date as July 1, 2004. She appealed the ALJ’s determination of her disability onset date to the Appeals Council, who denied her request for review on December 16, 2008. The Social Security Administration (“SSA”) mailed a letter to Raffinee, dated December 16, 2008, in which it informed her of the ALJ’s determination and notified her that she had sixty days to file a civil action requesting review by the District Court. The letter explained that the sixty-day period started “the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.”
Raffinee filed a complaint on March 10, 2009, in which she named the Commissioner, her attorneys, and the ALJ (Andrews), and requested damages. The Commissioner and Andrews filed a motion to dismiss in the District Court, claiming that Raffinee’s complaint was barred by the Act’s statute of limitations, 42 U.S.C. § 405(g), because it was filed more than sixty days after Raffinee’s receipt of the SSA’s letter denying review. Andrews also claimed that Raffinee’s complaint against him was barred by the doctrine of absolute immunity. Raffinee responded, addressing the merits of her complaint. By order entered July 20, 2009, the District Court dismissed the complaint as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District Court determined that the complaint against the Commissioner was a request for judicial review of the Commissioner’s decision, and therefore, it was subject to the sixty-day limitations period provided in § 405(g). The District Court noted that Raffinee did not submit a request to the Commissioner for an extension of time to file her complaint in the District Court. The court calculated that, taking into account the SSA’s five-day mail rule, Raffinee’s complaint was filed well beyond the sixty-day period, and it was thus time-barred.1 Applying traditional equitable tolling principles, see Bowen v. City of New York, 476 U.S. 467, 478-81, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), the District Court also held that tolling was not warranted in the absence of any explanation for the late filing in the record.
Next, the District Court held that the doctrine of absolute immunity barred Raf-finee’s complaint against ALJ Andrews. *381Additionally, the court dismissed sua sponte her complaint for legal malpractice against her attorneys for lack of subject matter jurisdiction based on her failure to show diversity of citizenship pursuant to 28 U.S.C. § 1332. Raffinee filed a motion “not to dismiss her complaint,” asserting that she had filed an extension request before the Commissioner in November 2007, and that her complaint was not to be treated as request for judicial review of the Commissioner’s decision.2 The District Court denied her motion on July 28, 2009. Raffinee filed this timely appeal.
We have jurisdiction under 28 U.S.C. § 1291. We will affirm for substantially the same reasons set forth by the District Court. With respect to the District Court’s dismissal of her complaint against the Commissioner, the extension request that Raffinee submitted in November 2007 had no effect on the sixty-day appeal period because it predated the Appeals Council’s notice of decision. Raffinee makes no equitable tolling claim on appeal, and we find no justification for equitable tolling in the record. As for her other claims, the District Court lacked subject matter jurisdiction to consider her complaint against her attorneys under 28 U.S.C. §§ 1331 (federal question) and 1332 (diversity). In addition, ALJ Andrews enjoys absolute immunity from Raffinee’s suit for damages because her claims are based on actions he took in his official capacity. See Butz v. Economou, 438 U.S. 478, 514, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Upon thorough review of Raffinee’s remaining arguments on appeal, we conclude that they are meritless.
Accordingly, we will affirm the judgment of the District Court. Appellant’s motion to supplement the record with additional evidence is denied.
. The letter notifying Raffinee of the Commissioner's decision and of her sixty-day appeal period was dated December 16, 2008. Raffi-nee does not dispute that she received the letter within the five-day grace period. Assuming that the sixty-day period began to run on December 21, 2008 (the fifth day), Raffinee had until February 19, 2009, to file her complaint. Raffinee’s complaint, filed on March 10, 2009, was nineteen days too late.
. Raffinee attached a copy of her notice of appeal to the Appeals Council dated Novem-her 13, 2007, on top of which she wrote, "We request extention (sic) of time for evidence.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477934/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William C. Mitchell appeals the district court’s order accepting the recommendation of the magistrate judge, granting the defendants summary judgment, and dismissing Mitchell’s action with prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Mitchell v. Cannon, No. 2:07-cv-03259-PMD, 2009 WL 824202 (D.S.C. Apr. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477936/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Terrence Cross petitions for permission under Fed. R.App. P. 5 to appeal the district court’s 2003 order denying his motion to dismiss the federal indictment against him. We find that Cross has not met the requirements to permit an appeal under Rule 5. Accordingly, we deny the petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477883/ | OPINION
PER CURIAM.
In July 2009, Derrick Brown, a federal inmate housed in Pennsylvania, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania seeking to challenge a conviction and sentence imposed in 2008 in the United States District Court for the Western District of Tennessee. Noting that Brown had yet to seek collateral review under 28 U.S.C. § 2255, and that his time in which to do so had not yet expired, the District Court concluded that § 2255 is not “inadequate or ineffective” to test the legality of Brown’s detention, and thus it dismissed the § 2241 petition notwithstanding Brown’s various claims of “actual innocence.” Brown timely filed this appeal.
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.1
Section 2241 is unavailable to Brown to challenge his federal conviction and sentence unless a § 2255 motion would be “inadequate or ineffective.” Because Brown concedes that he had yet to pursue § 2255 relief at the time he filed his § 2241 petition,2 he plainly cannot show that § 2255 is inadequate or ineffective. Relief, if any, on Brown’s claims must first be sought under § 2255 in the sentencing court. Further, as the District Court fully explained, Brown’s assertions of “actual innocence” do not render § 2255 inadequate or ineffective. Brown simply is not in the “unusual position ... of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate[.]” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997).
The District Court’s judgment will be affirmed.
. 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).
. The record indicates that Brown's direct appeal proceedings remained pending at the time he filed the § 2241 petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477885/ | OPINION
PER CURIAM.
I.
Chandan S. Vora appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing her “petition for removal” pursuant to 28 U.S.C. § 1915(e)(2)(B). As she has done before, Vora filed a “petition for removal” in the District Court seeking federal court oversight of and protection from “conspirators,” including Cambria County police officers and other public officials, who have allegedly issued false citations against her. Vora claims that racial and religious bigotry motivated the charges. The District Court concluded that the “petition for removal” sought to attack state court proceedings over which the District Court lacked jurisdiction. Vora appeals the District Court’s dismissal of her petition.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The District Court’s order was entered on November 2, 2009. Vora filed her notice of appeal on December 3, 2009, one day beyond the thirty-day period prescribed by Fed. R.App. P. 4(a)(1)(A). The District Court’s final order, however, does not appear to satisfy the “separate document” rule of Federal Rule of Civil Procedure 58; thus, the time for filing an appeal did not begin to run with the issuance of that order. See Fed.R.Civ.P. 58; see also LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223 (3d Cir.2007). An order is considered a separate document only if it: (1) is self-contained and separate from the opinion; (2) notes the relief granted; and (3) omits (or at least substantially omits) the court’s reasons for disposing of the claims. See LeBoon, 503 F.3d at 224. The District Court’s order failed to satisfy the first and third criteria.
When a judgment is required to be set forth on a separate document, that judgment is not treated as entered until it is set forth on a separate document or until the expiration of 150 days after its entry in the civil docket under Fed.R.Civ.P. 79(a), whichever occurs first. See Fed. R.App. P. 4(a)(7)(A)(ii). Accordingly, entry of judgment and commencement of the thirty-day period for filing a notice of appeal will not occur in this case until April 1, 2010. See LeBoon, 503 F.3d at 223. As such, Vora’s notice of appeal is timely and *297we have jurisdiction over the appeal. Id. at 225.
We exercise plenary review over the District Court’s sua sponte dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). Because we have granted Vora in forma pauperis status pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We will dismiss an appeal under § 1915(e) if it lacks an arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
After reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that her petition was correctly dismissed. Vora sought removal, presumably under the civil rights removal statute, 28 U.S.C. § 1443, alleging that certain state court judgments and citations were the result of a conspiracy by certain public officials to violate her civil rights. The civil rights removal statute applies only to the removal of state court proceedings. Id.; see also 28 U.S.C. § 1447(a). Even if we assume, arguendo, that the civil rights removal statute applies to the matters that Vora seeks to remove, her unsupported allegations do not meet the specific criteria for § 1443 removal. See City of Greenwood v. Peacock, 384 U.S. 808, 827, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Ronan v. Stone, 396 F.2d 502, 503 (1st Cir.1968). Having found no legal merit to this appeal, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477887/ | OPINION OF THE COURT
RUFE, District Judge.
Appellant North Hudson Regional Fire and Rescue (“Regional”) brings this matter as an interlocutory appeal of a preliminary injunction from the District of New Jersey. For the reasons that follow, we will sua sponte summarily remand the case to the District Court for further proceedings.2
/.
As 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 ruling.
The New Jersey Department of Personnel periodically administers a written and physical firefighter exam for all fire departments in the state of New Jersey. Applicants who take the written and physi*299cal exam are ranked on a Civil Service list based on their test scores. Candidates provide their residence codes, which are then used to determine which individuals will be listed as eligible candidates for municipalities that restrict hiring based on residence. Residency is determined as of the date of a candidate’s application.
Regional is a consolidated municipal fire department of 300 employees, providing services to the towns of Guttenberg, North Bergen, Union City, Weehawken, and West New York (the “Member Municipalities”), which are all located in the northern part of Hudson County, New Jersey. Regional restricts hiring to individuals residing in one of the five towns located in its Member Municipalities. Applicants must reside in the Member Municipality at the time of their exams in order to be placed on Regional’s residency-restricted candidacy list. When Regional needs to fill a vacancy, it hires the highest ranked individual(s) from its list. Once hired, Regional’s firefighters are free to live anywhere in the State of New Jersey.
On April 10, 2007, NAACP, the Newark Branch NAACP, the New Jersey State Conference NAACP, Allen Wallace, La-mara Wapples, and Altarik White (collectively referred to hereinafter as “NAACP”) filed a class action complaint against Regional alleging that Regional’s geography-based hiring plan caused discrimination against African Americans who reside in the southern part of Hudson County and neighboring Essex and Union counties, in violation of Title VII of the Civil Rights Action of 1964, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49.3 On December 23, 2008, NAACP filed a motion for preliminary injunction after receiving notice that Regional intended to hire new firefighters.4
On February 17, 2009, the District Court held oral argument on NAACP’s motion for preliminary injunction. After consideration of the arguments and the parties’ expert reports, the District Court granted NAACP’s motion and enjoined Regional from hiring candidates from its Member Municipalities list until it obtained a revised Civil Service list that expanded the residency requirement to include residents of south Hudson, Essex, and Union counties.5
Applying N. A. A. C.P. v. City of Bayonne, N.J., 134 F.3d 113 (3d Cir.1998), the District Court adopted NAACP’s expert’s conclusion, which was undisputed by Defendant’s expert, that the relevant labor market is the Tri-County area or the entire state of New Jersey. While the experts disagreed as to the “qualified population”, the District Court determined that both expert reports support a finding that the residency requirement creates a discriminatory disparate impact. The District Court further determined that His-panies’ employment prospects were not relevant as to whether Regional’s current hiring practices discriminate against African Americans because “[discriminatory hiring practices against one group may not be maintained to benefit another group, *300even if that other group is a protected class.”6
The District Court ultimately concluded that in light of the ratio between the racial composition of the at-issue jobs, which included two African Americans, and the racial composition of the qualified population in the relevant labor market, which included either 121 or 65 African Americans, depending on the definition of the relevant labor market, NAACP had proven a substantial likelihood of success on the merits of its Title VII class action claim. The District Court also concluded that Regional’s residency-restricted hiring plan discriminated against African Americans residing in neighboring counties, which justified its issuance of an injunction preventing Regional from hiring additional firefighters until it obtained a revised Civil Service list that expanded the residency requirements to include residents of southern Hudson, Essex, and Union counties.
Shortly thereafter, Regional filed the instant interlocutory appeal challenging the District Court’s decision. Intervenor-De-fendants Alex DeRojas, et al. (“Interve-nors”) joined in this litigation as six Hispanic firefighter candidates on Regional’s residency-restricted candidate list. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a).
II.
On the Court’s own motion, we believe it is necessary to summarily remand this matter for the District Court’s further consideration of what implications the recently decided United States Supreme Court decision in Ricci v. DeStefano, — U.S. -, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) may have on this case. As the District Court granted the preliminary injunction in February 2009, and Ricci was not decided until June 29, 2009, the District Court was not afforded an opportunity to consider the issue herein appealed, in light of Ricci, when it issued its ruling.
In Ricci, 118 firefighters in New Haven, Connecticut took examinations to qualify for promotion to the rank of lieutenant or captain. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate. Some firefighters argued that the exams should be discarded because the results showed the exams to be discriminatory and threatened a lawsuit if the City of New Haven (“New Haven”) made promotions based on the exams. Other firefighters argued that the exams were neutral and fair and that they, too, would file a discrimination lawsuit if New Haven relied on the statistical racial disparity, ignored the exam results, and denied promotions to the candidates who had performed well. In the end, New Haven agreed with those who protested the exam results and threw out the examinations. As a result, certain Caucasian and Hispanic firefighters filed suit against New Haven, alleging that by discarding the exam results, New Haven discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. New Haven, in defense of its actions, argued that if it had certified the exam results, it would have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The district court granted summary judgment for New Haven and the Second Circuit Court of Appeals affirmed. The U.S. Supreme Court, however, reversed and remanded on the basis that “race-based action like [New Haven’s],. .is impermissible under Title VII unless the employer can demonstrate a strong basis in *301evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”7 The Supreme Court held,
under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.8
As Justice Kennedy states in his Opinion, the Supreme Court’s 5-4 decision in Ricci “clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions.”9 In Ricci, the Supreme Court set the new standard for Title VII disparate treatment and disparate impact cases. Consequently, we conclude that the age and posture of this case justify a summary remand to allow the District Court the opportunity to apply Ricci to its factual and legal analysis.
III.
For the foregoing reasons, we will summarily remand this matter to the District Court for consideration and analysis of Ricci and further proceedings consistent with this opinion pursuant to 3d Cir. L.A.R. 27.4 and I.O.P. 10.6.
. The District Court's underlying Memorandum Opinion ruled on three motions: NAACP's Motion for Class Certification, NAACP's Motion for Preliminary Injunction, and NAACP’s Motion for Bifurcation. The District Court granted NAACP’s motions for class certification and preliminary injunction and denied NAACP’s bifurcation motion. The only issue challenged on appeal is the District Court’s decision to grant preliminary injunction relief.
.In 2000, the population of the Member Municipalities was 69.6 percent Hispanic; 22.9 percent Caucasian; and 3.4 percent African American. As of July 2008, Regional had 323 full-time employees: 64 were Hispanic; 255 were Caucasian; 2 were African American; and 2 were identified as other races. See N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 255 F.R.D. 374, 380 (D.N.J.2009).
. The parties had previously agreed that Regional would not hire withoul providing notice to NAACP while the instant District Court case was pending.
. North Hudson Regional Fire & Rescue, 255 F.R.D. at 393.
. Id. at 391.
. Ricci, 129 S.Ct. at 2664.
. Id. at 2661.
.Id. at 2681. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477891/ | OPINION OF THE COURT
FISHER, Circuit Judge.
U.S. Horticultural Supply, Inc. (“USHS”) appeals from an order of the District Court of the Eastern District of Pennsylvania granting summary judgment as a matter of law to The Scotts Company (“Scotts”). See U.S. Horticultural Supply, Inc. v. Scotts Co., 2009 WL 89692 (E.D.Pa. Jan.13, 2009). USHS filed suit claiming damages from an unlawful conspiracy to restrain trade in violation of Section 1 of the Sherman Act. 15 U.S.C. § 1. 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.
Scotts is a producer of consumer and professional horticulture products that are sold through a network of distributors to both nurseries and greenhouses. Among its various products, Scotts sells controlled release fertilizer (“CRF”). Griffin Greenhouse Supplies (“Griffin”) has been a distributor of Scotts products since at least 1993, and in the mid-1990s Griffin began to expand its operations into the eastern part of the United States. USHS was also a horticultural products distributor and sold its products nationwide.
In 1996, USHS and Scotts signed a Horticultural Products Distributor Agreement (“1996 Distributor Agreement”). The 1996 Distributor Agreement provided that Scotts would deliver its products to USHS’ warehouses and customers within a defined territory. This territory included North Carolina, Virginia, West Virginia, Pennsylvania, New Jersey, Maryland, Delaware and Connecticut, as well as the District of Columbia and several counties in New York. The Agreement also provided for product delivery to Texas and Louisiana if USHS established branches in those states.
The 1996 Distributor Agreement expired by its terms on December 23, 2000. Scotts, however, continued to provide product to USHS in the absence of an agreement until August 3, 2001. It was on that date that USHS and Scotts agreed to renew their distributorship agreement for a term ending September 30, 2002 (“2001 Distributor Agreement”). The new agreement amended the definition of territory and removed Scotts’ obligation to provide product to USHS if USHS expanded into Texas and Louisiana.
During the course of Scotts’ business relationship with USHS, Griffin complained on various occasions that USHS was selling CRF below market prices and was reducing the value of the Scotts brand.1 Scotts acknowledged USHS’ aggressive pricing scheme but was not concerned because Scotts believed that USHS *308could not maintain its low profit margins in the long-term. Griffin proposed that Scotts drop USHS as a distributor in 1999, but Scotts declined to end its business relationship with USHS at that time. Scotts did, however, choose not to renew the 2001 Distributor Agreement upon its expiration on September 30, 2002.
On March 19, 2002, prior to the expiration of the 2001 Distribution Agreement, Scotts and USHS entered into two additional distribution agreements for two other CRF varieties: Ficote and Grocote. The Ficote Agreement expired by its terms on September 20, 2003, and the Grocote Agreement expired by its terms on September 30, 2006.
On November 5, 2004, USHS brought a claim in district court against Scotts and Griffin alleging a conspiracy in restraint of trade, in violation of Section 1 of the Sherman Act.2 Specifically, USHS alleged that it was terminated as a distributor of Scotts’ products because USHS’ price-cutting interfered with an agreement between Scotts and Griffin to maintain above market price levels for the sale of CRF in the mid-Atlantic retail market. (Appellant’s Br. at 2.)
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a grant of summary judgment is plenary and all reasonable inferences are drawn in favor of the non-moving party. Harrison Aire, Inc. v. Aerostat Int’l, Inc., 423 F.3d 374, 380 (3d Cir.2005). In antitrust cases, “normal summary judgment principles apply.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004). A court should find for the moving party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.2001) (quoting Fed.R.Civ.P. 56(c)).
III.
The District Court entered summary judgment for Scotts. On appeal, USHS claims the District Court erred in finding USHS’ theory of conspiracy implausible, that there was sufficient evidence of concerted action to defeat summary judgment, and there was sufficient evidence of anti-competitive effect. We find that the District Court was correct in its determination that USHS failed to provide evidence sufficient to survive summary judgment as to the definitions of the relevant product and geographic markets.3 As such, we affirm the District Court’s grant of summary judgment.
A.
The District Court was correct in applying a rule of reason analysis to this Section 1 Sherman Act claim.4 This analysis requires the plaintiff to demonstrate *309“adverse, anti-competitive effects within the relevant product and geographic markets.” Rossi v. Standard Roofing, Inc., 156 F.3d 452, 464 (3d Cir.1998). A plaintiff can establish this anticompetitive effect through a showing of facially anticompeti-tive restraints or reduced output, increased prices or reduced quality in goods or services. Gordon v. Lewistown Hosp., 423 F.3d 184, 210 (3d Cir.2005). In the alternative, this Court has also held that “because proof that the concerted action actually caused anticompetitive effects is often impossible to sustain, proof of the defendant’s market power will suffice.” Id. Market power, defined as the “ability to raise prices above those that would otherwise prevail in a competitive market, is essentially a surrogate for detrimental effects.” Id. Plaintiffs in Section 1 claims have the burden of establishing both the product and geographic markets which make up the relevant competitive market.5
i.
USHS has the burden of defining the relevant product market. See Pastore v. Bell Tele. Co. of Pa., 24 F.3d 508, 512 (3d Cir.1994). “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). “‘Interchangeability implies that one product is roughly equivalent to another for the use to which it is put; while there might be some degree of preference for the one over the other, either would work effectively.” Allen-Myland, Inc. v. Inti Bus. Machs. Corp., 33 F.3d 194, 206 (3d Cir.1994). When assessing reasonable interchangeability, “[fjactors to be considered include price, use and qualities.” Tunis Bros. Co. v. Ford Motor Co., 952 F.2d 715, 722 (3d Cir.1991). As we explained in Tunis Bros., “products in a relevant market [are] characterized by a cross-elasticity of demand, in other words, the rise in the price of a good within a relevant product market would tend to create a greater demand for other like goods in that market.” Id.6
*310Where the plaintiff fails to define its proposed relevant market with reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all interchangeable substitute products even when all factual inferences are granted in plaintiffs favor, the relevant market is legally insufficient.
Queen City Pizza, Inc., 124 F.3d at 436.
We have also stated that “a well-defined submarket may constitute a relevant product market” for antitrust purposes. Tunis Bros. Co., 952 F.2d at 723. In determining the interchangeability between different products within a sub-market, an antitrust plaintiff must still provide evidence of selling price, uses, and physical characteristics. See Am. Bearing Co., Inc. v. Litton Indus., Inc., 729 F.2d 943, 949 (3d Cir.1984); Worldwide Basketball & Sport Tours, Inc. v. NCAA, 388 F.3d 955, 962 (6th Cir.2004). But in determining “[t]he boundaries of such a submarket,” we can also consider “such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe Co., 370 U.S. at 325, 82 S.Ct. 1502.
USHS argues that there is a distinct market for CRF sold to nurseries and that it presented sufficient “practical indicia” evidence to establish this “submarket.”7 First, USHS offers an internal Scotts document that states that Scotts’ competition for manufacturing CRF was “national.” This established, according to USHS, a distinct group of CRF manufacturers who sold on a national level. Second, USHS’ expert testified that CRF had distinct and separate prices from other substitutes. Next, Scotts had a division devoted primarily to CRF sales to nurseries and that 85% of its CRF sales were in fact to nurseries. USHS also offers testimony from two former Scotts employees that “CRF was perceived by nurseries as having ‘peculiar characteristics and uses,’ because CRF was the only type of fertilizer they could apply to crops without fear of toxic runoffs that potentially would violate federal and state environmental regulations.” (Appellant Br. at 48.)
USHS further relies on a report from its liability expert, John L. Solow, to establish that CRF is a distinct product market. The report states that at the retail level, CRF and plant protection products (“PPP”) are sold to nurseries and water soluble fertilizer and PPP are sold to greenhouses. This demonstrates that these products are complements, rather than substitutes, so a distinct market exists for each.
Even assuming that practical indicia evidence is sufficient by itself to establish the relevant product market under a rule of reason analysis, USHS still has the burden of presenting evidence demonstrating its pricing decisions are constrained. See Allen-Myland, 33 F.3d at 208 n. 16.
USHS’ evidence does not make “reference to the rule of reasonable interchangeability and cross-elasticity of demand” and is, therefore, legally insufficient. Queen *311City Pizza, Inc., 124 F.3d at 436. USHS’ evidence fails to discuss price and use implications within its proposed market, which is fatal to the analysis of interchangeable products under a rule of reason analysis in this case. Further, USHS’ expert report does not include specific information relating to price increases or price stability for substitute products in relation to a rise in the price of Scotts’ CRF. The report states only that CRF had distinct and separate prices from other substitutes, but fails to provide any economic analysis of these substitutes. The failure to present evidence that its pricing decisions are constrained cannot be overcome by the “practical indicia” evidence offered by USHS. As such, USHS failed to satisfy its evidentiary burden to define the relevant product market.
We find the District Court was correct in holding that USHS failed to present sufficient evidence to establish a genuine issue of fact as to the relevant product markets.
ii.
USHS also has the evidentiary burden of establishing the relevant geographic markets for CRF sold to nurseries. Pa. Dental Ass’n v. Med. Serv. Ass’n of Pa., 745 F.2d 248, 260 (3d Cir.1984). The District Court found that USHS failed to present evidence sufficient to survive summary judgment because the evidence offered to establish the relevant geographic market did not speak to buyer behavior. We agree.
“The relevant geographic market is the area in which a potential buyer may rationally look for the goods or services he or she seeks....” Id. (emphasis added). Consequently, the geographic market is not comprised of the region in which the seller attempts to sell its product, but, rather, is comprised of the area where customers would look to buy such a product. Tunis Bros. Co., 952 F.2d at 726. The evidence of the geographic market presented by the party claiming a Section 1 violation must therefore speak to buyer behavior.
USHS argues that the geographic markets for CRF are the United States at the manufacturing level and the mid-Atlantic and New England at the retail level.
First, in defining the manufacturing level market, USHS offers various internal Scotts documents that suggest that Scotts sold CRF on a nationwide basis and viewed the United States as its internal definition of “market.” USHS argues that these documents are evidence of industry perception and should be afforded the appropriate evidentiary weight. The legal standard under Tunis Bros., however, is not what Scotts believes the market is or where Scotts attempts to sell CRF, but rather where CRF distributors, like USHS and Griffin, look to purchase CRF. Id. The documents offered by USHS do not speak to this type of buyer behavior and, therefore, they do not provide legally sufficient support for geographic markets of CRF at the manufacturing level. Additionally, USHS’ expert report does not further discuss the geographic market for CRF at the manufacturing level.
Second, USHS argues that there are both mid-Atlantic and New England retail markets for CRF distributors. In support of this geographic market, USHS relies on industry publications and various internal Scotts documents. USHS also relies on the territorial restrictions contained in the 1996 Distributor Agreement.
Much like the evidence presented in support of the CRF market for manufacturers, the evidence offered by USHS for the retail geographic market does not speak to consumer preferences or behavior. The internal Scotts documents speak to where Scotts looked to sell its product, *312not where nurseries looked to purchase CRF. Next, the territorial restrictions included in the 1996 Distributor Agreement only speak to where Scotts would ship CRF, not where buyers look to purchase. USHS’ expert report also fails to offer analysis of buyer behavior. The report relies exclusively on the 1996 Distributor Agreement. Further, the report does not define the mid-Atlantic or New England markets. The strongest piece of evidence that speaks to consumer behavior is a comment by USHS’ CEO that nurseries and greenhouses have a strong preference for regional distributors. This statement, however, fails to define, even broadly, the regions in which nurseries would seek out CRF.
The District Court was correct in determining that USHS failed to provide sufficient evidence of buyer behavior to survive summary judgment with regard to its definition of the geographic markets for CRF sold to nurseries.
IV.
For the foregoing reasons, we will affirm the order of the District Court.
. The details of the various documents offered by USHS as evidence of the conspiracy between Scotts and Griffin are well known by the parties and will not be discussed in detail.
. USHS and Griffin reached a settlement as to the claims between those parties and they are not at issue in this case.
. This is not to say we disagree with the District Court’s application of Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), in holding that the allegations advanced by USHS were implausible. Nor do we express disagreement with the District Court's finding that USHS presented insufficient evidence of the alleged conspiracy to create a genuine issue of material fact that Scott entered into an illegal vertical conspiracy to maintain prices and remove USHS from the market. Rather, as a showing of anticom-petitive effect within the relevant markets is required to sustain a Section 1 Sherman Act claim, we need not address USHS' other arguments on appeal in order to affirm the District Court’s grant of summary judgment.
.One of the most frequently cited descriptions of the rule of reason analysis comes from Justice Brandéis in Chicago Board of *309Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918):
The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.
. As we conclude that USHS failed to provide sufficient evidence to survive summary judgment as to the relevant product and geographic markets, we need not evaluate the evidence offered as to anticompetitive effect.
. Cross-elasticity is a measure of reasonable interchangeability. As one treatise observes:
The economic tool most commonly referred to in determining what should be included in the market from which one then determines the defendant's market share is cross-elasticity of demand. Cross-elasticity of demand is a measure of the substitutability of products from the point of view of buyers. More technically, it measures the responsiveness of the demand for one product to changes in the price of a different product.
Queen City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 438 n. 6 (3d Cir.1997) (quoting E. Thomas Sullivan and Jeffrey L. Harrison, Understanding Antitrust and its Economic Implications 217 (1994)).
. At oral argument, there was discussion whether the argument relying on practical indicia evidence was waived by not being raised in the District Court. While it is true that USHS never used the "practical indicia” language with the court below, iL did argue that CRF constituted its own submarket and cited to cases that utilized the practical indi-cia language. On appeal they greatly expand on the limited argument they made to the lower court. For these reasons, we do not find that USHS waived this argument. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477893/ | OPINION OF THE COURT
LOURIE, Circuit Judge.
Eddie Martinez appeals from the judgment of the United States District Court for the District of New Jersey sentencing him to 70 months in prison for drug trafficking and firearm offenses. We will affirm.
I. BACKGROUND
On August 6, 2007, Martinez pled guilty to one count of conspiracy to distribute and possess with intent to distribute over 500 grams of cocaine contrary to 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(ii) in violation of 21 U.S.C. § 846 and one count of possession of a firearm after previously being convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Martinez’s Pre-Sen-tencing Report calculated a combined offense level of 27 under the Sentencing Guidelines. Martinez’s plea agreement stipulated to an offense level of 25 based on (1) a downward adjustment of two levels for accepting personal responsibility pursuant to Guideline § 3El.l(a) and (2) a downward adjustment of one level for timely agreeing to enter a plea pursuant to § 3El.l(b). The District Court accepted the stipulated total offence level of 25 at Martinez’s sentencing hearing on November 20, 2007.
At the hearing, the District Court also calculated a criminal history category of three based on five criminal history points. In so doing, the Court rejected Martinez’s argument that a drug-related conviction in which he was sentenced under North Carolina’s Youthful Offender Act qualified as a juvenile rather than as an adult conviction. The Court thus assigned three criminal *314history points for that conviction under Sentencing Guideline § 4A1.2(d)(l).
Finally, the District Court denied Martinez’s motions for two further downward departures, one under Guideline § 5H1.6 for extraordinary family circumstances and another under § 5K2.0 for providing assistance to law enforcement. With regard to his family circumstances, the Court found that Martinez had made no more than a generic argument that his family will suffer hardship as a result of his incarceration. With regard to assisting law enforcement, the Court found that the assistance did not rise to such a level as to take it out of the heartland of the Guidelines for purposes of § 5K2.0 and that granting the motion would require the Court to substitute its judgment for that of the United States Attorney, who had declined in this case to file a motion in support of a departure for providing substantial assistance to authorities under § 5K1.1. The Court recognized its discretion to grant a departure but nevertheless, for both motions, declined to exercise that discretion, resulting in a final Guideline range of 70 to 87 months imprisonment.
The District Court sentenced Martinez to 70 months in prison and four years of supervised release. Martinez appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II. DISCUSSION
When reviewing a sentence, this Court must first “ensure[ ] that the district court committed no significant procedural error” and “then, at stage two, consider its substantive reasonableness.” United States v. Tomko, 562 F.3d 558, 567-68 (3d Cir.2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Where a defendant challenges the calculation of the Guidelines’ range, this Court reviews a district court’s interpretation of the Sentencing Guidelines de novo and reviews any findings of fact used in the calculation for clear error. United States v. Wood, 526 F.3d 82, 85 (3d Cir.2008).
Martinez alleges three errors in the District Court’s sentencing decision. First, Martinez argues that the District Court incorrectly added three points to his criminal history by including a conviction in which he was sentenced as a Committed Youthful Offender under North Carolina law and served only two months. Second, Martinez alleges that the District Court abused its discretion in denying a motion for a downward departure under Sentencing Guideline § 5H1.6 based on his extraordinary family circumstances, and specifically his close relationship with and positive influence on his children. And finally, Martinez alleges that the Court abused its discretion in denying a motion for a downward departure for his cooperation with the government under Guideline § 5K2.0 despite the government’s refusal to submit a motion under § 5K1.1.
The government responds that the District Court correctly added three points to Martinez’s criminal history under Sentencing Guideline § 4A1.2(d)(l) because Martinez’s drug conviction at age 17 was an adult conviction under North Carolina law, for which he received an 18-month sentence. With regard to the District Court’s denial of downward departures under § 5H1.6 and § 5K2.0, the government argues that this Court does not have jurisdiction to review such discretionary denials.
We agree with the government that the District Court did not err in assigning three points to Martinez’s criminal history under § 4A1.2(d)(1) based on his drug-related conviction in North Carolina. The District Court committed no clear error in finding that Martinez’s North Carolina conviction was an adult conviction. See *315Wood, 526 F.3d at 85. Martinez acknowledged that he was over 16 years of age at the time he committed the offense, making him subject to prosecution as an adult under North Carolina law. N.C. Gen.Stat. § 7B-1604. Moreover, sentencing as a Committed Youthful Offender does not negate the effect of an adult conviction under the Guidelines. Finally, the fact that Martinez served only two months is irrelevant. The conviction imposed an 18-month sentence, meeting § 4A1.2(d)(l)’s requirement that the sentence imposed exceed one year and one month.
We also agree with the government that we do not have jurisdiction to review the District Court’s discretionary decision not to grant two further downward departures. See United States v. Vargas, 477 F.3d 94, 103 (3d Cir.2007). We do, however, have jurisdiction when a district court mistakenly believes that it lacked the discretion to grant a departure. Id. In this case, Judge Joel Pisano explicitly stated at the sentencing hearing that he recognized that he had, but would not exercise, the discretion to grant Martinez’s motions for downward departures under § 5H1.6 and § 5K2.0. As such, we lack jurisdiction to review the District Court’s denial of Martinez’s motions.
III. CONCLUSION
For the foregoing reasons, we will affirm the District Comb’s sentencing judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477895/ | OPINION OF THE COURT
PER CURIAM.
This is an appeal from the District Coürt’s dismissal of Kevin Patrick Flood’s *317pro se civil rights complaint. We will affirm in part and reverse in part and remand to the District Court for further proceedings.
Flood is currently an inmate at FCI-Fort Dix. He was recently arrested, tried, and convicted on federal narcotics and firearm charges. See United States v. Flood, 339 Fed.Appx. 210 (3d Cir.2009) (affirming Flood’s conviction and sentence). In April 2006, before his trial, Flood filed a civil suit against certain members of the Pennsylvania State Police who participated in his arrest and interrogation and against Keith Brubaker, a police informant. Flood alleged that the defendants violated his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution. Specifically, he alleged that state police illegally entered his home, destroyed his personal papers, and used improper and excessive interrogation techniques on him at the state police barracks. Flood also alleged that Brubaker planted drugs at Flood’s house and fed him narcotics to weaken his resistance during the police interrogation.
The District Court dismissed Flood’s lawsuit for failure to state a claim because the claims, if successful, would necessarily imply the invalidity of the criminal proceedings against him. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We vacated the District Court’s judgment and remanded for further proceedings because the District Court did not perform a claim-by-claim analysis of Flood’s claims as required by our Heck jurisprudence. Flood v. Schaefer, 240 Fed.Appx. 474, 476 (3d Cir.2007) (per curiam) (unpublished). On remand, Flood attempted to amend his complaint to assert that defendants tampered with, or falsely manufactured, the audio tapes made during the investigation of his criminal case. The District Court denied Flood’s motion, holding that the allegations, if true, would call the validity of his convictions into doubt, thus violating the rule in Heck. Flood filed an interlocutory appeal from that order, which we dismissed for Flood’s failure to pay the requisite fees. Flood v. Schaefer, C.A. No. 08-4659 (3d Cir.2008). Next, the District Court, adopting the Report and Recommendation of the Magistrate Judge, granted defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Flood filed a timely notice of appeal from that order. Flood has also filed a motion for sanctions and requesting appointment of a special master in this Court.
We exercise plenary review over the District Court’s decision to grant defendant’s motion to dismiss. Alaska Elec. Pension Fund v. Pharmacia Corp., 554 F.3d 342, 346 (3d Cir.2009). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendant(s) are liable for the alleged misconduct. See Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). We review the District Court’s decision denying Flood’s motion to amend his complaint for abuse of discretion. See Garvin v. City of Philadelphia, 354 F.3d 215, 219 (3d Cir.2003).
We agree with the District Court’s disposition of Flood’s two claims alleging that Appellees tampered with audio tapes the Government submitted in his criminal trial. If a judgment in favor of a plaintiff in a § 1983 civil suit would necessarily imply the invalidity of the plaintiffs prior criminal conviction, then the suit must be dismissed. Heck, 512 U.S. at 487, 114 S.Ct. 2364. Here, inasmuch as a finding *318that Appellees tampered with evidence which was presented to Flood’s criminal jury would require an invalidation of his criminal conviction, those claims are barred by Fleck. Therefore, the District Court did not abuse its discretion in denying Flood’s motion to amend his complaint to add claims challenging the validity of the audio tapes.
Flood’s remaining claims are partially barred by the doctrine of collateral estoppel, or issue preclusion. Issue preclusion prevents a party who litigated an issue previously from rearguing that particular issue in a subsequent proceeding. See Szehinskyj v. Att’y Gen., 432 F.3d 253, 255 (3d Cir.2005). “The prerequisites for the application of issue preclusion are satisfied when: 1) the issue sought to be precluded [is] the same as that involved in the prior action; 2) that issue [was] actually litigated; 3) it [was] determined by a final and valid judgment; and 4) the determination [was] essential to the prior judgment.” Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir.2007). A finding in a prior criminal proceeding may prevent an individual from litigating the same issue in a subsequent civil proceeding. See Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568, 71 S.Ct. 408, 95 L.Ed. 534 (1951).1
In his criminal trial, Flood’s attorney challenged the voluntariness of the statements Flood made to the police. The District Court, in ruling on the motion, made several factual findings regarding Flood’s interrogation — including that police gave Flood two opportunities to use the restroom and offered him food and drink during questioning. These findings now preclude Flood’s civil claims alleging that he was denied food and access to a bathroom during questioning. See Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit). Even if we did not find the claims precluded, we would agree with the District Court that the food and drink, as well as the two bathroom trips police provided Flood, complied with constitutional requirements.
Flood’s claim that the police used excessive force during his questioning is a different matter, however. Flood argues that his ten-hour detention, when he was handcuffed to a metal folding chair in an unheated room without a blanket, was unreasonable in light of his known “serious back injury.” In the criminal trial, the District Court did not address the temperature of the room or the tightness of the handcuffs in its order resolving Flood’s suppression motion. Appellees argue that the District Court, in ruling on Flood’s suppression motion, was required to consider the totality of circumstances and would, therefore, have noted if the cold weather or the handcuffing influenced the voluntariness of his statement. (Appellees’ Br. at 11, citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). During the suppression hearing, however, Flood litigated only whether police administered proper Miranda warnings as required by the Fifth Amendment. In his suppression motion, Flood did not raise any excessive force claims arising under the Fourth Amendment, and, as a result, the District Court did not perform a totality of circumstances analysis. Therefore, the Fourth Amendment claims related to Flood’s ten-hour pre-trial detention were never litigated and are not barred by issue preclusion in his current civil case.
*319Our conclusion is not at odds with the Heck rule because it is analytically possible for Flood to claim that Appellees subjected him to unconstitutional conditions even if a statement he made during the same time period was voluntary. See, e.g., Gonzalez v. Entress, 133 F.3d 551, 553-54 (7th Cir.1998) (some Fourth Amendment violations are unrelated to a criminal conviction). Indeed, Flood argues that his excessive force claim is unrelated to the voluntariness of his confession. (Appellant’s Br. at 8-9.) While Flood asserts in the “factual allegations” section of his pleadings that police used improper methods to obtain his statement, (Amended Pleadings at 18-19.), he bases his claims in the “causes of action” section of his complaint on the Appellees’ deliberate indifference to his pain and suffering in violation of the Eighth and Fourteenth Amendments.2 (Id. at 25-26.) Moreover, Flood’s claims are not barred by preclusion principles since, as indicated above, Flood could not be expected to raise excessive force claims in his suppression hearing which were unrelated to the voluntariness of his confession.
Appellees also argue that Flood’s claims do not meet the pleading requirements under Fed.R.Civ.P. 12(b)(6). In order to plead a Fourth Amendment civil rights violation, Flood must show that a “ ‘seizure’ occurred and that it was unreasonable.” Curley v. Klem, 499 F.3d 199, 203 (3d Cir.2007) (citation and internal quotation marks omitted). It is unquestionable that Appellees seized Flood when they arrested him; thus, the only issue is whether officers acted unreasonably during his arrest. Id. (quoting Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). While handcuffing an arrestee to a chair is not, by itself, unreasonable, we have held that an excessive force claim may arise from improper handcuffing during arrest. See Kopec v. Tate, 361 F.3d 772, 778 (3d Cir.2004). Arguably, if, as Flood alleges, police were aware that he had a severe back injury and handcuffed him in a manner that caused excessive pain and suffering, he could succeed in proving that the officers violated the Fourth Amendment. We conclude that Flood’s Fourth Amendment claim was sufficiently pleaded.3
We are not suggesting that Flood will ultimately be successful in this action, only that he has pleaded sufficient facts to allow the District Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Capogrosso v. The Sup.Ct. of N.J., 588 F.3d 180 (3d Cir.2009) (per curiam). Therefore, because the District Court erred in dismissing Flood’s claim arising from his handcuffing during questioning, we will remand for further proceedings on that claim only. *320The District Court’s order is affirmed in all other respects. Appellant’s motion for sanctions and requesting appointment of a special master is denied.
. Issue preclusion applies to issues decided in criminal proceedings. See Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980).
. Under the Eighth Amendment, the relevant question is “whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009) (citations and internal quotation marks omitted). We analyze Flood’s claims under the Fourth Amendment because the Eighth Amendment’s prohibition against cruel and unusual punishment does not apply until the State has complied with constitutional guarantees traditionally associated with criminal convictions. See Graham v. Connor, 490 U.S. 386, 398-99, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
. We agree with the District Court, however, that Flood’s chipped teeth, which he attributes to his teeth chattering due to the temperature of the interrogation room, cannot be attributed to excessive police force. Further, Flood's allegation, that he was held in an unheated room with an outside mean temperature of 38 degrees for ten hours while normally clothed, is not a sufficient deprivation of "the minimal civilized measure of life’s necessities” to constitute a violation of his Fourteenth Amendment Due Process rights. See Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir.1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477897/ | OPINION
PER CURIAM.
Pro se petitioner Gbeke Michael Awala was convicted in the United States District Court for the District of Delaware of one count of illegal re-entry into the United States following deportation based on his status as an aggravated felon. He has filed a document entitled “Petition for Writ of Habeas Corpus and Stay of Deportation, Petition for Declaratory Judgment and Permanent Injunction, Petition for Hearing on Immigration Judges Judicial Misconduct, Petition for Writ of Mandamus Compelling Federal Government to Make Payment ($1 Billion) in U.S. Currencies to Petitioner for Damages Under a Prima Facie Tort Claim.” For the reasons that follow, we will deny the petition.
Awala was convicted of illegal re-entry in January 2006. Following his sentencing in May 2006, he filed a notice of appeal in this Court, raising many of the same issues presented in the instant petition. On January 11, 2008, this Court affirmed Awala’s conviction and sentence. See United States v. Awala, 260 Fed.Appx. 469 (3d Cir.2008). Awala then filed a § 2255 motion which the District Court denied by opinion and order entered on January 4, 2010. On January 15, 2010, he filed a motion for reconsideration and an eviden-tiary hearing in the District Court which remains pending.
*321In the instant petition, Awala argues that he is a United States citizen by birth and therefore cannot be removed from this country. He demands the issuance of a United States passport, the return of the documents demonstrating his citizenship, and the payment of $1 billion in compensatory and punitive damages for intentional infliction of emotional distress, wrongful death, genocide, torture, economic loss and mental distress. Additionally, he seeks to challenge the constitutionality of his immigration proceedings, the conduct of his criminal trial by Judge Jordan, and the effectiveness of his attorney during that trial. While some of these claims may be cognizable in the context of a proper appeal from the District Court’s denial of his § 2255 motion, once his motion for reconsideration has been addressed, none of them is the proper subject of a mandamus petition.
The remedy of mandamus is reserved for the most extraordinary of circumstances, DeMasi v. Weiss, 669 F.2d 114, 117 (3d Cir.1982), and may not be used as a substitute for the regular appeals process. See In re Briscoe, 448 F.3d 201, 212 (3d Cir.2006). A petitioner seeking a writ of mandamus must demonstrate that no other adequate means are available to obtain the desired relief and that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). This Court affirmed Awala’s conviction and sentence in 2008. Awala’s motion for reconsideration from the District Court’s denial of his § 2255 motion is currently pending in the District Court. If his motion is denied, Awala may appeal to this Court. None of the relief requested in the present motion is the proper subject of a mandamus petition and therefore, Awala cannot demonstrate that his right to issuance of the writ is “clear and indisputable.”
Based on the foregoing, we will deny the petition for a writ of mandamus. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477899/ | OPINION
PER CURIAM.
Frederick Mullinix petitions for a writ of mandamus directing the District Court to quash the indictment against him. For *322the reasons below, we will deny the petition.
On April 17, 2006, Mullinix was convicted of conspiracy to distribute controlled substances, conspiracy to import controlled substances, conspiracy to introduce mis-branded drugs into interstate commerce, and money laundering. He was sentenced to 150 months in prison. Mullinix filed an appeal which is pending before this Court.
In his mandamus petition, Mullinix challenges the authority of the Special Assistant United States Attorney who represented the government in his criminal proceedings. A writ of mandamus should be issued only in extraordinary circumstances. See Sporck v. Peil, 759 F.2d 312, 314 (3d Cir.1985). Determining whether an extraordinary circumstance exists requires a two-part inquiry. First, it must be established that there is no alternative remedy or other adequate means of relief. Second, a petitioner must demonstrate a clear and indisputable right to the relief sought. Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). A writ is not a substitute for an appeal. In re Kensington Intern. Ltd., 353 F.3d 211, 219 (3d Cir. 2003). Because Mullinix can challenge his criminal judgment on direct appeal, he has other adequate means of relief and is not entitled to a writ of mandamus. Accordingly, we will deny the petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477901/ | OPINION OF THE COURT
PER CURIAM.
Appellants Dom Wadhwa and Sharon Finzie appeal from an August 5, 2009, order of the United States District Court for the Eastern District of Pennsylvania dismissing their complaint without prejudice. For the following reasons, we will affirm the District Court’s order.
I. Background
Because we write solely for the benefit of the parties, we will set forth only those facts necessary for our analysis. Appellants are employed by the Philadelphia Veterans Affairs Medical Center (“PVAMC”). They claim that, on June 26, 2007, certain officials in the Department of Veterans Affairs (“VA”) falsely alleged that Appellants stole PVAMC property and wrongfully ordered Appellants’ arrest. On July 1, 2009, Appellants filed a complaint pursuant to the Federal Tort Claims Act (“FTCA”) against Appellee R. James Nicholson, the Secretary of the VA, claiming that Nicholson is vicariously liable for their wrongful arrest.1 They seek damages and other forms of relief.
Nicholson moved to dismiss the complaint, arguing that Appellants failed to exhaust their administrative remedies. On August 5, 2009, the District Court granted Nicholson’s motion and dismissed the complaint without prejudice. On August 21, *3242009, Appellants filed a motion seeking to hold the proceedings in abeyance pending receipt of a final agency decision in the administrative proceedings. The District Court denied the motion.
Proceeding pro se, Appellants timely filed a notice of appeal.
II. Analysis
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See also Erie County Retirees Ass’n v. County of Erie, Pa., 220 F.3d 193, 202 (3d Cir.2000) (a dismissal without prejudice is final and appealable where the order effectively ends the suit). We exercise plenary review over the District Court’s decision to dismiss the complaint. See AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 530 (3d Cir.2006).
A.
The FTCA waives the sovereign immunity of the United States for certain torts suffered by federal employees acting within the scope of their employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”2 28 U.S.C. § 1346(b)(1). Under the FTCA, an individual must file his or her tort claim with the appropriate federal agency. See 28 U.S.C. § 2675(a); Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir.2009). If the agency denies the claim or fails to resolve it within six months,3 the claimant may proceed by filing a civil action in District Court. Id.
An agency’s final denial of the tort claim is a jurisdictional requirement that cannot be waived. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir.2009). Here, Appellants acknowledge that they initiated an administrative action raising their tort claim against Nicholson by filing the “Standard Form 95” with the VA on June 8, 2009. See App’x at 29-33. Appellants also concede that they filed their FTCA complaint in District Court before receiving a final denial of their claim from the VA and before six months had elapsed. See Appellants’ Reply Brief at 5. Thus, there is no dispute that Appellants had not received the necessary final denial of their administrative claim at the time they filed their complaint, See Lightfoot, 564 F.3d at 627.
Because they lacked a final agency denial, Appellants failed to satisfy a jurisdictional prerequisite to initiating a civil action under the FTCA. Id. The District Court therefore properly dismissed Appellants’ complaint.4 See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
B.
Appellants contend they prematurely filed this civil action due to a concern that, if they were to await the VA’s *325decision on their claim against Nicholson, their federal suit could potentially be barred by “the two-year statute of limitations.” See Appellants’ Reply Brief at 1-2. Thus, they argue, the District Court should not have dismissed their complaint, but instead should have held the proceedings in abeyance pending Appellants’ receipt of a final agency decision.
We disagree. The Supreme Court has expressly instructed that “[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”5 McNeil, 508 U.S. at 113, 113 S.Ct. 1980. Appellants violated the strict requirement that administrative exhaustion must be complete before a party may institute a civil action in District Court under the FTCA. Id. at 112-13, 113 S.Ct. 1980.
In any event, the Appellants’ concern over the statute of limitations is misplaced. The two-year limitations period to which Appellants refer is set forth in 28 U.S.C. § 2401(b), which provides that an FTCA claim is “forever barred” unless it is “presented in writing to the appropriate Federal agency within two years after such claim accrues....” Id.; see also Santos, 559 F.3d at 193.
Thus, the two-year limitations period does not pertain to the time for Appellants to file their complaint in District Court.6 Rather, the relevant period for filing a complaint in District Court is set forth in the latter portion of 28 U.S.C. § 2401(b), which provides that administrative exhaustion is necessary to trigger the limitations period. Specifically, a civil action under the FTCA is barred unless it is “begun within six months after the date of mailing ... of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b); see also 28 U.S.C. § 2675(a).
As we have already discussed, when Appellants filed the FTCA complaint in the District Court, there had not yet been a final agency denial of their claim against Nicholson. Accordingly, the six-month limitations period had not yet begun to run at the time. See 28 U.S.C. § 2401(b). When the District Court dismissed Appellants’ complaint, it did so without prejudice and with the express recognition that Appellants “may re-file their complaint after the claims contained therein have been properly exhausted.” We agree with the District Court’s disposition. The District Court did not abuse its discretion by denying Appellants’ motion to hold the proceedings in abeyance.
C.
Finally, Appellants claim the District Court erred by failing to order oral argument prior to dismissing the complaint. Under the Federal Rules of Civil Procedure, “[b]y rule or order, the court may provide for submitting and determining motions on briefs, without oral hearings.” Fed.R.Civ.P. 78(b). The United States District Court for the Eastern District of Pennsylvania has adopted such a rule. Pursuant to Local Rule 7.1(f), “[t]he *326court may dispose of a motion without oral argument.”
The issues before the District Court on the motion to dismiss were straightforward and clearly presented in the parties’ written submissions. Appellants have failed to cite any authority demonstrating that oral argument was necessary. Under the applicable rules, the District Court acted well within its discretion by declining to hear oral argument in this case.
III. Conclusion
For the foregoing reasons, we will affirm the order of the District Court.
. Appellants filed four District Court actions against Nicholson and other VA officials; those actions were consolidated in October 2007. See Wadhwa v. Nicholson, Civ. Action No. 07-3301 (E.D.Pa.). In April 2009, Nicholson was dismissed as a defendant in the consolidated action. Accordingly, Appellants "filed a new complaint alleging liability on the part of Nicholson under the FTCA arising out of the conduct complained of in action number 07-3301.” See District Court Order, August 5, 2009, at 1 (Docket No. 7). Throughout their submissions in this appeal, Appellants have provided detailed arguments relevant only to the consolidated action. Claims of error in the consolidated action are not properly before us and we therefore will not consider them.
. Under the FTCA, the only party potentially answerable for any alleged injury is the United States. See 28 U.S.C. § 2679(b)(1); CNA v. United States, 535 F.3d 132, 138 n. 2 (3d Cir.2008).
. “The failure of an agency to make final disposition of a claim within six months after it is filed shall ... be deemed a final denial of the claim....” 28 U.S.C. § 2675(a).
. In their reply brief, Appellants argue that “the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims such as ours ... Thus, because our constitutional tort claim is not cognizable under § 1346(b), the FTCA does not constitute our 'exclusive' remedy.” Appellants' Reply Brief at 10. It is unclear from this argument whether Appellants are attempting to present a new theory of liability distinct from their claim under the FTCA. If so, we will not consider such a new claim because Appellants failed to first present it to the District Court. See Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 142 (3d Cir.2001).
. Appellants contend that other Courts have permitted prematurely-filed FTCA complaints to survive dismissal so long as no substantial progress has taken place before the flaw is "cured” by issuance of a final agency decision. However, the United States Supreme Court rejected this approach in McNeil, 508 U.S. at 112, 113 S.Ct. 1980 ("Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process."). McNeil clarified that administrative exhaustion must be complete before instituting suit, and that this procedural rule is a requirement to which all litigants must adhere. Id. at 113, 113 S.Ct. 1980.
. The issue of whether Appellants timely filed their administrative claim with the VA under 28 U.S.C. § 2401(b) is not before us and we will not address it. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477905/ | OPINION
PER CURIAM.
Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny their petition for review.
I.
The petitionei's, wife and husband, are Chinese citizens. They married after arriving in the United States and later had two United States citizen children. Both petitioners concede removability, but they seek asylum, statutory withholding of removal, and relief under the Convention Against Torture (“CAT”) on the grounds that the birth of their second child will subject them to China’s coercive family-planning policies if returned. In particular, they fear that authorities will require one of them to be sterilized or impose a “social compensation fee” that they fear will rise to the level of persecution.
Only the wife testified before the Immigration Judge (“IJ”). She testified that Chinese law requires the sterilization of one member of any couple that has a second child and that she learned of this policy through television broadcasts and fliers. She also testified that she knows of *331at least three people who have been sterilized, but does not know of anyone who has been sterilized after returning to China with a second child born abroad. Petitioners also submitted documentary evidence, including a 2006 Congressional report, numerous news articles, and an affidavit from the wife’s sister. (A.R. 2570-2905.)
The IJ denied petitioners’ claims by written decision and order issued April 4, 2007. The IJ concluded that petitioners had a subjectively genuine fear of future persecution but not an objectively reasonable one. In particular, the IJ concluded that petitioners had shown neither that they would be singled out for sterilization nor that China has a pattern or practice of sterilizing a member of a couple that returns with two foreign-born children.
Petitioners appealed to the BIA. In addition to seeking review of the IJ’s ruling, they submitted some 2100 pages of additional documents and requested in the alternative that the BIA remand for the IJ to address their additional evidence.1 By order issued November 10, 2008, the BIA dismissed petitioners’ appeal. The IJ had not specifically discussed petitioners’ claim regarding the “social compensation fee,” but the BIA rejected it. The BIA also denied their request for a remand. Petitioners seek review.2
II.
Our review of the record confirms that the denial of petitioners’ claim for asylum is supported by substantial evidence. The IJ noted that petitioners had not established that their United States born children would “count” for purposes of China’s family planning policy. She also concluded that petitioners’ evidence showed only “isolated incidents” of forced sterilization and that the Chinese government relies primarily on “social compensation fees” to enforce its family planning laws. (IJ Dec. at 11) (citing Congressional report at A.R. 2585). Thus, she concluded that petitioners’ fear of sterilization was not objectively reasonable. The BIA added to this conclusion by relying on the 2005 Country Report and citing its prior decisions in In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007), In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007), In re 24 I. & N. Dec. 185 (BIA 2007), and In re C-C-, 23 I. & N. Dec. 899 (BIA 2006), in which it previously considered almost all of the evidence that petitioners submitted in this case.3 We cannot say that the record compels a contrary conclusion.
*332Petitioners challenge the BIA’s conclusion that their fear of sterilization is not objectively reasonable primarily on two grounds. First, they claim that the IJ and BIA erred in not finding that their United States born children would “count” for Chinese family planning purposes. They argue that the IJ and BIA “ignored” prior BIA precedent holding that children born in the United States are treated no differently than children born in China. Inexplicably, however, the only authority they cite is In re J-W-S-, which, as explained above, holds just the opposite. See 24 I. & N. Dec. at 190-91. They also argue that one of their documents — a document issued by the United States Department of State entitled “Tips for Travelers to the People’s Republic of China” — compels the conclusion that their children will “count” for family planning purposes despite having been born in the United States. The document states that children born in the United States to Chinese citizens “are not recognized as U.S. citizens under Chinese nationality law.” (A.R. 3065.) The IJ, however, explained that it does not address China’s family planning policy, and we agree with her assessment. (IJ Dec. at 11.)
Second, petitioners challenge the BIA’s conclusion that they failed to establish a reasonable likelihood of forcible sterilization on return. They argue that the IJ did not give adequate weight to certain pieces of their evidence, in particular: (1) an affidavit from the female petitioner’s sister stating that family planning officials told her that a Chinese citizen returning with two children born abroad would have to be sterilized; (2) a 2005 report by the United Nations High Commission for Refugees; (3) New York Times articles regarding the prosecution of an anti-family planning advocate; and (4) various CNN.com and AsiaNews articles.4 The IJ expressly discussed many of these exhibits, however, and we cannot say that they compelled a ruling in petitioners’ favor. (IJ Dec. at 11.) The IJ also addressed the affidavit from the wife’s sister, but declined to give it “significant weight” because its author was a “sympathetic family member” and its contents were not corroborated by other objective evidence. (Id.) Petitioners assert that the IJ acted “improperly” in doing so, but cite no authority. We do not believe that the IJ was required to credit the affidavit. In sum, petitioners have not shown that the BIA erred in concluding that their fear of sterilization is not objectively reasonable.
Petitioners also challenge the BIA’s conclusion that they failed to prove that they face persecution in the form of a “social compensation fee.” Imposition of a “severe economic disadvantage which threatens a petitioner’s life or freedom may constitute persecution.” Li v. Att’y Gen., 400 F.3d 157, 168 (3d Cir.2005). The BIA rejected petitioners’s argument that they have a well-founded fear that any fee would do so here because petitioners “pro*333vided no information regarding their financial status.” (BIA Dec. at 2.)
Petitioners do not claim otherwise, but they cite evidence in the record for the proposition that the fee sometimes exceeds by many factors an individual’s annual income. One of the reports they cite, however, states that “[t]here is wide variation in the amount of social compensation fees” and that any given fee is determined, in part, on the basis of a person’s actual income. (A.R. 869.) We also have explained that whether economic deprivation rises to the level of persecution depends, in part, on the petitioner’s own circumstances. See Li, 400 F.3d at 168 & n. 8. Thus, we cannot say that the record compelled the BIA to find that petitioners face persecution in this regard.
Finally, petitioners argue that the BIA abused its discretion in denying their motion to remand. There is no express statutory authorization for motions to remand, but petitioners’ request was in the nature of a motion to reopen and the BIA treated it as such. See In re Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). The BIA denied petitioners’ motion because they failed to satisfy the standard for reopening (they had not demonstrated that their new evidence was material or previously unavailable or undiscoverable, see 8 C.F.R. § 1003.2(c)(1)), and because their evidence did not establish piima facie eligibility for asylum. Each was a permissible basis to deny the motion. See Zheng v. Att’y Gen., 549 F.3d 260, 265-66 (3d Cir.2008).
As the BIA noted, the vast majority of petitioners’ evidence already had been submitted to the IJ or pre-dated their hearing, and petitioners do not claim that they could not have discovered it previously. Petitioners do not directly challenge that conclusion. Instead, they argue that the BIA’s consideration of this issue constituted improper fact finding on review. They cite no authority for that argument, however, and it is directly contradicted by the applicable regulation, which requires precisely that inquiry. See 8 C.F.R. § 1003.2(c)(1).
Petitioners also argue that remand is required because the BIA did not adequately consider their evidence. See Zheng, 549 F.3d at 271. We disagree. “Consideration of all evidence does not require comment on all evidence.” Thu v. Att’y Gen., 510 F.3d 405, 416 n. 16 (3d Cir.2007); cf. Zheng, 549 F.3d at 271 (BIA’s decision inadequate where if “fail[ed] to offer even a cursory review of the record”). In this case, the BIA expressly addressed much of petitioners’ purportedly new evidence, and it relied on the previous decisions cited above in which it already had considered still more of that evidence. Cf. Zheng, 549 F.3d at 270 n. 7 (reference to earlier decisions insufficient where different evidence was at issue). Its decision was thus not the kind of con-elusory decision we condemned in Zheng. On the contrary, it more closely resembles the decision that we later found sufficient in Liu v. Attorney General, 555 F.3d 145, 149-50 (3d Cir.2009).
The only new evidence cited by petitioners that the BIA did not address expressly and that does not appear to have been at issue in its prior decisions is an April 17, 2007 report by a Department of Homeland investigator stating the result of her investigation into the authenticity of certain documents.5 Petitioners rely on this report’s statement that Chinese parents will be “sanctioned” if they “conducted any birth acts in violation of the family plan*334ning regulations” while outside China. (A.R. 39,1273.) The report, however, does not suggest that the Chinese government has a policy of forcibly sterilizing such parents, or anyone else. To the contrary, it states elsewhere that “no forced IUD insertions and sterilization operations exist.” (Id. at 38, 1272.) Moreover, the report merely summarizes information received from the Chinese government — in this instance, an October 13, 2006 report that itself pre-dates petitioners’ hearing. Thus, the BIA did not abuse its discretion in not mentioning this document or otherwise abuse its discretion in denying petitioners’ motion to remand.
Accordingly, we will deny the petition for review.
. Petitioners submitted two duplicative sets of documents, one in support of the brief for each petitioner. (A.R. 28-1240, 1264-2466.) The only difference between the two sets is that the former contains exhibit tabs that the latter does not. Each set also includes all of the approximately 330 pages of documents that petitioners already had submitted to the IJ.
. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review the decisions of both the IJ and the BIA because the BIA both agreed with the IJ's conclusions and provided its own analysis. See Hashmi v. Att'y Gen., 531 F.3d 256, 259 (3d Cir.2008). We review the Agency's factual findings for substantial evidence and must treat them as " ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.2008) (citations omitted). We review the BIA's denial of petitioners' motion for remand for abuse of discretion. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir.2008). Petitioners have not challenged the BIA's denial of their claims for withholding of removal or relief under CAT on review, so we do not consider them. See Wong, 539 F.3d at 237.
.The BIA previously concluded, on the basis of much of the evidence at issue here, that other applicants failed to establish that United States born children “count” for Chinese family planning purposes or that the Chinese government has a policy of forcibly sterilizing those who return to China with a second child bom abroad. See In re S-Y-G-, 24 I. & N. Dec. at 255; In re J-W-S-, 24 I. & N. Dec. at 190-91.
. Petitioners phrase their argument as one that the IJ "ignored” or "failed to acknowledge” certain pieces of this evidence. With the exception of the United Nations report, however, the IJ expressly discussed this evidence, and we thus understand petitioners to argue that the IJ and BIA gave it inadequate weight. To the extent that petitioners argue that the IJ overlooked this evidence, we agree with the Government that they failed to exhaust that argument by raising it before the BIA. (A.R. 9-27.) See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009). We note, however, that the United Nations report does nothing for petitioners' claims: it merely discusses asylum claims based on population control policies in general and does not even mention China. (A.R. 2595-2606.) We further note that, despite petitioners’ assertion that the IJ and BIA did not adequately consider the record in general, the Agency decisions provide adequate indicia that they did. See Abdulai v. Ashcroft, 239 F.3d 542, 549-50 (3d Cir.2001).
. The copies of this report that petitioners submitted appear to be incomplete. (A.R. 30-39, 1264-73.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477907/ | OPINION OF THE COURT
DIAMOND, District Judge.
This case comes before us for the second time in the course of litigation spanning ten years and at least two continents. In Davis International, LLC v. New Start Group Corp. (Davis I), we upheld the District Court’s dismissal of Appellants’ amended complaint based on direct estop-*336pel. See 488 F.3d 597 (3d Cir.2007). We also held that the District Court had jurisdiction to enjoin Appellants from refiling the same claims in another domestic court, and remanded for consideration of whether to grant such injunctive relief. Id. The District Court granted the anti-suit injunction, and denied Appellants’ motion for supplemental briefing. Appellants now appeal those decisions. We will affirm.
I.
Because we write primarily for the Parties, we will recite only the facts necessary for our analysis.
In November 2004, Appellants Davis International, LLC, Holdex, LLC, Foston Management, Ltd., and Omni Trusthouse, Ltd. filed a complaint in the Delaware Court of Chancery, including claims of federal RICO and common-law conversion. Appellants alleged that they were the victims of an international conspiracy to seize control of Kachkanarsky GOK, Russia’s largest vanadium ore plant. Appellants charge that through a combination of physical threats, bribery, and sham financial transactions, their shares in GOK were transferred in August 2000 to Delaware shell companies owned by the conspirators.
Appellants filed separate lawsuits based on these allegations in Russia, England, Belgium, and New York. The Southern District of New York dismissed the New York action on forum non conveniens grounds, holding that Russia was the appropriate forum. See Base Metal Trading S.A. v. Russian Aluminum, 253 F.Supp.2d 681 (S.D.N.Y.2003), aff'd, 98 Fed.Appx. 47 (2d Cir.2004). Although Base Metal included claims and allegations in addition to those in the instant case, the GOK allegations were identical, and all of the Appellants and four of the Appellees here were parties. See Davis I, 488 F.3d at 602.
After Appellants filed their November 2004 Chancery Court complaint, Appellees New Start Group Corp., Venitom Corp., Pan-American Corp., MDM Bank, Ural-Gorno Metallurgical Co., Evraz Holding, Mikhail Chernoi, Oleg Deripaska, Arnold Kislin, Mikhail Nekrich, and Iskander Makmudov removed the action to the District Court. Appellees moved to dismiss and to permanently to enjoin Appellants from filing these same GOK-related claims in any court in the United States. The District Court stayed merits discovery while it considered Appellees’ motions. Displeased with the stay, on April 26, 2005, Appellants filed an amended federal complaint without their state law claims, and re-filed those state claims in a new Chancery Court action. Davis I, 488 F.3d at 605. The Chancery Court also stayed the case. When Appellants moved to lift the stay in August 2006, the Court denied the motion, stating that Appellants’ new action was “an abuse of the removal statute.” (App. 707.)
On March 29, 2006, the District Court dismissed Appellants’ claims, concluding that under the doctrine of direct estoppel, Appellants were bound by the Base Metal Court’s forum non conveniens determination. Davis Int’l v. New Start Group Corp., 2006 WL 839364, 2006 U.S. Dist. LEXIS 13990 (D.Del. Mar. 29, 2006). The District Court also ruled that it did not have the authority to grant the injunctive relief that Appellees had requested:
The court reaches its decision with some regret because it is convinced, as is the Chancery Court, that the plaintiffs are attempting to subvert the removal statute by splitting their claims. The court is also convinced that, absent an injunction, the plaintiffs will continue to file this action and take up the time and resources of another court.
Id. at *14 n. 16, 2006 U.S. Dist. LEXIS 13990, *47 n. 16.
*337In Davis I, we upheld the District Court’s dismissal, reasoning that because the allegations regarding GOK were identical to those in Base Metal, direct estoppel precluded relitigation of the forum non conveniens ruling. Davis I, 488 F.3d at 605. We also determined that the District Court had jurisdiction to issue the anti-suit injunction, and remanded so that the Court could determine if such an injunction was warranted. Id. at 606.
On remand, the District Court granted the anti-suit injunction pursuant to the All Writs Act. See Davis Int’l v. New Start Group, 2009 WL 1321900 at *3, 2009 U.S. Dist. LEXIS 40895 at *9 (D.Del. May 13, 2009); 28 U.S.C. § 1651(a). The District Court also denied Appellants’ request to file a supplemental brief because briefing on the injunction motion was already complete. Id. at *3 n. 4, 2009 U.S. Dist. LEXIS 40895, *10 n. 4.
II.
The District Court had jurisdiction pursuant to the All Writs Act. 28 U.S.C. § 1651(a). We have jurisdiction under 28 U.S.C. § 1291.
III.
We “review[ ] the terms of an injunction for an abuse of discretion, underlying questions of law receive de novo review, and factual determinations are reviewed for clear error.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir.2001).
A district court’s decision to deny a motion to supplement or amend a pleading is reviewed for an abuse of discretion. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984).
IV.
A.
Appellants devote the bulk of their brief to argument that the Anti-Injunction Act barred the District Court from granting the anti-suit injunction. 28 U.S.C. § 2283. Although acknowledging the Davis I holding that the District Court had jurisdiction to grant an anti-suit injunction, Appellants nonetheless contend that the Court did not have the authority to issue injunctive relief. This distinction without a difference appears to be little more than an attempt to re-argue Davis I.
The All Writs Act provides a district court with the jurisdiction — and thus, the authority — to enjoin state court proceedings where “necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. § 1657. The Act is intended to work in concert with the Anti-Injunction Act, which provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283; see also In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133,143 (3d Cir.1998). Accordingly, a district court may not issue an injunction pursuant to the All Writs Act unless one of these three exceptions applies.
In Davis I, we noted that one of these exceptions could well apply: “[e]ourts considering the question have unanimously held that a plaintiffs fraudulent attempt to subvert the removal statute implicates the expressly authorized exception to the Anti-Injunction Act and may warrant the granting of an anti-suit injunction.” 488 F.3d at 605 (citing Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir.1997); Kan. Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1070-71 (8th Cir.1996); Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir.1975)). In light of the findings by *338the District and Chancery Courts — that Appellants’ re-filed state court action was intended to subvert the removal statute— we held that the District Court could grant an anti-suit injunction and remanded for the District Court to consider whether it should grant the injunction. Davis I, 488 F.3d at 606. In these circumstances, we have already rejected Appellants’ instant assertion that the District Court was without “authority” to issue the anti-suit injunction. We will not revisit that ruling.
Appellants vigorously protest the finding that they had attempted to subvert the removal statute. They argue that they had “every right to delete the non-federal claims by amending their Complaint and filing them in state court in the hope of beginning merits discovery which had been stayed in federal courts for four years.” (Appellants’ Br. at 28-29.) They suggest that they did not improperly seek to re-initiate state court litigation in an action removed to federal court; but, rather, had simply begun a second state court case from which they omitted the RICO claim that had been the basis for removal. (Id. at 27-28.)
This is yet another distinction without a difference. Both the District Court and the Chancery Court found that “the [Appellants’] claims filed in the [re-filed] Chancery Court derive from the same set of facts as the [Appellants’] RICO claims.” Davis Int’l, 2009 WL 1321900 at *3, 2009 U.S. Dist. LEXIS 40895 at *9-10. Appellants candidly admit that they re-filed the Chancery Court action “in the hope of beginning merits discovery which had been stayed in federal courts for four years.” This is exactly the kind of abusive tactic that courts have condemned as an attempt to subvert the removal statute. See Kan. Pub. Employees Ret. Sys., 77 F.3d at 1070-71 (plaintiffs subverted removal statute when they re-filed some of their claims in a second state court suit because they were displeased with federal court’s ruling on statute of limitations issue); Frith, 512 F.2d at 901 (plaintiff subverted removal statute when district court denied a motion to remand tort claims and plaintiff re-filed claims in a second state court suit).
In these circumstances, the District Court correctly concluded that Appellants had attempted to subvert the removal statute and so properly enjoined them under the Anti-Injunction Act’s expressly authorized exception.
B.
Appellants also argue that the District Court erroneously denied their motion to submit a supplemental brief on the injunction issue. Again, we do not agree.
After our remand, the District Court set out the following briefing schedule on the injunction issue: Appellees’ opening brief was due on August 13, 2007, Appellants’ answering brief was due September 13, 2007, and Appellees’ reply brief was due September 28, 2007. On October 27, 2008, Appellants moved to submit a supplemental brief summarizing an English Court’s recent findings on the inadequacy of Russia’s legal system. Because “briefing was complete” and the District Court believed it had all the materials it needed to rule on Appellees’ injunction request, it denied Appellants’ motion. Davis Int’l, 2009 WL 1321900 at *3 n. 4, 2009 U.S. Dist. LEXIS 40895 at *10 n. 4. We will not disturb that decision, which was certainly well within the District Court’s discretion. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 435 (3d Cir.1986); Boileau, 730 F.2d at 938. Cf. Pfeil v. Rogers, 757 F.2d 850, 858 (7 Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d 912 (1986) (“The decision to disregard all material submitted after a reasonable filing deadline is certainly not an abuse of discretion ...”).
*339v.
We will affirm the orders of the District Court enjoining Appellants from pursuing any further litigation on their claims in the United States and denying their motion to file a supplemental brief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477909/ | OPINION
PER CURIAM.
Manjinder Singh petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
*340Because the background of this case is familiar to the parties, we discuss it only briefly here. In November 2000, Singh, a native and citizen of India, entered the United States without valid entry documents. In October 2005, the Department of Homeland Security initiated removal proceedings against him. He conceded re-movability and, in February 2006, 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 India because of persecution he had received on account of his membership in India’s Congress Party.
In July 2006, Singh testified before an Immigration Judge (“IJ”). The IJ concluded that Singh’s testimony lacked credibility, identifying several inconsistencies between the testimony and documents in the record. In light of these inconsistencies, the IJ required corroboration for Singh’s claims. Singh, however, failed to provide any such corroboration.1 As a result, the IJ rejected his claim of past persecution. As for Singh’s claims of future persecution and torture, the IJ stated that even if there was any truth to Singh’s testimony, he could safely return to India because the Congress Party was currently in power. Accordingly, the IJ denied Singh’s application.
In November 2008, the BIA adopted and affirmed the IJ’s decision. The BIA held that the IJ had “considered the ‘totality of the circumstances’ in finding [Singh] not credible.” (Decision of BIA at 1.) The BIA highlighted some of the inconsistencies cited in the IJ’s decision, and noted that the IJ had discussed the various corroborating documentation that Singh had “failed to provide without adequate explanation.” (Id.) The BIA concluded that because the IJ’s “adverse credibility determination was supported by specific, cogent reasons for which [Singh] provided no reasonable explanations, we do not find it to be clearly erroneous.” (Id.) Additionally, the BIA held that the IJ’s “adverse credibility finding also compels denial of his application under the [CAT], since that application is based on identical facts.” (Id.) Singh now seeks review of the BIA’s decision.
We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). Where “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
Singh argues that IJ and BIA did not provide “specific, cogent reasons” in support of the adverse credibility determination. This argument is baseless. The IJ’s decision clearly identified and discussed several important inconsistencies between Singh’s testimony and documents in the record. Moreover, in adopting and affirming the IJ’s decision, the BIA reiterated some of these inconsistencies.
Singh next claims that the IJ failed to afford him an opportunity to explain why he did not submit corroborating documentation. This claim is belied by the record. At the hearing before the IJ, Singh’s own attorney asked whether Singh “eonsider[ed] trying to obtain affidavits from witnesses or a letter from the Congress Party, for example.” (Admin. Rec. at 124.) *341Singh responded by conceding, “No, I didn’t. No, I didn’t get it, I wasn’t thinking of it.” (Id.)
Finally, Singh contends that the BIA failed to consider his CAT claim apart from his claims for asylum and withholding of removal. We disagree. In its decision, the BIA specifically addressed Singh’s CAT claim and reasoned that, because that claim relied on the same evidence as his other claims — evidence that lacked credibility — Singh could not prevail on his CAT claim. We find no error in the BIA’s analysis.
In light of the above, we will deny Singh’s petition for review.
. Although Singh was, at the time, living in New Jersey with his sister (who allegedly lived with him in India during the relevant time period), he did not produce her at the hearing or submit an affidavit from her. Moreover, Singh did not submit an affidavit from his father, whom the IJ described as “a very important person in this case.” (Decision of IJ at 13.) Finally, Singh did not provide any documentation from the Congress Party indicating that he was, in fact, a member. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477915/ | OPINION
PER CURIAM.
Petitioners Bing Ayu Puspita, Wibisono Alianto, Sherin Alianto, and Steffi Alianto seek review of a June 30, 2008, final decision by the Board of Immigration Appeals (“BIA”) dismissing their appeal. For the reasons that follow, we will deny the petition for review.
I. Background
Puspita,1 a native and citizen of Indonesia, is an ethnic Chinese Christian. She and her family arrived in the United States in October 2004 and overstayed their visitors’ visas. In March 2005, Pus-pita applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) for herself and her family, claiming past persecution and a fear of future persecution and torture on account of ethnicity and religion. Specifically, Puspita claims to fear violence by Muslims against ethnic Chinese Christians, particularly since A1 Qaeda’s bombing of a Bali nightclub in October 2002.
The Department of Homeland Security initiated removal proceedings. After a hearing, the Immigration Judge (“IJ”) issued an oral decision on November 2, 2006. The IJ concluded that Puspita failed to show that she suffered past persecution in Indonesia. He concluded that certain aspects of her testimony were implausible and he questioned her motivation for leaving Indonesia, particularly because Puspita *353conceded that the Bali bombing was directed at western tourists and not at ethnic Chinese Christians. The IJ found that the objective evidence did not support Pus-pita’s future persecution claims, and concluded that she did not meet her burden of proof. The IJ therefore denied her application.
Puspita appealed to the BIA. On June 30, 2008, the BIA dismissed the appeal. This petition for review followed.
II. Analysis
In cases where, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, [this Court has] authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review the rejection of Pus-pita’s claim under the deferential substantial evidence standard. Id. at 223. We will not disturb the decision that Puspita failed to meet her burden of proof “unless any reasonable adjudicator would be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.2008).
Puspita’s arguments relate exclusively to her claim of a “pattern or practice of persecution” of ethnic Chinese Christians in Indonesia. See 8 C.F.R. §§ 1208.13(b)(2)(iii)(A), 1208.16(b)(2)(i). To meet her burden of proof, Puspita was required to present objective evidence demonstrating that persecution of ethnic Chinese Christians in Indonesia is “systemic, pervasive, or organized.” See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005).
A.
Our case law has not conclusively addressed whether or not there is a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. See Sukwanputra v. Gonzales, 434 F.3d 627, 637 n. 10 (3d Cir.2006). However, we have recently considered State Department Reports from 1999, 2003, and 2004, and have concluded that the reports do not demonstrate persecution sufficiently “systemic, pervasive, or organized” to constitute a pattern or practice. See Wong v. Att’y Gen., 539 F.3d 225, 233-34 (3d Cir.2008); Lie, 396 F.3d at 537.2 We have also noted that recent State Department reports reflect improving treatment of ethnic Chinese Christians in Indonesia. See Wong, 539 F.3d at 234.
Puspita attempted to establish a pattern or practice of persecution of ethnic Chinese Christians by primarily relying upon four State Department reports3: the 2001 and 2003 Country Reports on Human Rights Practices in Indonesia, see A.R. 262-98; A.R. 315-51, and the 2002 and 2006 International Religious Freedom Reports, see A.R. 110-21; A.R. 300-13. These reports are largely the same as those we addressed in Lie and Wong. In *354particular, as in Lie and Wong, Puspita’s proffered State Department reports contain evidence undermining her pattern or practice claim.4
Based upon our review of Puspita’s record evidence, and guided by our decisions in Lie and Wong, we conclude that substantial evidence supports the BIA’s decision. The record does not compel the conclusion that there is a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Wong, 539 F.3d at 233-34; Lie, 396 F.3d at 537.
B.
Puspita does not make any meaningful attempt to argue that the objective evidence compels a different conclusion. See Yu, 513 F.3d at 348. Instead, she claims that legal error requires that her case be remanded for additional factfinding. Specifically, she claims: (1) that the IJ’s fact-finding was insufficient and the BIA inappropriately engaged in de novo factfinding; and (2) that the BIA inappropriately took administrative notice of disputed pattern or practice evidence and, in violation of her right to due process, did not permit her to present evidence in rebuttal. Puspita’s claims lack merit.
(1)
The BIA concluded that the IJ applied an erroneous legal standard to Puspita’s pattern or practice claim, but held that the error was harmless because the evidence was insufficient to establish her claim under the correct standard.5 Puspi-ta contends that because the IJ did not consider her evidence under the correct standard in the first instance, the BIA did not have a sufficient record upon which to rest its decision.
We disagree. The BIA relied upon the IJ’s findings concerning Puspita’s objective evidence, including the finding her proffered State Department reports undermined her claim. See IJ’s Decision, A.R. 12-13 (quoting the 2006 State Department report, and concluding that “[t]hese may be defined as acts of discrimination, but they are not acts of persecution.”). The BIA concluded that the IJ’s factfinding was not clearly erroneous,6 see BIA Decision, A.R. 5 (citing 8 C.F.R. § 1003.1(d)(3)), and then appropriately applied the correct legal standard to those facts. See 8 C.F.R. § 1003.1(d)(3)(ii) (the BIA may review questions of law de novo). We see no error in this approach.
(2)
Before the BIA, Puspita attempted to distinguish her pattern or practice claim from our decision in Lie by arguing that the Lie decision rested upon older State Department reports. Specifically for the purpose of addressing her concern, the BIA took administrative notice of a more recent 2007 State Department report, and concluded that the 2007 report also failed to establish “systemic, pervasive, or organized” persecution of ethnic Chinese Christians. See Wong, 539 F.3d at 234. Puspita contends that the BIA erred because the facts in the 2007 State Department *355report are in dispute and the BIA cannot take administrative notice of disputed facts. She also contends that Due Process required that she be permitted to present evidence in rebuttal.
We reject Puspita’s arguments. The BIA is permitted to take administrative notice of certain facts within its area of expertise, see 8 C.F.R. § 1003.1(d)(3)(iv); Zubeda v. Ashcroft, 333 F.3d 463, 479 (3d Cir.2003), including State Department Country reports. See 67 Fed. Reg. 54878, 54892-3 (Aug. 27, 2002) (listing DOS country condition reports as an example of what was intended by the term “official documents” in the regulation). Indeed, this Court has encouraged the BIA to view applicants’ claims in light of current country conditions. See Berishaj v. Ashcroft, 378 F.3d 314, 331 (3d Cir.2004).7 Under the regulations, Puspita should have anticipated that the BIA could take notice of the 2007 State Department report.
Moreover, Puspita placed the report at issue. The BIA took notice of the report in response to Puspita’s contention that the information in earlier State Department reports — specifically, the information underlying our decision rejecting the pattern or practice claim in Lie — is now stale. As a result, she may not fault the BIA for considering the more recent 2007 report in the course of rendering its decision.8
III. Conclusion
Puspita bore the burden of demonstrating the existence of a pattern or practice of persecution of ethnic Chinese Christians in Indonesia. The BIA concluded that her objective evidence was insufficient and, as a result, Puspita failed to meet that burden. Because the record does not compel a contrary conclusion, see Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 the BIA’s decision rests upon substantial evidence. We therefore will deny the petition for review. Puspita’s motion to file a supplemental appendix is denied.
. Puspita is proceeding on behalf of herself, her husband, Wibisono Alianto, and their two children, Sherin and Steffi Alianto. For purposes of this opinion, we will refer only to Puspita.
. For example, the 2003 and 2004 State Department Reports "generally emphasize the steps taken by the Indonesian government to promote religious, racial, and ethnic tolerance and to reduce interreligious violence ... [and] indicate that private parties, not government officials, are the predominant cause of harassment and violence.” Wong, 539 F.3d at 233-34.
. Puspita also submitted expert affidavits by Dr. Jeffrey Winters and Jana Mason. We have reviewed the affidavits and cannot conclude that they establish "systemic, pervasive, or organized” persecution against Chinese Christians in Indonesia. See Lie, 396 F.3d at 537. Moreover, we note that the petitioner in Wong similarly relied on an affidavit from an expert on Indonesian country conditions, Wong, F3d F.3d at 229, and as in Wong, Puspita’s expert affidavits do not undermine the factual findings based upon the State Department reports. As we have previously stated, "Country reports ... are the most appropriate and perhaps the best resource of information on political situations in foreign nations.” Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d Cir.2003).
.For example, the 2006 State Department Report on International Religious Freedom notes that "the Government generally respected freedom of religion," that "[t]here was little change in respect for religious freedom during the period covered by the report,” and that "[m]ost of the population enjoyed a high degree of religious freedom." A.R. 110.
. The BIA concluded that the IJ erred by stating that, in order to establish a "pattern or practice” of persecution of ethnic Chinese Christians in Indonesia, Puspita was required to show that she personally suffered past persecution.
. Puspita does not dispute this conclusion.
. Although Puspita cites Berishaj in support of her argument that Due Process demands that she be permitted to rebut the BIA's finding, the portion of Berishaj to which she cites discussed the opportunity to rebut evidence considered for the first time on appeal to this Court, not the BIA's ability to consider evidence of current country conditions. Id. at 330. Indeed, in Berishaj, we specifically called upon the BIA to consider current country information where possible, so that our Court may avoid review of administrative records “so out-of-date as to verge on meaningless.” Id. at 331.
. In addition, the BIA’s consideration of the 2007 State Department report was not determinative of whether Puspita met her burden of proof on her pattern or practice claim. The BIA reached its decision that "the evidence of record is insufficient” before it considered the 2007 report. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477919/ | OPINION
PER CURIAM.
Yiu Mang Chen petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) denying her motion to reopen. For the reasons that follow, we will deny the petition for review.
I. Background
Petitioner Yiu Mang Chen is a citizen of the People’s Republic of China and a native of the Fujian Province. She entered the United States illegally in March 2002 and was served with a notice to appear. Shortly thereafter, she applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming past persecution and a fear of future persecution based upon China’s coercive family planning policies. Her application was denied.
*358On May 14, 2008, more than two years after the BIA had last considered her case, Chen filed a motion to reopen and for a stay of removal. In her motion, Chen claimed a fear that she will be forcibly sterilized in China due to the birth of her second child, a United States citizen. On September 30, 2008, the BIA denied relief.
Through counsel, Chen filed a timely petition for review in the Court of Appeals for the Second Circuit. The petition has been transferred to this Court.
II. Analysis
We have jurisdiction over the petition for review pursuant to INA § 242 [8 U.S.C. § 1252], We review the BIA’s findings of fact for substantial evidence and the denial of 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 we will uphold it unless it was “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994).
To prevail on her motion to reopen, Chen was required to establish prima fa-cie eligibility for relief. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir.2004). Because she filed her motion more than ninety days after the final administrative decision was rendered in her case, see 8 C.F.R. § 1003.2(c)(2), she was required to present evidence that is “material and was not available and could not have been discovered or presented at the previous hearing,” which establishes “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(h).
In support of reopening, Chen submitted a new asylum application and affidavit. A.R. 30-31, 124-34. She also provided: (1) evidence of her second child’s birth in 2005; (2) two 2003 Fujian Province administrative family planning decisions, A.R. 48-49, 51-52; (3) an August 2004 affidavit by demographer John Aird, A.R. 54-114; (4) a “notice from the Fuzhou City Population and Birth Control Office” dated April 2008, A.R. 43; and (5) a June 2007 New York Times article discussing individuals who returned to China and were forcibly sterilized, A.R. 116-22. After closely reviewing the record, we conclude that the BIA did not abuse its discretion in determining that Chen’s documentary evidence did not establish materially changed conditions in China.
Chen claims that the BIA “ignored” her evidence. While Chen is correct that we have remanded cases in which the BIA failed to consider important evidence in support of reopening, see Zheng v. Att’y Gen., 549 F.3d 260, 268-69 (3d Cir.2008) (“[Gjiven the BIA’s failure to discuss most of the evidentiary record in Zhen’s case ... we will vacate the BIA’s [decision] .... ”), this simply is not such a case. Chen has failed to specify any important document that the BIA failed to consider in reaching its conclusion. Indeed, the BIA specifically discussed the majority of Chen’s evidence. Based upon the BIA’s analysis, we are confident that the BIA adequately reviewed the entire record in reaching its decision that Chen failed to meet her burden of proof. See Liu v. Att’y Gen., 555 F.3d 145, 149-50 (3d Cir.2009).
Chen focuses primarily upon the notice from Fuzhou City, Fujian Province, which states that authorities are aware of the birth of Chen’s second child and that Chen is “hereby ordered to undergo the sterilization operation immediately.” A.R. 43. The BIA found that the notice is a copy without authenticating information, see 8 C.F.R. § 287.6, and that Chen failed to explain her failure to provide authentication.
*359Chen does not dispute the BIA’s finding that the Fuzhou City notice lacked indicia of authenticity. Instead, she argues that the BIA abused its discretion by declining to give weight to the Fuzhou City notice under In re S-Y-G- 24 I & N Dec. 247 (BIA 2007). In S-Y-G-, the BIA held that:
an alien in the applicant’s circumstances may successfully reopen his or her asylum case if, on a case-by-case analysis, the genuine, authentic, and objectively reasonable evidence proves that (1) a relevant change in country conditions occurred, (2) the applicant has violated family planning policy as established in that alien’s local province, municipality, or other relevant area, and (3) the violation would be punished in a way that would give rise to a well-founded fear of persecution.
S-Y-G-, 24 I & N Dec. at 251. According to Chen, S-Y-G- does not absolutely require an individual to present “genuine, authentic, and objectively reasonable evidence.” Rather, such evidence is one way that a movant “may” establish her case for reopening — implying that evidence found to be non-genuine, inauthentic, or objectively unreasonable evidence “may” also support reopening.
We reject Chen’s interpretation. We understand the BIA’s holding in S-Y-G to mean that reopening “may” (rather than “must”) be warranted, even where the “genuine, authentic, and objectively reasonable” evidence supports reopening, because the agency nonetheless retains the ultimate discretionary authority to deny reopening. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (BIA retains wide discretion to deny reopening even where a movant has made out a prima fade case for relief).
While Chen’s failure to authenticate the notice does not per se require its exclusion, an absence of evidence concerning authenticity may undermine its evidentiary value. See Chen v. Gonzales, 434 F.3d 212, 219-20 (3d Cir.2005). We conclude that the BIA’s decision to accord little weight to the Fuzhou City notice is reasonable in light of S-Y-G- as well as this Court’s precedent, and it rests upon substantial evidence.
The BIA also adequately addressed Chen’s 2003 Fujian family planning decisions and 2004 Aird affidavit. The BIA reasonably relied upon past decisions, which considered precisely the same documents and concluded that they do not demonstrate a material change in the Fuji-an Province family planning policy. See Matter of S-Y-G-, 24 I & N Dec. 247, 254-55 (BIA 2007) (considering, inter alia, 2003 Fujian province family planning decisions); Matter of J-W-S-, 24 I & N Dec. 185, 189-90 (BIA 2007) (considering, inter alia, 2004 Aird affidavit); see also Liu v. Att’y Gen., 555 F.3d 145, 149-50 (3d Cir.2009) (quoting the BIA’s finding in J-W-S- that “the Chinese government does not have a national policy of requiring forced sterilization of a parent who returns with a second child born outside of China.”); Zheng, 549 F.3d at 267 n. 4 (“We have rejected Aird’s position.”). Chen offers nothing to convince us that the BIA’s assessment was an abuse of discretion.
Finally, the BIA stated that the birth of Chen’s second child in the United States “reflects a change in her personal circumstances in this country, and does not establish a change in circumstances or country conditions ‘arising in the country of nationality’.....” for purposes of § 1003.2(c)(3)(ii). This conclusion comports with our precedent. See Liu, 555 F.3d at 148. Chen argues that the BIA’s conclusion “is nonsensical because the [Bjoard should consider the fact of her child birth with the background materials submitted.” However, even considered in light of Chen’s background materials, the *360birth of Chen’s second child was not sufficient to warrant reopening. The background materials did not establish the necessary material change in country conditions. Id. at 151.
III. Conclusion
For the foregoing reasons, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477921/ | OPINION
PER CURIAM.
Yue Hua Lin petitions for review of a Board of Immigration Appeals (“BIA”) decision denying her motion to reopen her *361immigration proceedings. We will deny the petition for review.
Lin is a native and citizen of China. She was detained when she arrived at the Chicago O’Hare International Airport in December 2005. Shortly thereafter, a notice to appear was issued charging that Lin was subject to removal because, at the time of her application for admission, she did not possess a valid entry document. Lin conceded that she was removable and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming that she was persecuted in China after officials found Falun Gong materials at her book stand.
In 2006, an Immigration Judge (“IJ”) denied Lin’s applications for relief from removal. Noting inconsistencies between Lin’s testimony and other evidence, the IJ did not find Lin credible. The IJ also stated that, even if Lin were credible, she testified that she was not a Falun Gong practitioner, and thus she would face prosecution in China for having banned materials, not persecution. In 2008, the BIA affirmed, without opinion, the results of the IJ’s decision. Lin filed a petition for review, which was dismissed at her request pursuant to Federal Rule of Appellate Procedure 42(b). See C.A. No. 08-2270.
Lin then filed a motion to reopen the administrative proceedings. Lin alleged that she had new information that the Chinese government is looking for her. She stated that her mother had told her that people from the local police station had gone to her home in an effort to find her, and that officials had issued a summons directing that she report to a security office. Lin further stated that, after she did not report, village cadres went to her home every two or three days looking for her and the security office issued a sanction notice. Lin asserted that she will be arrested if she returns to China. Lin also stated that she had started practicing Falun Gong in the United States. In support of her motion to reopen, Lin submitted an affidavit, a letter from her mother, and copies of the summons and sanction notice. In her affidavit, Lin also stated that family planning officials have required her to report for a check-up.
The BIA denied Lin’s motion to reopen. The BIA explained that Lin’s practice of Falun Gong in the United States was not a basis for reopening because Lin had not shown that Chinese authorities were aware of her practice or that they want to persecute her on that basis. The BIA also found that Lin could have raised her argument in the proceedings before the IJ because it appeared that she had started practicing Falun Gong before her hearing had completed.
The BIA further stated that the summonses and the letter from Lin’s mother appeared to relate to Lin’s prior testimony about fleeing prosecution, not a claim of persecution, and the IJ had found her testimony not credible. The BIA noted that Lin had not authenticated the summonses as required by the regulations. The BIA also doubted Lin’s claim given the IJ’s adverse credibility finding and the fact that she had filed her motion shortly after her petition for review was dismissed. Finally, the BIA found that reopening was not warranted based on notices requiring Lin to report to the family planning office for a gynecological examination because the notices did not establish prima facie eligibility for relief. This petition for review followed.
We review the denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). Under this standard, we will not disturb the BIA’s decision unless it is “arbitrary, irrational, or contrary to law.” Id.
*362Lin argues that the BIA never reached the issue of whether she stated a prima facie case for relief based on her claim that officials still sought her for her perceived or actual Falun Gong practice. She states that the documents she submitted establish her prima facie eligibility for relief. We disagree. First, the BIA did conclude that Lin failed to establish a prima facie case for relief. The BIA stated that the documents Lin had submitted appeared to relate to her prior testimony about fleeing prosecution, not a claim of persecution, and that the IJ found her testimony not credible. Although the BIA did not expressly state that Lin failed to establish a prima facie case for relief, that conclusion follows from the BIA’s statement that her evidence does not support a claim of persecution.
The BIA also correctly stated that Liris evidence appears to relate to her testimony at her hearing before the IJ, where Lin asserted that a schoolmate asked her to keep Falun Gong materials at her book stand and officials detained her after finding them. The summons states that she was suspected of being involved in “harboring and protecting Fa Lun Gong members” and the sanction notice provides that Lin must pay a fine because she “harbored and protected the member of Falun Gong.” A.R. at 21, 23. The BIA did not err in denying reopening where Lin’s motion was based on the same claim as her asylum application, which the IJ found not credible.
Lin also has not shown that the BIA abused its discretion in denying reopening based on her assertion that she has become a Falun Gong practitioner. The BIA accurately noted that there is no evidence that Chinese authorities are aware of her practice in the United States or that they want to persecute her on this basis.1
Finally, to the extent Lin contends that the BIA erred in denying reopening based on evidence that she was required to report for gynecological examinations, Lin has not shown that the BIA abused its discretion in concluding that she did not establish prima facie eligibility for relief. See Matter of M-F-W & L-G- 24 I. & N. Dec. 633, 637 (BIA 2008) (setting forth required showing for refugee status based on resistance to a coercive population control program).
Accordingly, we will deny the petition for review.
. Having found no abuse of discretion for this reason, we need not address Lin's argument that the BIA erred in stating that she could have raised this argument at her hearing before the IJ. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477925/ | OPINION
WEIS, Circuit Judge.
Plaintiff is a professor on the faculty of The Pennsylvania State University. She *366filed suit in September 2006, alleging that the University discriminated against her on the basis of race and gender, failed to accommodate her disability, and condoned a hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981 et seq.; 42 U.S.C. § 12101 et seq.; and Title IX, 20 U.S.C. § 1681 et seq. She also contended that the University had breached a prior Settlement Agreement. The District Court entered summary judgment for defendant on all claims. After a careful review, we will affirm.
Plaintiff resigned as Dean of the University’s Office of International Programs in 2002 and resumed her position as a tenured full professor in the College of Education, agreeing to “perform the normal and customary functions, duties and responsibilities of’ that position as assigned by her department head. However, differences arose between plaintiff and her colleagues soon thereafter.
The plaintiff’s grievances were numerous and well-documented, as illustrated by the voluminous record. They included claims that her salary increases and opportunities for promotion lagged in comparison to those of her colleagues and that the University failed to adequately and promptly accommodate her requests for an “ergonomically correct” office and first-or business-class air travel. She also alleged that she was not permitted to teach the number or type of courses she requested and was treated disrespectfully by students, colleagues, and administrators alike.1
The District Court performed an extensive analysis of the plaintiffs allegations and found no genuine issue of material fact. We exercise plenary review over that determination. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.2008).
The racial and gender discrimination claims were properly analyzed under the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). We agree with the District Court that plaintiff pointed to no “evidence from which a factfinder could reasonably conclude that the [University’s] proffered reasons” for limiting her salary increases — her already substantial salary and comparatively weaker performance— “were fabricated.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994).
As for the allegations regarding classes and course load, the University produced evidence that plaintiff has been able to teach most of the courses she requested and obtained a lighter schedule without securing external funding as required. Again, plaintiff failed to demonstrate that these responses were pretextual.
We also agree with the District Court that the handling of the plaintiffs travel and office furnishings requests was not the result of discriminatory animus. The record shows that the University departed from policy and actually increased the usual travel allowance for the plaintiffs benefit. Likewise, the record reveals that the University made many efforts to accommodate the plaintiffs request for an “ergonomically correct” office, but plaintiff often failed to cooperate.2
*367The District Court was not persuaded that several discrete incidents cited by plaintiff amounted to evidence of a hostile work environment. Nor are we. See Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999) (listing elements of hostile work environment claim, including, inter alia, “pervasive and regular” discrimination (citation omitted)). Finally, we agree with the District Court that plaintiff failed to prove that the University breached the Settlement Agreement.3
In closing, we note our agreement with the district judge that, on this record, it appears that the University made every effort to accommodate plaintiff. We commend the District Court for its painstaking-survey of this case. Finding no reversible error, we will affirm.
. Before instituting this suit, plaintiff filed employment discrimination charges with the EEOC in January 2005. In April and October of that same year, she filed complaints with the Pennsylvania Human Relations Commission.
. Relatedly, we find that the plaintiff's claim under the ADA fails because plaintiff has not demonstrated a medical condition that " ‘significantly limit[s] one or more major life activity,' " i.e., " 'those basic activities that the average person in the general population can *367perform with little or no difficulty.' " Marinelli v. City of Erie, Pa., 216 F.3d 354, 361 (3d Cir.2000) (quoting 29 C.F.R.App. § 1630.2(i) (1999)).
. Plaintiff did not raise her argument that the University breached the confidentiality portion of the Agreement until her brief opposing summary judgment. For that reason, the District Court declined to consider that issue or other allegations of race and gender discrimination first raised at the summary judgment stage. We find no fault with the District Court's decision. Allowing plaintiff to effectively amend her complaint so late in the litigation, and after discovery had taken place, would have unfairly prejudiced the University. Even if that were not the case, however, we find no support in the record for these untimely allegations. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477929/ | *376OPINION OF THE COURT
RENDELL, Circuit Judge:
Bernard Johnson filed these consolidated appeals in his criminal case, one from the judgment of his conviction and sentence, and one from an order denying two of his subsequent post-trial motions. He raises thirteen claims of error. We conclude that Johnson’s first claim has merit, as we agree that his waiver of counsel prior to sentencing was not made knowingly or voluntarily, due to the District Court’s failure to conduct a colloquy with Johnson in accordance with our precedent. Accordingly, we will vacate the judgment and remand for resentencing.
I.
The evidence presented at trial demonstrated that Johnson, on two separate occasions, sold quantities of crack cocaine to a confidential informant who was working under the direction of local law enforcement. The evidence also demonstrated that Johnson sold crack cocaine directly to an undercover law enforcement officer on four separate occasions. Johnson was arrested in his car after the fourth and final transaction with the undercover officer. He consented to a police search of his car, and he waived his Miranda rights. The search yielded small zip-lock baggies, the cell phone used by Johnson to set up the drug transactions with the confidential informant, and a loaded .32 caliber semiautomatic pistol.
A grand jury returned an eight-count indictment that charged Johnson with the following: six counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); one count of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and one count of possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). In August 2003, counsel was appointed and Johnson entered a plea of not guilty.1 Jury selection and trial were calendared to begin in December 2004. By that time, a third superseding indictment had issued which, in addition to the eight counts in the original indictment, included one count of unlawful possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), one count of possessing fifty grams or more of crack cocaine (Count 10), and three special “findings” that the Government intended to use for purposes of sentence-enhancement under the Armed Career Criminal Act.2
Before trial began, the Government filed an information pursuant to 21 U.S.C. § 851(a)(1) to establish that Johnson had prior felony convictions. The factual predicate for the information was Johnson’s August 1998 convictions in the Dauphin County Court of Common Pleas on three counts of unlawful delivery of a controlled substance. For those convictions, Johnson was sentenced to two terms of 1-2 years and one term of 3-6 years of imprisonment.
Johnson’s trial started on December 6, 2004. After three days, a jury sitting in the United States District Court for the Middle District of Pennsylvania found Johnson guilty of all ten counts in the third superseding indictment. Though still represented by counsel, Johnson filed two pro se motions, one for a new trial and the other a motion to dismiss alleging vindictive prosecution. The District Court denied the motions, and a sentencing hear*377ing was scheduled to take place in June 2005. At the hearing, the District Court granted Johnson’s request to proceed pm se and assigned trial counsel to a stand-by capacity. Johnson was sentenced to an aggregate term of 25 years of imprisonment,3 and he appealed. Thereafter, Johnson filed two pro se motions for production of documents. The District Court denied both motions for lack of jurisdiction, and Johnson appealed from that order as well. The two appeals were consolidated for our review.
A briefing schedule was issued and both Johnson, through counsel, and the Government filed briefs. We granted Johnson’s motions to proceed pro se on appeal, and to withdraw the brief filed by his appellate counsel. Johnson then filed a pro se brief, raising thirteen claims of error.
II.4
Relying on our decision in United States v. Salerno, 61 F.3d 214 (3d Cir. 1995), Johnson first claims that the District Court erred when it failed to sufficiently inquire into his waiver of counsel prior to sentencing, rendering the waiver constitutionally deficient. We agree with Johnson and, for the reasons given below, we must remand to the District Court for resentencing. If Johnson wishes to again proceed pro se at sentencing, the District Court must conduct a colloquy in a manner that: (1) covers the issues developed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); and (2) complies with its obligations outlined in United States v. Peppers, 302 F.3d 120 (3d Cir.2002). We reject Johnson’s remaining claims.5
III.
A criminal defendant’s Sixth Amendment right to counsel is to be protected “at every stage of the proceedings.” Von Moltke v. Gillies, 332 U.S. 708, 722, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (Black, J., plurality opinion). That includes sentencing. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The right to counsel also “carries as its corollary the right to proceed pro se.” Peppers, 302 F.3d at 129. Before allowing a criminal defendant to proceed pro se, however, the trial court must assure itself that the waiver of counsel is made knowingly and voluntarily. To that end, the Supreme Court has specified that a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (citation omitted).
In Peppers, we synthesized our case law on this subject and summarized the assurances that a district court entertaining a waiver of counsel should make before allowing the defendant to represent himself:
*3781. The defendant must assert his desire to proceed pro se clearly and unequivocally.
2. The court must inquire thoroughly to satisfy itself that the defendant understands the nature of the charges, the range of possible punishments, potential defenses, technical problems that the defendant may encounter, and any other facts important to a general understanding of the risks involved.
3. The court must assure itself that the defendant is competent to stand trial.
302 F.3d at 132 (citations and quotations omitted). We also listed a series of fourteen questions, many with sub-parts, to provide a “useful framework” for a district court as it endeavors in the three-part inquiry just described. Id. at 136. “Although no scripted recital is required for this inquiry, we do require that all of the subjects covered in the model questions ... be fully explored in the inquiry, to the extent those subjects are relevant.” United States v. Jones, 452 F.3d 223, 234 (3d Cir.2006).
In the instant case, the District Court’s colloquy was brief and did not cover any of the relevant Peppers subjects:
The Court: You want to represent yourself?
Johnson: Yes, Your Honor.
The Court: I don’t think you should do that. I don’t think that’s a very wise move because there are a lot of things that you aren’t expected to lmow that could enter into things here. So I think you’re going to be at a disadvantage.
Although this is only a sentencing proceedings, nevertheless, I think you should allow Mr. Yaninek to continue to represent you, because while you’re expressing dissatisfaction in certain things that he has done or has not done, I do think you need assistance this morning at sentencing.
In spite of that, do you still wish to represent yourself?
Johnson: Yes, Your Honor.
The Court: All right. I’m going to allow you to represent yourself, but I’m going to appoint Mr. Yaninek as standby counsel. What that means is, if you wish to consult with him during this proceeding, you would have an opportunity to do that. Do you understand that?
Johnson: Yes, Your Honor.
The Government does not contest the deficient nature of the District Court’s colloquy. Instead, the Government primarily argues that any error by the District Court is harmless because Johnson received the statutory minimum sentence for his convictions. But a violation of a defendant’s right to counsel at the critical stage of sentencing is a structural error, and is therefore not subject to an analysis of whether the error was harmless or prejudicial. Peppers, 302 F.3d at 127.
Nevertheless, the Government suggests that a remand for resentencing is futile because Johnson will be “subject to precisely the same mandatory terms of imprisonment to which he was sentenced in the first instance.” The Government presumes that, after a proper colloquy by the District Court, Johnson will again elect to proceed pro se, and that his challenge to the quantity of crack cocaine possessed in Count Ten of the third superseding indictment will again be rejected by the District Court (thus triggering the twenty-year mandatory minimum sentence). The occurrence of that series of events is entirely possible, but by no means certain. In fact, it appears that Johnson would have preferred representation at sentencing, albeit from a different attorney, over representing himself: “because the court refused to *379appoint new counsel prior to sentencing, Appellant felt that he had no freedom of choice [as to] whether he should proceed pro se and was bowing to the inevitable.” (Pro se Br. at 2) (quotation omitted).
IV.
For the reasons given in this opinion, we will VACATE Johnson’s sentence and REMAND for resentencing.6
. Johnson’s later acceptance of, and then withdrawal from, a plea agreement from the Government is not relevant to this appeal, but it is noted here as part of the procedural history.
. One of the “findings” averred that Count 10 involved Johnson’s possession with intent to distribute between 150 and 500 grams of crack cocaine.
.Johnson's sentence consisted of seven terms of 20 years of imprisonment for his convictions under 21 U.S.C. § 841(a)(1), and two terms of 10 years of imprisonment for his convictions under 18 U.S.C. § 922(g)(1), all to run concurrently. The sentence also included a mandatory term of 5 years of imprisonment for his conviction under 18 U.S.C. § 924(c). The 20-year term of imprisonment resulted from Johnson's conviction on Count 10 and his prior convictions for felony drug offenses. See 21 U.S.C. § 841(b)(l)(A)(iii).
. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. The majority of Johnson’s claims challenge various aspects of his trial, and one asserts ineffective assistance of trial counsel. Johnson also takes issue with the District Court's denial of his two post-sentence motions for production of documents, but the District Court lacked jurisdiction over those motions while Johnson's first appeal was pending. See Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir.1985).
. Johnson's motions for summary remand, sanctions against the Government, and issue preservation are denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477931/ | OPINION
PER CURIAM.
Deborah Raffinee, proceeding pro se, appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing her complaint. We will affirm.
Raffinee applied for disability insurance and supplemental security income benefits under Titles II and XVI of the Social Security Act (“Act”). Her request was granted by an administrative law judge (“ALJ”), who awarded her disability insurance benefits (“SSDI”) and supplemental security income (“SSI”) and set her disability onset date as July 1, 2004. She appealed the ALJ’s determination of her disability onset date to the Appeals Council, who denied her request for review on December 16, 2008. The Social Security Administration (“SSA”) mailed a letter to Raffinee, dated December 16, 2008, in which it informed her of the ALJ’s determination and notified her that she had sixty days to file a civil action requesting review by the District Court. The letter explained that the sixty-day period started “the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.”
Raffinee filed a complaint on March 10, 2009, in which she named the Commissioner, her attorneys, and the ALJ (Andrews), and requested damages. The Commissioner and Andrews filed a motion to dismiss in the District Court, claiming that Raffinee’s complaint was barred by the Act’s statute of limitations, 42 U.S.C. § 405(g), because it was filed more than sixty days after Raffinee’s receipt of the SSA’s letter denying review. Andrews also claimed that Raffinee’s complaint against him was barred by the doctrine of absolute immunity. Raffinee responded, addressing the merits of her complaint. By order entered July 20, 2009, the District Court dismissed the complaint as untimely pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District Court determined that the complaint against the Commissioner was a request for judicial review of the Commissioner’s decision, and therefore, it was subject to the sixty-day limitations period provided in § 405(g). The District Court noted that Raffinee did not submit a request to the Commissioner for an extension of time to file her complaint in the District Court. The court calculated that, taking into account the SSA’s five-day mail rule, Raffinee’s complaint was filed well beyond the sixty-day period, and it was thus time-barred.1 Applying traditional equitable tolling principles, see Bowen v. City of New York, 476 U.S. 467, 478-81, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986), the District Court also held that tolling was not warranted in the absence of any explanation for the late filing in the record.
Next, the District Court held that the doctrine of absolute immunity barred Raf-finee’s complaint against ALJ Andrews. *381Additionally, the court dismissed sua sponte her complaint for legal malpractice against her attorneys for lack of subject matter jurisdiction based on her failure to show diversity of citizenship pursuant to 28 U.S.C. § 1332. Raffinee filed a motion “not to dismiss her complaint,” asserting that she had filed an extension request before the Commissioner in November 2007, and that her complaint was not to be treated as request for judicial review of the Commissioner’s decision.2 The District Court denied her motion on July 28, 2009. Raffinee filed this timely appeal.
We have jurisdiction under 28 U.S.C. § 1291. We will affirm for substantially the same reasons set forth by the District Court. With respect to the District Court’s dismissal of her complaint against the Commissioner, the extension request that Raffinee submitted in November 2007 had no effect on the sixty-day appeal period because it predated the Appeals Council’s notice of decision. Raffinee makes no equitable tolling claim on appeal, and we find no justification for equitable tolling in the record. As for her other claims, the District Court lacked subject matter jurisdiction to consider her complaint against her attorneys under 28 U.S.C. §§ 1331 (federal question) and 1332 (diversity). In addition, ALJ Andrews enjoys absolute immunity from Raffinee’s suit for damages because her claims are based on actions he took in his official capacity. See Butz v. Economou, 438 U.S. 478, 514, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Upon thorough review of Raffinee’s remaining arguments on appeal, we conclude that they are meritless.
Accordingly, we will affirm the judgment of the District Court. Appellant’s motion to supplement the record with additional evidence is denied.
. The letter notifying Raffinee of the Commissioner's decision and of her sixty-day appeal period was dated December 16, 2008. Raffi-nee does not dispute that she received the letter within the five-day grace period. Assuming that the sixty-day period began to run on December 21, 2008 (the fifth day), Raffinee had until February 19, 2009, to file her complaint. Raffinee’s complaint, filed on March 10, 2009, was nineteen days too late.
. Raffinee attached a copy of her notice of appeal to the Appeals Council dated Novem-her 13, 2007, on top of which she wrote, "We request extention (sic) of time for evidence.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477933/ | OPINION OF THE COURT
PER CURIAM
Corey Wilson appeals from the District Court’s judgment of conviction and sentence. For the reasons that follow, we will affirm.
I.
In February 2006, a federal grand jury returned a one-count indictment charging Wilson with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On October 10, 2007, Wilson entered into a plea agreement with the Government, agreeing to plead guilty in exchange for a reduction in his offense level pursuant to U.S.S.G. § 3E1.1. The agreement also stated that if the Government, “in its sole discretion,” determined that Wilson had “provided substantial and truthful assistance in an investigation or prosecution,” the Government would move for a downward departure pursuant to U.S.S.G. § 5K1.1. (App. at 18.)
At the change of plea hearing, held the same day the parties executed the plea agreement, Wilson testified that he was satisfied with his counsel’s representation, that the written plea agreement accurately reflected the parties’ bargain, that no one had made any other promises or threatened him to enter the agreement, and that he understood the rights he was foregoing by pleading guilty. Additionally, Wilson did not take issue with any of the underlying facts set forth by the Government. Based on this colloquy, the District Court concluded that his guilty plea was knowing and voluntary.
On June 26, 2008, the District Court held Wilson’s sentencing hearing. During the hearing, Wilson sought to withdraw his guilty plea, claiming that he had been coerced into pleading guilty. The District Court quickly rejected this request, noting that it had already found his plea volun*383tary and that it had seen “no evidence to the contrary.” (Supp.App. at 23.)
The court then proceeded to calculate Wilson’s sentencing range under the Guidelines, concluding that the applicable range was 51 to 63 months’ imprisonment. The Government declined to move for a downward departure, explaining that although Wilson had tried to assist the Government, the information he had provided was merely “historical.” Nonetheless, the Government did recommend that Wilson be sentenced “somewhere from the low to mid end of the guideline range.” (Id. at 34.) The District Court ultimately did just that, sentencing Wilson to 56 months’ imprisonment, with two years’ supervised release. This timely appeal followed.1
II.
Wilson raises four claims in support of his appeal. He first argues that the District Court erred in “summarily” denying his request to withdraw his guilty plea. We review this aspect of the District Court’s judgment for abuse of discretion. See United States v. Brown, 250 F.3d 811, 815 (3d Cir.2001).
Once a district court accepts a criminal defendant’s guilty plea, he does not have an absolute right to withdraw it. See id. Rather, he may withdraw his guilty plea only if he shows, before the court imposes sentence, that there is a “fair and just reason” for doing so. See Fed.R.Crim.P. 11(d)(2). The burden of establishing a “fair and just reason” is substantial. United States v. Jones, 336 F.3d 245, 252 (3d Cir.2003).
Although Wilson claimed at sentencing that his plea had been coerced, a review of the transcript from the change of plea hearing clearly undermines this allegation. During the District Court’s thorough colloquy, Wilson testified that the written agreement reflected the bargain entered into by the parties, and that no one had threatened him into pleading guilty or made any promises to him that were, not contained in the written agreement. These unequivocal statements “carry a strong presumption of verity,” see Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), and he has not made any argument that would undermine this presumption.
Although nearly nine months separated his plea and sentencing hearings, Wilson did not first allege that his plea was coerced until a few days before sentencing, when he submitted a pro se filing claiming, inter alia, that “I was actually coerced into signing this plea, but in a clandestine like manner.” (Supp.App. at 84.) That filing did not expand on this allegation, nor did he formally move to withdraw his guilty plea; rather, he waited until moments before the court imposed sentence to reassert this conelusory allegation. Under these circumstances, the District Court did not abuse its discretion in rejecting Wilson’s oral request to withdraw his guilty plea. Nor did the court’s refusal to postpone sentencing to allow Wilson to file a formal motion to withdraw his plea violate due process.
Wilson next argues that, in rendering his sentence, the District Court failed to meaningfully consider the 18 U.S.C. § 3553(a) factors. Pursuant to § 3553(c), a sentencing court must, at the time of sentencing, “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). This provision does not require “a full opinion in every case.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). As the Supreme Court has explained:
*384[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence ... in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a) ... or argues for departure, the judge normally need say no' more.
Id. at 356-57,127 S.Ct. 2456.
In this case, neither party challenged the court’s Guidelines calculation or argued for a sentence outside the applicable Guidelines range. In recommending a sentence within the applicable range, the Government addressed the relevant § 3553(a) factors, and Wilson did not take issue with the Government’s proffer. Before rendering sentence, the District Court noted that Wilson had a “fair[ly] substantial” criminal history, and that he had “decided to put [his] energies into one direction, and that’s fighting the system.” (Supp.App. at 29, 37.) In imposing a sentence within the applicable range, the court stated that it had considered all of the § 3553(a) factors, and that the sentence imposed “will protect the public while meeting the additional sentencing goals of punishment and deterrence.” (Id. at 39.) Given the very simple, straightforward nature of this case, we conclude that the court properly considered the § 3553(a) factors.
Wilson also contends that the District Court erred in failing to review, sua sponte, the Government’s decision declining to file a downward departure motion. We disagree. The Government’s decision was reviewable only for “bad faith or an unconstitutional motive.” See United States v. Huang, 178 F.3d 184, 189 (3d Cir.1999). There was no indication, however, nor did Wilson allege, that the Government acted in bad faith or based its decision on an unconstitutional motive. To the contrary, the Government provided a cogent explanation for why it did not file a downward departure motion.
Finally, Wilson argues that his two attorneys in the District Court proceedings were ineffective.2 We do not reach the merits of these claims, as they are not sufficiently developed to warrant review on direct appeal. See United States v. Morena, 547 F.3d 191, 198 (3d Cir.2008) (stating that ineffectiveness of counsel claims are “generally not cognizable in the first instance on direct appeal,” as such claims are more appropriately reserved for collateral review, which “allows for adequate factual development of the claim[s]”). Wilson remains free to raise these claims in a motion pursuant to 28 U.S.C. § 2255.
In light of the foregoing, we will AFFIRM the Judgment and Commitment Order of the District Court.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Wilson's first attorney withdrew after the change of plea hearing due to a conflict of interest. His second attorney represented him at sentencing and withdrew shortly after this appeal was filed. Wilson is now represented by a third attorney. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477935/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William C. Mitchell appeals the district court’s order accepting the recommendation of the magistrate judge, granting the defendants summary judgment, and dismissing Mitchell’s action with prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Mitchell v. Cannon, No. 2:07-cv-03259-PMD, 2009 WL 824202 (D.S.C. Apr. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477937/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Terrence Cross petitions for permission under Fed. R.App. P. 5 to appeal the district court’s 2003 order denying his motion to dismiss the federal indictment against him. We find that Cross has not met the requirements to permit an appeal under Rule 5. Accordingly, we deny the petition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477938/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John D. Horton appeals the district court’s order accepting the recommendation of the magistrate judge and granting the Defendant’s motion for summary judgment and dismissing Horton’s Title VII action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Horton v. Donley, No. 3:07-cv-02316-MBS, 2009 WL 2782226 (D.S.C. Aug. 28, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477942/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael L. Pack appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Pack v. O'Malley, No. 1:09-cv-02912-WDQ (D.Md. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477944/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Floyd Junior Powell appeals the district court’s order dismissing his civil rights complaint. We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. See Powell v. Keller, No. 5:09-cv-00126-GCM, 2009 WL 4017145 (W.D.N.C. Nov. 18, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477946/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Thomas seeks to appeal the district court’s order adopting the report and recommendation of the magistrate judge and dismissing some, but not all, named Defendants from Thomas’s 42 U.S.C. § 1983 (2000) action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Thomas seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477948/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Sabari Bryan appeals the district court’s order adopting the recommendation of the magistrate judge and granting summary judgment for the Defendants on Bryan’s action under 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bryan v. SCDC, No. 3:08-cv-00846-RBH, 2009 WL 3166632 (D.S.C. Sept. 29, 2009). Additionally, we deny *405Bryan’s motions to compel and for production of a transcript. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477950/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Wise appeals the district court’s order adopting the magistrate judge’s recommendation to grant Defendants summary judgment on his 42 U.S.C. § 1983 (2006) claims against them. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Wise v. Ozmint, 6:09-cv-00153-HFF, 2009 WL 3232672 (D.S.C. Oct. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477952/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Vargas appeals the district court’s oi’der denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Vargas, No. 7:01-cr-00096-BR-l (E.D.N.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477941/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John David Hendrickson appeals the district court’s order dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (2006) for being frivolous and for failing to state a claim on which relief may be granted. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Hendrickson v. In the 20th Judicial Dish of Va., No. 1:09-cv-00563-CMH-IDD (E.D.Va. Sept. 25, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477943/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael L. Pack appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Pack v. O'Malley, No. 1:09-cv-02912-WDQ (D.Md. Nov. 12, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477947/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Thomas seeks to appeal the district court’s order adopting the report and recommendation of the magistrate judge and dismissing some, but not all, named Defendants from Thomas’s 42 U.S.C. § 1983 (2000) action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Thomas seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477949/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Sabari Bryan appeals the district court’s order adopting the recommendation of the magistrate judge and granting summary judgment for the Defendants on Bryan’s action under 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bryan v. SCDC, No. 3:08-cv-00846-RBH, 2009 WL 3166632 (D.S.C. Sept. 29, 2009). Additionally, we deny *405Bryan’s motions to compel and for production of a transcript. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477951/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Wise appeals the district court’s order adopting the magistrate judge’s recommendation to grant Defendants summary judgment on his 42 U.S.C. § 1983 (2006) claims against them. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Wise v. Ozmint, 6:09-cv-00153-HFF, 2009 WL 3232672 (D.S.C. Oct. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477953/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hector Vargas appeals the district court’s oi’der denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Vargas, No. 7:01-cr-00096-BR-l (E.D.N.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477954/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ibrahim Abdullah Jabbar seeks to appeal the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint in part. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed. R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Jabbar seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We deny Jabbar’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately *408presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477958/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alphonso Haynesworth appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. §§ 1983, 1985, 1986 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Haynesworth v. South Carolina Dep’t of Corr., No. 8:08-cv-01841-PMD, 2009 WL 3233470 (D.S.C. Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477960/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Lmar Jackson appeals the district court’s order accepting the recommendation of the magistrate judge and denying his petition for a writ of mandamus in which he sought to be resentenced or to have his sentence adjusted so that it ran concurrently with his state sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jackson, No. 3:99-cr-00001-JPB-JES-2, 2009 WL 3013732 (N.D.W.Va. Sept. 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477966/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Willis, a federal prisoner, appeals the district court’s orders denying his Fed. R.Civ.P. 60(b) motion and dismissing his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Willis v. United States, No. 3:08-cv-00517-RJC, 2009 WL 3150304 (W.D.N.C. Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477957/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Dale Richardson appeals the district court’s order denying his motion to reconsider the order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Richardson v. South Carolina Dep’t of Corr., No. 4:08-cv-2596-RBH (D.S.C. Oct. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477961/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugene Lmar Jackson appeals the district court’s order accepting the recommendation of the magistrate judge and denying his petition for a writ of mandamus in which he sought to be resentenced or to have his sentence adjusted so that it ran concurrently with his state sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Jackson, No. 3:99-cr-00001-JPB-JES-2, 2009 WL 3013732 (N.D.W.Va. Sept. 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477965/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary L. Wise appeals the district court’s order adopting the magistrate judge’s recommendation to dismiss his claims against Defendants after a 28 U.S.C. § 1915A (2006) review. We have reviewed the record and find no reversible error. Accordingly, we affirm the district court’s judgment. Wise v. United States, 6:09-cv-01376-HFF, 2009 WL 3052608 (D.S.C. Sept. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477967/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Willis, a federal prisoner, appeals the district court’s orders denying his Fed. R.Civ.P. 60(b) motion and dismissing his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Willis v. United States, No. 3:08-cv-00517-RJC, 2009 WL 3150304 (W.D.N.C. Sept. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478055/ | ON MOTION
ORDER
Upon consideration of the appellant’s unopposed motion to dismiss its appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) All sides shall bear their own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478057/ | *107ORDER
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/8477968/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Edward Ellerbe appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and its subsequent order denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Ellerbe, No. 5:97-cr-00100-BR-1 (E.D.N.C. Sept. 2, 2009; Dec. 9, 2009). We dény Ellerbe’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477974/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julian Edward Rochester appeals the district court’s order dismissing this action under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny the motion for declaratory judgment and affirm for the reasons stated by the district court. Rochester v. Seneca Town & Ins. Co., No. 2:08-cv-03417-HMH-RSC (D.S.C. Oct. 8, 2008). We dispense with oral argument because the facts and legal *439contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477978/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Dale Richardson appeals the district court’s order denying his motion to reconsider the order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Richardson v. South Carolina Dep’t of Corr., No. 4:08-cv-02597-RBH (D.S.C. Oct. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477980/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Dewayne McQueen appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no abuse of the district court’s discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (standard). Accordingly, we affirm on the reasoning of the district court. United States v. *456McQueen, No. 1:03-er-00269-JAB (M.D.N.C. Nov. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477996/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugenia B. White appeals the district court’s order denying her second motion to reconsider its order dismissing her em*467ployment discrimination complaint without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons slated by the district court. White v. Fairfax County Gov’t, No. 1:08-cv-01110-LMB-TRJ (E.D.Va. filed Dec. 9 & entered Dec. 10, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477971/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bryant Elliott Davidson appeals the district court’s order granting summary judgment in favor of the Appellees on Davidson’s 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Davidson v. Maryland, No. 1:08-cv-00524-WDQ (D.Md. Feb. 26, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477973/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas C. Burcher appeals the district court’s order granting Appellee’s motion for summary judgment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Burcher v. Siemans Automotive Corp., No. 4:08-cv-00106-JBF (E.D. Va. June 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477975/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Julian Edward Rochester appeals the district court’s order dismissing this action under 28 U.S.C. § 1915(e)(2)(B)(ii) (2006). We have reviewed the record and find no reversible error. Accordingly, we deny the motion for declaratory judgment and affirm for the reasons stated by the district court. Rochester v. Seneca Town & Ins. Co., No. 2:08-cv-03417-HMH-RSC (D.S.C. Oct. 8, 2008). We dispense with oral argument because the facts and legal *439contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477979/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Dale Richardson appeals the district court’s order denying his motion to reconsider the order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Richardson v. South Carolina Dep’t of Corr., No. 4:08-cv-02597-RBH (D.S.C. Oct. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477981/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Dewayne McQueen appeals the district court’s order denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no abuse of the district court’s discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (standard). Accordingly, we affirm on the reasoning of the district court. United States v. *456McQueen, No. 1:03-er-00269-JAB (M.D.N.C. Nov. 4, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477997/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eugenia B. White appeals the district court’s order denying her second motion to reconsider its order dismissing her em*467ployment discrimination complaint without prejudice. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons slated by the district court. White v. Fairfax County Gov’t, No. 1:08-cv-01110-LMB-TRJ (E.D.Va. filed Dec. 9 & entered Dec. 10, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477982/ | *459Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Louis Colbert, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Colbert v. Riveria, No. 2:09-cv-00848-CMC, 2009 WL 3417758 (D.S.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477984/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding-precedent in this circuit.
PER CURIAM:
Sean Terry appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Terry, No. 5:02-cr-00218-BO-1 (E.D.N.C. filed Nov. 20, 2009; entered Nov. 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477987/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank L. Hinton, a federal prisoner, appeals the district court’s order adopting the magistrate judge’s report and recommendation and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and the magistrate judge. Hinton v. Warden, USP Hazelton, No. 2:09-cv-00096-REM-JES, 2009 WL 3762306 (N.D.W.Va., Nov. 9, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477989/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terence Dewayne Bullock appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Bullock, No. 4:00-cr-00060-JBF-1 (E.D.Va. Dec. 2, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477990/ | *464Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight Xavier Jones seeks to appeal a December 10, 2009 order of the district court. The district court docket sheet reveals no such order, or any other final or appealable order. See 28 U.S.C. §§ 1291, 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Therefore, we grant the Appellees’ motions to dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477992/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Allen Woody appeals the district court’s orders denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and his motion for reconsideration of the denial of his § 3582(c) motion. We have reviewed the record and find no abuse of the district court’s discretion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (standard). Accordingly, we affirm for the reasons stated by the district court. United States v. Woody, No. 5:06-cr-00040-1 (S.D.W.Va. Nov. 17, 2009; Dec. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477994/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earl L. Thornton, Jr., appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Thorton v. Harrison, No. 5:08-cv-00043-F (E.D.N.C. July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477983/ | *459Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Louis Colbert, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Colbert v. Riveria, No. 2:09-cv-00848-CMC, 2009 WL 3417758 (D.S.C. Oct. 21, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477986/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank L. Hinton, a federal prisoner, appeals the district court’s order adopting the magistrate judge’s report and recommendation and denying relief on his 28 U.S.C. § 2241 (2006) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court and the magistrate judge. Hinton v. Warden, USP Hazelton, No. 2:09-cv-00096-REM-JES, 2009 WL 3762306 (N.D.W.Va., Nov. 9, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477991/ | *464Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight Xavier Jones seeks to appeal a December 10, 2009 order of the district court. The district court docket sheet reveals no such order, or any other final or appealable order. See 28 U.S.C. §§ 1291, 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Therefore, we grant the Appellees’ motions to dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477993/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Allen Woody appeals the district court’s orders denying his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006), and his motion for reconsideration of the denial of his § 3582(c) motion. We have reviewed the record and find no abuse of the district court’s discretion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (standard). Accordingly, we affirm for the reasons stated by the district court. United States v. Woody, No. 5:06-cr-00040-1 (S.D.W.Va. Nov. 17, 2009; Dec. 1, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477995/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Earl L. Thornton, Jr., appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Thorton v. Harrison, No. 5:08-cv-00043-F (E.D.N.C. July 31, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478006/ | PER CURIAM: *
*504Ivan Ulises Galarza-Ramos (Galarza) appeals the 70-month sentence imposed following his guilty plea conviction for illegal reentry following deportation. He contends that the sentence was greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was therefore substantively unreasonable. Specifically, Galarza argues that the guidelines range was too severe because United States Sentencing Guideline § 2L1.2 was not empirically based and gave excessive weight to his prior robbery conviction. He contends that the guidelines range overstated the seriousness of his nonviolent reentry offense and failed to account for his motive for reentering the United States. Galarza also argues that this court should not afford a presumption of reasonableness to a sentence imposed under § 2L1.2; however, he recognizes that United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009), forecloses this argument.
This court reviews the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, — U.S.-, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008).
This court has consistently rejected Ga-larza’s “empirical data” argument. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009). The district court considered Ga-larza’s request for a downward variance, and it ultimately determined that a sentence at the bottom of the applicable guidelines range was appropriate based on the circumstances of the case and the § 3553(a) factors. Galarza’s assertions regarding § 2L1.2’s lack of an empirical basis, the weight given his prior robbery conviction, the nonviolent nature of his offense, and his motive for reentering the United States are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008). As Galarza has not demonstrated that the district court’s imposition of a sentence at the bottom of the guidelines range was an abuse of discretion, the district court’s judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *504published 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/8478011/ | PER CURIAM: *
The attorney appointed to represent Ev-erardo Rodriguez-Gomez (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 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/8478013/ | ORDER
Maria Porch worked for the United States Postal Service for over 20 years before she was suspended in 2005. In this lawsuit under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-7961, Porch claims that the Postal Service disciplined her because of a disability and to retaliate for complaining about discrimination in the workplace. The district court granted summary judgment for the Postal Service. We affirm that decision.
The following account, except where noted, was undisputed for purposes of summary judgment. Porch suffers from depression, a condition that kept her away from work between 1998 and 2001. She also has been injured on the job, twice by her count. The Postal Service acknowledges that Porch was injured in 2002 when a container holding mail fell on her. When Porch returned to work, the Postal Service accommodated her residual shoulder and arm pain by reassigning her from a position sorting mail to a light-duty job that allowed her to sit at a table repairing torn items of mail at her own pace. Porch was still doing this job on January 27, 2005, when she reportedly suffered another injury at work.
On that day Porch told her supervisor that the plastic cover on a toilet-paper dispenser in a post office restroom had popped open and struck her in the head and shoulder when she tried to pull tissues from the roll. The supervisor quickly inspected the dispenser and found it to be intact. She also summoned an in-house doctor, who noted that Porch was complaining of a headache and numbness in her ear but showed no visible signs of bumps, bruises, or swelling. The doctor concluded that Porch’s headache was not related to the alleged incident.
Porch, though, did not go to work for more than two weeks. She made multiple visits to her personal physician, Dr. Jacob Salomon, and complained of severe headaches and arm pain that she attributed to the dispenser incident. Dr. Salomon gave her several notes excusing her from work. In one note he opined that Porch was “totally incapacitated” and unable to work from January 29 to February 15. That note prompted management to require that Porch again see the in-house doctor. Porch told the doctor that her head and arm pain had improved with the use of over-the-counter pain relievers. Still, she said, she was suffering from headaches and depression that rendered her unable to work. The anxiety was so great, she added, that she was unable to drive and was spending her days resting at home.
Meanwhile, Porch had filed with the Department of Labor a claim for workers’ compensation, which she supported with more notes from Dr. Salomon saying she was “totally incapacitated” and unable to work because of the dispenser incident. Porch’s claim was approved and she remained on paid leave until February 16, when officially she returned to her job. During the next two weeks, however, Porch worked only three full days. Every other day she either reported to work late, left early for appointments, or took leave authorized by her claim for workers’ compensation. Each time she would produce more notes from Dr. Salomon explaining that her absences or late arrivals were attributed to the dispenser incident. The doctor said nothing about depression.
What Porch did not know was that postal inspectors had her under surveillance while she was on paid leave and receiving workers’ compensation. During this time Porch was seen driving, shop*671ping, spending hours at a beauty salon, and carrying bags of groceries and trays of drinks with her injured arm. In early March an inspector questioned Porch about these activities. Porch said she remembered having severe headaches each day but otherwise could not recall what she had done while on leave. When shown videos of herself, however, Porch changed direction and explained that she was able to engage in normal activities away from the post office because it was stress from that job which triggered her disabling anxiety and depression. When asked if she had continued attending college courses at night while on leave, Porch said she had not gone since the dispenser incident, but attendance records later obtained by subpoena showed that Porch had indeed attended several classes during this time.
Based on the findings in the postal inspectors’ report, Porch was placed on emergency suspension for submitting a fraudulent claim for workers’ compensation. The report concluded that, while on leave, Porch was performing “activities inconsistent with her claimed medical restrictions.” Several weeks later Porch was notified that she was being discharged as of May 14, 2005, for her fraudulent behavior. The Postal Service had concluded from its surveillance that Porch had not been “totally incapacitated” from the dispenser incident and instead could have performed her light-duty job.
In response Porch first filed a union grievance challenging her suspension and termination. The Postal Service settled part of the grievance by rescinding the emergency suspension and paying Porch through May 14. The Postal Service also unilaterally reduced her termination to a long-term suspension, lasting from May 14, 2005 through February 12, 2006. Nonetheless, Porch pressed her claim and a year later an arbitrator found that the Postal Service had just cause for disciplining Porch for submitting a fraudulent claim. But the arbitrator’s decision did not entirely resolve the matter because, in the interim, Porch had filed an internal administrative complaint alleging, as relevant here, that her suspension was because of a disability — depression—and in retaliation for prior complaints about discrimination.
When her administrative claim did not succeed, Porch filed this action making the same allegations and seeking upwards of $10 million. In granting summary judgment on the claim of disability discrimination, the district court reasoned that Porch’s depression was not disabling within the meaning of the Rehabilitation Act because there was no evidence that Porch’s condition had substantially limited any major life activity. As for Porch’s retaliation claim, the court concluded that Porch lacked evidence from which a jury reasonably could find a causal connection between her termination and her unspecified prior complaints about discrimination. The court also recognized that Porch had not disputed the Postal Service’s explanation that she was disciplined because of her fraud.
We review a grant of summary judgment de novo. Creios v. City of Mt. Vernon, 567 F.3d 860, 864 (7th Cir.2009). To defeat a motion for summary judgment, the opponent must introduce evidence demonstrating a genuine issue for trial. Anders v. Waste Mgmt. of Wis., Inc., 463 F.3d 670, 675 (7th Cir.2006). In reviewing the record we draw all reasonable inferences in favor of the nonmoving party. Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir.2003).
We note at the outset that the undisputed evidence shows that Porch was disciplined for committing fraud, not because of her alleged disability or any perception *672that she was disabled. The evidence of her fraud is alone enough for us to affirm the district court’s grant of summary judgment to the Postal Service on both the discrimination and retaliation claims because it demonstrates that the Postal Service had a legitimate, non-discriminatory reason for disciplining Porch, and Porch has no direct evidence of an unlawful motive or evidence that the Postal Service’s stated reason was a pretext to mask an unlawful motive. In fact, in light of the undisputed evidence showing Porch’s fraud, any suggestion of a pretext would be highly ironic. We also reach the same result through analysis of the elements necessary to establish claims of discrimination and retaliation under the Rehabilitation Act.
To establish disability discrimination, a plaintiff must establish that she (1) is disabled under the statutory definition, (2) is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) suffered an adverse employment action because of her disability. Garg v. Potter, 521 F.3d 731, 736 (7th Cir.2008); Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir.2005). Only the first element was disputed by the Postal Service. Porch argued, and repeats here, that her depression is a qualifying disability because, she asserts, her job at the post office exacerbates her depression and in turn prevents her from carrying out her job duties.
Having an impairment is not enough. Depression, depending on its severity, may or may not constitute a disability. Cassi-my v. Board of Education of Rockford Public Schools, 461 F.3d 932, 936 (7th Cir.2006). For Porch’s depression to meet the statutory definition of a qualifying disability, the condition must substantially limit at least one major life activity, id. at 936; Scheerer v. Potter, 443 F.3d 916, 918-19 (7th Cir.2006), or at least be perceived by the employer as substantially limiting a major life activity, see School Bd. of Nassau County v. Arline, 480 U.S. 273, 282-83, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); Garg, 521 F.3d at 736. Porch has never contended that the Postal Service perceived her as being disabled; quite the contrary. Thus the relevant inquiry is whether a jury reasonably could conclude from this record that Porch’s depression limits a major life activity.
Major life activities are those of “central importance to daily life,” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and include walking, eating, sleeping, learning, and working, 28 C.F.R. § 41.31(b)(2); 45 C.F.R. § 84.3(j)(2)(ii); Bragdon v. Abbott, 524 U.S. 624, 638-39, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Hancock v. Potter, 531 F.3d 474, 479 (7th Cir.2008). The focus here is on the activity of working.
A person is substantially limited in an activity if she cannot perform it or, in comparison to an average person in the general population, is “significantly restricted as to the condition, manner or duration” under which she can perform that activity. 29 C.F.R. § 1630.2(j)(l); Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 781 (7th Cir.2007). When working is the major life activity at issue, it is not enough for a plaintiff to show that her impairment keeps her from doing her present job; an impairment does not substantially limit the major life activity of working unless the condition prevents the plaintiff from performing “a broad range of jobs.” 29 C.F.R. § 1630.2(j)(3)(i); see Toyota Motor Mfg., 534 U.S. at 200, 122 S.Ct. 681; Squibb, 497 F.3d at 781-82; Cassimy, 461 F.3d at 936; Peters v. City of Mauston, 311 F.3d 835, 843 (7th Cir.2002).
And that is where Porch’s claim ends. Her contention is that just going to the post office triggered anxiety and stress *673that depressed her to the point that she could not do her job. For proof, she points only to a statement from Dr. Salo-mon, who described Porch as “totally incapacitated.” But the doctor defined “total incapacity” to mean “the inability of rendering any useful service for the United States Postal Service,” and of course that is not the standard. Even if Dr. Salomon was correct in saying that Porch could not continue repairing torn mail at a post office, Porch’s evidence still does nothing more than demonstrate an inability to perform one particular job. That is not enough to render her substantially limited in the major life activity of working. See Squibb, 497 F.3d at 782; Cassimy, 461 F.3d at 936-37; Peters, 311 F.3d at 843. We agree with the district court that the Postal Service was entitled to summary judgment on Porch’s discrimination claim.
As for the retaliation claim, see 29 U.S.C. § 794(d); 42 U.S.C. § 12203, Porch argues that the district court erred in concluding that her evidence, which was limited to the inference arising from the timing of the disciplinary action relative to her internal complaints about discrimination, was insufficient for a jury to find retaliation. On this claim Porch would have to establish that (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) there was a causal connection between the two events. Burks v. Wisconsin Dep’t of Tramp., 464 F.3d 744, 758 (7th Cir.2006). Porch’s suspension and her administrative complaints to the Equal Employment Opportunity office within the Postal Service satisfy the first two elements, so the central question is whether she offered enough evidence to allow a reasonable jury to find the necessary causal connection.
The Postal Service offered undisputed evidence that Porch filed a fraudulent claim for workers’ compensation. The Postal Service also introduced evidence that Porch’s fraud motivated its decision to discipline her. In fact, in her response to the motion for summary judgment, Porch conceded that the manager who made the initial decision to fire her acted on the basis of “what he believed to have been workers’ compensation fraud,” so it is difficult to see how Porch could have a claim for retaliation on this record. She had no direct evidence of a causal link between the adverse employment action and her protected activity, so she was left to rely on timing alone. Porch points out that she filed two administrative complaints in 2005 and was initially discharged in May of that year. Yet the second of those complaints was submitted six days after Porch’s termination date, and so it could not have been a motivation for the discipline. The other administrative complaint had been filed in January, and it did allege disability discrimination. But temporal proximity between protected activity and an adverse action rarely will suffice alone to create a triable issue, Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008); Moser v. Ind. Dept, of Corr., 406 F.3d 895, 905 (7th Cir.2005); Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.2002), and certainly not here, where we have undisputed evidence that Porch was disciplined for fraud. Since Porch presented no other evidence of a retaliatory motive to shore up this weak inference of suspicious timing, summary judgment was also proper on this claim.
The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478015/ | ORDER
In November 2006, Alex, Mary and Jennie Woods filed a lawsuit under 42 U.S.C. § 1983 claiming that the City of Rockford, Illinois, had deprived them of due process by declining to renew, without a predepri-vation hearing, the liquor license for their nightclub. They also claimed that the City had denied them equal protection by imposing racially motivated restrictions that hampered their use of the license before it was lost. The district court dismissed the case at summary judgment after accepting the City’s contention that both claims were barred by the applicable statute of limitations. We affirm.
The evidence at summary judgment, viewed in the light most favorable to the plaintiffs, see Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009), establishes the following. From 1995 to 2004, the plaintiffs operated Lamont’s Restaurant and Lounge, a Rockford nightclub that catered primarily to African Americans. Lamont’s was incorporated but did not have its own liquor license. Instead, Mary and Jennie Woods had acquired a liquor license in their own names and sold liquor at Lamont’s under the authority of that license. Until 2004, those two plaintiffs, themselves African American, were permitted to renew their license despite ongoing disputes with the City concerning the operation of Lamont’s. By the tune they lost their liquor license for good, the two license holders had received citations due to the presence of minors on the premises, the sale of alcohol to minors and violence *676at the establishment. The license had also been suspended for 14 days in 2003 for the sale of alcohol to a minor. On at least one occasion, Mary and Jennie Woods had consented to restrictions imposed by the City on Lamont’s operations, apparently as a condition to permit the continued use of the liquor license.
On April 28, 2004, Jennifer Cacciapaglia, an assistant city attorney, wrote Mary and Jennie Woods and informed them that their liquor license would expire at 11:59 p.m. on Friday, April 30, 2004, and would not be renewed. The recipients, who already had applied for renewal and paid the renewal fee, were ordered to cease selling liquor at Lamont’s at the stated time. They were also told that they could contest the decision and request a hearing by notifying the City in writing within 10 days. The City asserts that its action was taken in response to a history of violence at Lamont’s, as evidenced by more than 90 calls to police during a relatively short period, culminating in a shooting in April 2004.
Police showed up to enforce the nonre-newal, and Lamont’s did not operate again after April 30. The evidence in the record is sparse concerning the subsequent communications between the plaintiffs and the City, but the parties continued to contemplate a “liquor hearing” for several months. On August 25, 2004, Ms. Caccia-paglia wrote counsel for the plaintiffs advising them that a hearing had been scheduled for December 9, 2004. In August 2004, the City also offered to revive the license on the condition that the plaintiffs sell Lamont’s. The plaintiffs did not appear at the December hearing, nor did counsel appear on them behalf. On December 14, 2004, Ms. Cacciapaglia wrote Mary and Jennie Woods advising that she perceived no further need for a hearing.
What happened between the parties after December 14 is not disclosed by the record. Decisions of a local liquor commissioner (in Rockford the mayor serves in that capacity) may be appealed to the Illinois Liquor Control Commission, but Mary and Jennie Woods did not appeal to the Commission. Instead, in November 2005, the corporation filed a lawsuit raising the same claims asserted by the plaintiffs in this litigation. Lamont’s Rest. & Lounge, Inc. v. City of Rockford, No. 05-CV-50225 (N.D.I11. Aug. 30, 2006). None of the plaintiffs joined that suit individually. The suit was filed by counsel on behalf of the corporation, but counsel withdrew early in the litigation, and despite multiple continuances to permit the corporation to find a replacement, no other attorney made an appearance. The district court, after denying a motion from these plaintiffs to join the corporation’s suit as co-plaintiffs, dismissed the corporation’s lawsuit on August 30, 2006, for want of prosecution.
Meanwhile, on August 7, 2006, the plaintiffs had taken the initial steps to commence this lawsuit. They tendered a complaint naming themselves as plaintiffs, filed an application to proceed in forma pauperis and moved for appointment of counsel. The district court denied their request for pauper status on the same day that the corporation’s suit was dismissed. The plaintiffs then waited two months before paying the filing fee and thus their complaint was not filed until November 7, 2006. The corporation is not a party to the second lawsuit, but the plaintiffs’ complaint is nearly identical to the corporation’s.
After discovery, the plaintiffs moved for summary judgment. The City filed a cross-motion for summary judgment. In its motion, the City argued in part that the plaintiffs’ claims were barred by the two-year statute of limitations that governs § 1983 suits in Illinois. See 735 ILCS 5/13-202; Wilson v. Garcia, 471 U.S. 261, *677276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Savory v. Lyons, 469 F.3d 667, 672 (7th Cir.2006). According to the City, the injuries alleged by the plaintiffs occurred, at the latest, on May 1, 2004, the day that Lamont’s was first prohibited from selling liquor. The district court agreed and granted summary judgment for the City.
As an initial matter, the City has argued, both in the district court and on appeal, that Alex Woods lacks standing in this matter. The City correctly notes, in order to have standing, Mr. Woods must have a cognizable injury that is causally connected to the alleged conduct — here a constitutional violation — and is amenable to redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Sierra Club v. Franklin County Power of III., L.L.C., 546 F.3d 918, 925 (7th Cir.2008). Mr. Woods meets this threshold only with respect to the equal protection claim. He has an ownership interest in the corporation and apparently managed Lamont’s, but the liquor license was issued not to Mr. Woods or to the corporation; rather, it was issued to Mr. Woods’s wife and mother, Mary and Jennie Woods, as individuals. Mr. Woods asserts that he personally applied for the renewals, but this representation is not supported in the record and, in any event, does not alter the fact that the license was not in his name. Mr. Woods cannot seek relief for the alleged due process violation on behalf of his wife or mother. See Barber v. Overton, 496 F.3d 449, 457-58 (6th Cir.2007j; Siebert v. Severino, 256 F.3d 648, 659 n. 8 (7th Cir.2001). On the other hand, the plaintiffs’ equal protection claim is not moored only to the license but to the City’s alleged pattern of conduct toward Lamont’s, in which Mr. Woods played an important role. Therefore, Mr. Woods has standing to press that claim.
On the merits, the plaintiffs principally argue that their claims were timely because they did not accrue until December 14, 2004, when Ms. Cacciapaglia notified them that a hearing would not be conducted. The City responds that the plaintiffs’ claims accrued when the liquor license was not renewed at the end of April 2004, a date more than two years before they filed this suit.
As a threshold matter, the plaintiffs arguably waived their theory about the date of accrual because they did not raise the argument at summary judgment. See Domka v. Portage County, Wis., 523 F.3d 776, 783 (7th Cir.2008); Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.2008). In the disti’ict court, the plaintiffs relied on their theory that the corporation’s November 2005 lawsuit was, in their view, dismissed only temporarily and was enough to bridge the gap between the date of accrual asserted by the City and their November 2006 lawsuit. Although they did not cite it, the plaintiffs apparently relied on the Illinois savings statute, see 735 ILCS 5/13-217, which permits plaintiffs to refile an action within one year of a voluntary dismissal, which Illinois defines to include dismissals for lack of prosecution. See S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander, 181 I11.2d 489, 230 Ill.Dec. 209, 693 N.E.2d 338, 342 (1998). The district court correctly held that the corporation’s lawsuit, to which the plaintiffs were not parties and the dismiss- . al of which the corporation did not appeal, did not toll the statute of limitations for their individual claims.
Nevertheless, we may address the plaintiffs’ new accrual theory because the City has not asserted waiver in its brief before us. Indeed, it has briefed the statute-of-limitations argument without mentioning the plaintiffs’ argument in favor of a December 2004 accrual. See Riemer v. *678III Dep’t of Trans., 148 F.3d 800, 805 n. 4 (7th Cir.1998).
The district court was correct to find the plaintiffs’ claims time-barred. A § 1983 claim accrues when a plaintiff knows or should know that his constitutional rights have been violated. See Savory, 469 F.3d at 672; Kelly v. City of Chi, 4 F.3d 509, 511 (7th Cir.1993). Although the plaintiffs now argue that December 14, 2004 — the date the City first announced that it no longer saw a need for the contemplated liquor hearing — was the date their claims accrued, May 1 bears all the markers of the date of accrual. Under Illinois law, a municipal liquor authority may not revoke or decline to renew a liquor license without giving the licensee three days’ written notice and the opportunity to appear and defend. 235 ILCS 5/7-5. We have interpreted this directive to grant a licensee a due process right to a hearing prior to the loss of a liquor license, including a loss by nonrenewal. See Pro’s Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th' Cir.2009); Kelly, 4 F.3d at 511; Reed v. Shorewood, 704 F.2d 943, 949 (7th Cir.1983). Accordingly, on May 1, Mary and Jennie Woods knew that the City had failed to renew their license in violation of their right to due process. Moreover, the harm attendant to the nonrenewal began to accrue immediately on May 1 when the City raided Lamont’s and shut it down. The discussions between the license holders and the City, after May 1, may be characterized as the City’s attempt at post-deprivation process or as an offer to consider reinstating the license. The license was finally revoked on May 1 and the alleged due process violation had been committed.
Similarly, the plaintiffs’ equal protection claim concerns events before May 1 that culminate in the nonrenewal of the liquor license. The plaintiffs primarily point to what they contend was the City’s “racial profiling” of themselves and them clientele. They focus on several nuisance citations, the City’s February 2003 order imposing dress-code limitations on Lamont’s, including rules apparently meant to discourage gang presence (including gang colors), and on their liquor license problems to support this claim. All of these actions occurred before the license was lost in May 2004, and these claims therefore accrued, at the latest, when Lamont’s closed.
The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478017/ | ORDER
Alexander Serrano sold drugs to an informant who approached him wanting to buy crack cocaine. He pleaded guilty to a single count of distributing a controlled substance, 21U.S.C. § 841(a)(1), but reserved the right to argue at sentencing that the substance, although cocaine, was not crack. The sentencing court found that it was crack and, because it weighed at least 50 grams, imposed the 10-year statutory minimum, see id. § 841(b)(l)(A)(iii).
Serrano filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and move to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Serrano opposes counsel’s motion. See CIR. R. 51(b). We limit our review to the potential issues addressed in counsel’s facially adequate brief and in Serrano’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
The district court concluded, by a preponderance of the evidence, that the cocaine Serrano sold was crack, not powder or some other form of cocaine base. The testimony of two forensic chemists supports that finding. The government also called FBI special agent Michael Culloton, who opined that recordings of conversations Serrano had with the informant and others established that he “cooked” powder cocaine into crack for the informant. Because the district court found that the substance was crack, the guidelines provided for a base offense level of 30. U.S.S.G. § 2D1.1(c)(5). After a 3-level credit for acceptance of responsibility, id. § 3E1.1, the imprisonment range would have been 78 to 97 months if not for the statutory minimum.
Serrano has told appellate counsel that he does not want his guilty plea vacated, and so counsel appropriately refrain from discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). That leaves only the sentence. In their Anders submission, counsel first consider whether Serrano could argue that the district court errone*687ously admitted Agent Culloton’s testimony and whether the evidence was sufficient to prove that the substance he distributed was crack. We agree that these contentions would be frivolous. We have held that drug type may be proved through testimony from people familiar with the drug, including law enforcement officers. E.g., United States v. Padilla, 520 F.3d 766, 771 (7th Cir.2008); United States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000). And the testimony of two forensic chemists and a veteran FBI agent are more than enough to support the court’s finding that Serrano distributed crack to the informant. See United States v. Wil-bom, 576 F.3d 676, 678-80 (7th Cir.2009); United States v. Lake, 500 F.3d 629, 634 (7th Cir.2007); United States v. Buchanan, 362 F.3d 411, 413 (7th Cir.2004); see also United States v. Dmnes, 313 F.3d 372, 384 (7th Cir.2002) (holding that sentencing court did not commit clear error in finding that substance was crack in view of recorded conversations referring to “cooking” cocaine).
Counsel also consider arguing that the district court should have concluded that the different statutory mínimums for equal weights of crack and powder cocaine are unconstitutional given the degree of difference and the perceived disproportionate impact on black defendants. But we have rejected this argument repeatedly, see United States v. Tnce, 484 F.3d 470, 476 (7th Cir.2007); United States v. Blanding, 53 F.3d 773, 776 (7th Cir.1995); United States v. Chandler, 996 F.2d 917, 918-19 (7th Cir.1993), and thus counsel are correct to characterize the argument as frivolous. And because Serrano’s constitutional argument would be frivolous, so too would be his contention that the district court should have imposed a sentence below the statutory minimum. Even if the court had wanted to impose a sentence below the statutory minimum, sentencing courts have no authority to disregard statutory minimums. Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Douglas, 569 F.3d 635, 636 (7th Cir.2009).
In his Rule 51(b) response, Serrano echoes the potential argument identified by counsel and then requests that we hold the appeal in abeyance because a bill has been introduced in Congress that would amend 18 U.S.C. § 3553 to allow sentencing courts to disregard statutory minimums as a matter of discretion. See Ramos-Compean Justice Act of 2009, H.R. 3327, 111th Cong. § 2 (2009). We decline to do so.
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/8478019/ | ORDER
This is the fourth lawsuit brought in federal court by Michael Havrilesko on behalf of his clients, John and James Hess, against-Reg-Ellen Machine Tool Corporation and its Employee Stock Ownership Plan (ESOP) arising out of changes in the value of their retirement accounts. After prevailing yet again on summary judgment, the defendants were awarded attorneys’ fees. Havrilesko now contests that fee award. We affirm.
In 2000 and 2002, the Hesses, former employees of Reg-Ellen, sued Reg-Ellen and its ESOP claiming that they ignored the Hesses’ investment requests, thereby violating the plan and the Employee Retirement and Income Security Act (“ERISA”). See 29 U.S.C. § 1132(a)(1)(B). Those two suits were consolidated into a single case. The district court granted summary judgment for the defendants, concluding that the defendants’ actions were not arbitrary or capricious and thus in accord with the terms of the plan. We affirmed. Hess v. Reg-Ellen Mach. Tool Corp. (Hess I), 423 F.3d 653, 666 (7th Cir.2005). The Hesses sued the company and the plan again, claiming this time that the defendants improperly denied the Hesses’ requests to rollover their accounts into a new plan, to segregate and liquidate their accounts, and to diversify their investments. The district court granted summary judgment for the defendants, and we affirmed again, stating, “We trust that this is the last time that we, or any other court, will be seeing this case: two lawsuits are enough.” Hess v. Reg-Ellen Mach. Tool Corp. Employee Stock Ownership Plan (Hess II), 502 F.3d 725, 730 (7th Cir .2007).
But we spoke too soon. Less than a month after arguing Hess II in our court, the plaintiffs filed another suit asserting that the defendants’ denial of their diversification and segregation requests constituted a breach of their fiduciary duty. The district court granted summary judgment for the defendants because res judicata barred the Hesses’ claim. It also ruled that even if it addressed the merits, their claim failed.
The district court next granted the defendants’ request for $46,054.70 in attorneys’ fees incurred after Hess II, see N.D. *690III. R. 54.3, to be split equally by the Hesses and their attorney, Havrilesko. The court concluded fees were proper under 29 U.S.C. § 1132(g)(1): the Hesses’ claim was not substantially justified because it was barred by res judicata; it was not maintained in good faith because the Hesses pressed on with this suit in spite of our warning in Hess II; and no special circumstances made an award of fees unjust. Additionally, the court concluded fees were proper under 28 U.S.C. § 1927 because the Hesses’ attorney multiplied proceedings unreasonably and vexatiously.
ERISA authorizes the award of reasonable attorneys’ fees to the prevailing party and we recognize a modest, rebutta-ble presumption in favor of awarding these fees. See 29 U.S.C. § 1132(g)(1); Laborers’ Pension Fund, v. Lay-Com, Inc., 580 F.3d 602, 615 (7th Cir.2009); Herman v. Central States, Se. & Sw. Areas Pension Fund, 423 F.3d 684, 695-96 (7th Cir.2005). A party is entitled to attorneys’ fees unless the loser had “substantial justification” in bringing suit. See Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 672 (7th Cir.2007). This means that the losing party’s position is more than nonfrivolous, though less than meritorious. Herman, 423 F.3d at 696; Harris Trust & Sav. Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 617 n. 4 (7th Cir.1995).
? urges us to review the fee award de novo based on his belief that “the standard of review for a district court’s findings in a fee petition case should be the same as that for summary judgment.” It’s not. We review a grant of attorneys’ fees under both 29 U.S.C. § 1132(g)(1) and under 28 U.S.C. § 1927 for an abuse of discretion. See Laborers’ Pension Fund, 580 F.3d at 615 (29 U.S.C. § 1132(g)(1)); Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 614 (7th Cir.2006) (28 U.S.C. § 1927). And we’ve explained why: the district court is in a superior position to understand the litigation, and we want to avoid excessive intrusion into what are essentially factual matters. See Robinson v. City of Harvey, 489 F.3d 864, 872 (7th Cir.2007); Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir.2003).
[4] Havrilesko contends that he was substantially justified in bringing the current case because our decision in Harzewski v. Guidant Corp., 489 F.3d 799, 806 (7th Cir.2007), held that a former pension plan participant may sue a plan administrator for breach of fiduciary duty. But just as nothing prohibited the plaintiffs in Harzewski from bringing their fiduciary-duty claims under our pre-Harzewski case law, nothing barred the Hesses from doing so in their earlier lawsuits. Because they could have brought this claim earlier, res judicata bars it. See Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir. 2007); Simon v. Allstate Employee Group Med. Plan, 263 F.3d 656, 658 (7th Cir. 2001); 1901 Corp. v. Town of Cicero, 220 F.3d 522, 529 (7th Cir.2000).
Havrilesko next contends that because he supplied an undisputed affidavit asserting that the defendants told him he that could bring “additional” claims, he created a genuine issue whether the defendants were “equitably estopped” from raising the res judicata defense. As the district court correctly concluded, this argument was frivolous because this lawsuit contained no “additional” claims. A “claim” consists of the underlying factual events rather than the legal theories advanced. Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir.2008); Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001). Because the Hesses pressed only a new theory on the same underlying facts, they raised no additional claims.
*691Next, Havrilesko attacks the district court’s conclusion that he disregarded in bad faith our warning in Hess II against more litigation because we issued the warning after he filed this suit. But the court did not conclude that he exhibited bad faith by initiating this suit before Hess II, but by maintaining it after. Attorneys are under a continuing duty to dismiss a claim that is no longer viable. See Jolly Group, Ltd. v. Medline Indus. Inc., 435 F.3d 717, 720 (7th Cir.2006); Burda v. M. Eclcer Co., 2 F.3d 769, 778 (7th Cir.1993). The district court issued attorneys’ fees only for the time after Hess II. On this basis, we cannot find an abuse of discretion. See Stark v. PPM Am., Inc., 354 F.3d 666, 673 (7th Cir.2004).
Havrilesko also asserts that because he submitted an unrebutted affidavit attesting that he could not afford to pay, the court improperly concluded an award of fees was warranted. But the court permissibly ruled that his affidavit did not give it an adequate basis to find an inability to pay: he attached no bank statements or tax returns, and failed to disclose whether he had any alternate sources of income. Stark, 354 F.3d at 673-74. The court therefore properly concluded that Havrilesko—who bore the burden of showing special circumstances, see Stark, 354 F.3d at 673-74; Prod. & Maint. Employees’ Local 501 v. Roadmaster Corp., 954 F.2d 1397, 1404 n. 1 (7th Cir.1992); see also Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 969-70 (8th Cir. 2002)—did not qualify for relief. See Stark, 354 F.3d at 673-74. And in any case, “a lawyer’s ability to pay does not affect the appropriate award for a violation of § 1927,” Shales v. Gen. Chauffeurs Local 330, 557 F.3d 746, 749 (7th Cir.2009); see also Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1206 (10th Cir.2008), which was one of the two statutory bases for the fee award.
? the defendants have asked for fees on appeal, and because this appeal is just as frivolous as the district court litigation, they are entitled to them. See Bandak v. Eli Lilly & Co. Ret. Plan, 587 F.3d 798, 802-03 (7th Cir.2009); Sullivan, 504 F.3d at 672. The defendants should submit within 14 days an itemized statement of the attorneys’ fees that they incurred in defending the appeal, and Havri-lesko will have 14 days to respond.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478021/ | ORDER
Jeffrey Leiser was acquitted in Wisconsin state court of sexually assaulting his girlfriend’s nine-year-old granddaughter but convicted of assaulting her eight-year-old granddaughter. After exhausting the state appellate and postconviction processes, Leiser filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal court. The district court denied his petition but granted him a certificate of appealability. We affirm.
The eight year old reported to her mother that Leiser, her grandmother’s live-in boyfriend, had touched her in her private parts while she was sitting on his lap watching a movie at her grandmother’s house. The girl revealed the assault when her mother asked both her daughters whether Leiser had ever touched them. The question was prompted by her discovery that Leiser was listed on a sex-offender registry. Although the nine year old, unlike her sister, initially denied being touched, a few months later she told her mother that Leiser had touched her inappropriately too, also while sitting on his lap at her grandmother’s house. Leiser was charged with two counts of sexual assault.
Before trial the court prohibited the prosecution from mentioning any of the details surrounding the 1996 conviction that led to Leiser registering as a sex offender. Leiser had been convicted of second-degree sexual assault based on a long-term sexual relationship he had begun with a 12-year-old girl whom he impregnated when she was 14. Although the prior relationship consisted primarily of intercourse, it appears that Leiser also was sexually stimulated at least once from the girl sitting on his lap. The prosecution wanted to use details of the prior conviction to show that Leiser intended to get sexual gratification, an element of the offense, from his alleged acts against the two girls here. The trial court acknowledged that the evidence would be relevant for that narrow purpose, but excluded it as overly prejudicial because the other details of the crime were too dissimilar from the ■current charges — in particular, the age of the victims, the acts performed, and the duration of the abuse.
The trial court, however, allowed the prosecution witnesses to testify that they knew Leiser was a registered sex offender because it found that detail necessary to explain the context in which the allegations of the two assaults came to light. Speeifi-*694cally, the mother questioned her daughters about inappropriate touching only because she learned Leiser was on the sex-offender registry. Leiser’s trial counsel did not object but did express concern about how the disclosure would be worded. The trial court later instructed the jury to consider Leiser’s status as a sex offender only for context and not as a basis to conclude that Leiser is a bad guy and therefore guilty.
Leiser’s theory of the defense was that his gh’lfriend’s family did not like him from the beginning, and once they learned he was a registered sex offender, they influenced the girls into believing that Leiser had assaulted them. He did not testify, but his mother, sister, and the girls’ grandmother (who by that point was his wife) testified in his defense. His sister testified that at the time when Leiser supposedly assaulted the nine year old, she was outside with them and sitting on the bench where the girl said the incident occurred. She said that Leiser never sat there and denied that the alleged abuse ever happened. The girls’ grandmother and Leis-er’s mother (who lived with Leiser and the grandmother) each testified that they were home at the time of both alleged incidents and denied that Leiser touched the girls inappropriately.
After the jury verdict, Leiser was sentenced to 25 years’ confinement followed by 20 years’ extended supervision. Leiser filed a postconviction motion under § 974.02 of the Wisconsin statutes challenging his trial counsel’s effectiveness for failing to object to the admission of his status as a sex offender.1 The trial court denied the motion, and Leiser raised the issue again on direct appeal. The Wisconsin Court of Appeals found that trial counsel was not ineffective because the evidence was admissible, and the Wisconsin Supreme Court denied review.
After his conviction was final, Leiser filed another postconviction motion, this time under § 974.06, challenging other aspects of his trial counsel’s performance— namely, failing to call the girls’ father as a witness, failing to object to the state’s closing argument, and failing to object to Leiser’s absence from the court during a discussion about a question from the jury. Because Leiser was required to raise these challenges in his first postconviction petition but did not, he attempted to excuse his default by arguing that their omission was the result of postconviction counsel’s ineffectiveness. See State v. Escalonar-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157, 160-61 (1994); State ex rel. Rothenng v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136, 139-40 (1996). The Wisconsin Court of Appeals, though, found that Leiser’s postconviction counsel was not ineffective because Leiser’s underlying challenges to his trial counsel’s performance had no merit. The Wisconsin Supreme Court again denied review.
Leiser raised the same contentions in a federal habeas corpus petition. The district court likewise denied Leiser relief, concluding that the Wisconsin court had reasonably applied federal law to Leiser’s claims.
On appeal Leiser persists in his claims that his trial counsel and postconviction counsel were constitutionally ineffective. This court, however, has yet to decide whether Wisconsin prisoners have a sixth amendment right to effective assistance of postconvietion counsel before direct appeal. See Hiiusko v. Jenkins, 556 F.3d 633, 634-35 (7th Cir.2009). But because *695we conclude that the underlying challenges to trial counsel’s performance have no merit, we shall treat Leiser’s challenges as ones to trial counsel’s performance — challenges that the Wisconsin court analyzed in determining postconviction counsel’s effectiveness — and save for another day a foray into Wisconsin postconviction procedures. See Northern v. Boatwright, 594 F.3d 555, 559-61 (7th Cir.2010) (holding that appellate counsel was not ineffective for failing to raise weak claim of ineffective assistance of trial counsel).
A defendant has a right under the Sixth Amendment to effective assistance of counsel at trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the Wisconsin Court of Appeals’s decision as the last state court to reach the merits of Leiser’s petition. McAfee v. Thurmer, 589 F.3d 353, 354 (7th Cir.2009). For relief Leiser must show that the Wisconsin court’s decision is either (1) contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent or (2) based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 404-06, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court’s decision must be not only wrong but also objectively unreasonable. Bell v. Cone, 535 U.S.' 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir.2009). A decision is not objectively unreasonable unless it falls “well outside the boundaries of permissible differences of opinion.” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir.2009) (internal quotation marks omitted) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002)).
Leiser first argues that his trial counsel was ineffective because he did not object to the jury’s hearing that he was a registered sex offender. He asserts that his sex-offender status was not necessary for context and should have been prohibited as propensity evidence. Leiser insists that if his counsel had objected, the court would have excluded the evidence for the same reasons it excluded evidence of his prior conviction. Leiser contends that the repeated references to his status as a sex offender led the jury to convict him solely on this basis and rendered his trial fundamentally unfair.
The Wisconsin Court of Appeals determined on direct appeal that Leiser’s trial counsel was not ineffective for failing to object because the evidence was admissible. It noted, first, that Leiser’s sex-offender status was probably not “classic other acts evidence” but rather part of the “panorama of evidence” that explained how and why the crimes were reported. But, the appellate court continued, even if Leis-er’s status was other-acts evidence, it was properly admitted to show the context of the girls’ disclosures. The appellate court concluded that Leiser’s status as a sex offender required a different evidentiary analysis than that for his prior conviction. First, evidence of the conviction and the sex-offender status had been offered for different purposes — one to show Leiser’s intent to receive sexual gratification and the other to show context. Also, evidence of the conviction included details of prior sexual conduct, while evidence of Leiser’s status on the registry did not. And because the jury would not know why Leiser was on the registry, the court noted that “[t]he mere fact that Leiser was a registered sex offender would not appeal to the jury’s sympathies, arouse a sense of horror, or invoke an instinct to punish.” Plus, the appellate court added, the trial court gave a cautionary instruction that mitigated any prejudice. This evidence, therefore, was properly admitted.
*696Although the Wisconsin appellate court did not cite to Strickland, it applied the correct standard, namely whether “counsel’s representation was deficient and prejudicial.” See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (holding that citation to federal precedent unnecessary); Johnson v. Pollard, 559 F.3d 746, 752 & n. 6 (7th Cir.2009) (same). Therefore, we examine whether the Wisconsin court unreasonably determined that Leiser was not prejudiced because the evidence would have been admitted over an objection. When evidence is admissible, counsel is not ineffective for failing to object. Hough v. Anderson, 272 F.3d 878, 898 (7th Cir.2001). And so we review the state court’s admissibility ruling, keeping in mind that we are hesitant to second-guess state courts when they are interpreting state law. Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir.2004). Here, the trial court was careful to exclude reference to a prior conviction, limiting the state to mentioning only Leiser’s presence on the registry. Although Leiser is correct that a juror is likely to infer that he had been convicted of a sex crime, no Wisconsin or federal constitutional rule completely bars evidence of a prior sex crime in a sex-crime prosecution. See United States v. Julian, 427 F.3d 471, 487 (7th Cir.2005); State v. Hunt, 263 Wis.2d 1, 666 N.W.2d 771, 793-94 (2003). Wisconsin courts even give greater latitude to the prosecution when seeking to admit evidence of a prior sex crime in child sex abuse cases. State v. Hammer, 236 Wis.2d 686, 613 N.W.2d 629, 636-37 (2000); State v. Davidson, 236 Wis.2d 537, 613 N.W.2d 606, 615-19 (2000). We find that the appellate court thoroughly analyzed the controlling test for admissibility of other-acts evidence, see State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30, 32-33 (1998), and came to a reasonable conclusion.
Next, Leiser argues that his trial counsel should have called the girls’ father to testify. According to Leiser, the father would have provided critical information about the mother’s state of mind when she first asked her daughters about Leiser. Specifically, Leiser asserts that the father would have testified that the mother was hysterical when she questioned her daughters, bolstering his theory of defense that the mother’s excited state caused the girls to fabricate the assaults. In support, he points to a police report that he says conflicts with the trial testimony and asserts that the father’s testimony would have resolved the conflict in his favor.
In reviewing the denial of Leiser’s second postconviction petition, the Wisconsin Court of Appeals found no error. The court noted that even if the father had testified as Leiser supposed, the testimony would not have contradicted other evidence elicited at trial — the mother herself testified that she was upset when questioning her daughters about any possible sexual assault — and therefore the father’s testimony would not likely have changed the result of the trial. But more importantly, because Leiser offered no evidence about what the father’s testimony would have been (i.e., through an affidavit by the father), the court found that he failed to show that the father’s testimony would have helped him, thus dooming a claim that the lawyer was ineffective for not calling him to testify.
The Wisconsin appellate court’s insistence on evidence of how the father would have testified is not unreasonable. On collateral review Leiser bears the burden to prove what the father’s testimony would have been and how it would have helped him at trial. See Hardamon v. United States, 319 F.3d 943, 951 (7th Cir.2003); Wright v. Gramley, 125 F.3d 1038, 1044 (7th Cir.1997). He gave no such evidence to the state courts, nor did he provide any to the federal district court. His reliance *697on the police reports is misplaced. Even if they do conflict with trial testimony, the reports do not reveal how the father would have testified. Leiser’s continued speculation about the father’s testimony does not make the Wisconsin court’s decision unreasonable.
Next, Leiser argues that counsel was ineffective for failing to object to the prosecutor’s closing argument. Leiser believes that the prosecutor improperly disparaged his mother’s credibility by describing her testimony that she knew where her son’s hands were at the time of the alleged assaults as being a “patently absurd claim, an absurd claim.” He also asserts that the prosecutor improperly bolstered the girls’ testimony by describing their credibility as being “extremely high.”2 •
The Wisconsin Court of Appeals rejected this contention as well. It noted that counsel in closing argument had considerable latitude and concluded that the prosecutor’s remarks were all within permissible bounds: the prosecutor recounted the testimony of various witnesses, explained how the evidence supported the girls’ credibility, and urged the jury to give its verdict based on the evidence it heard. Additionally, the appellate court noted that the trial court properly instructed the jury that the lawyers’ closing arguments were not evidence, and the jury is presumed to follow that instruction. Because there was no error in the closing arguments, the Wisconsin court concluded that trial counsel was not ineffective for not raising the issue.
We agree with the Wisconsin court that the statements were not improper. Wisconsin law allows the prosecution to suggest inferences from the evidence. State v. Mayo, 734 N.W.2d 115, 126-27 (Wis. 2007); cf. United States v. Nunez, 532 F.3d 645, 654 (7th Cir.2008) (same for federal law). The phrases that Leiser identifies — when examined in the context of the entire argument — are based only on the evidence from trial; they did not infect the trial with unfairness.
Next, Leiser argues that counsel was ineffective for failing to object to his absence when the trial court and lawyers were discussing a request from the jury during deliberations. The note itself is not in the record, but the trial court later summarized its contents and the resolution on the record. The jury asked to rehear certain testimony of the mother and the eight year old concerning the timing of the disclosure. Leiser’s counsel and the prosecution both agreed that one requested passage should not be read back because it was too long; the court instructed the jurors to rely on their collective memory of the testimony. The parties disagreed on whether another passage should be read back, and the trial court sided with Leis-er’s attorney not to have it read back, again instructing the jury to rely on their collective memory. Leiser now contends that the passages the jury wanted read were favorable to him, and had he been present he would have requested that they be read back, which would have led to his acquittal.
The Wisconsin Court of Appeals analyzed this claim directly rather than through the rubric of ineffective assistance of counsel. It acknowledged that it was error for Leiser not to be present during the discussion about the jury’s note but concluded that the state had proven the error harmless beyond a reasonable doubt. *698The court reviewed the testimony of both the eight year old and the mother and found that neither favored Leiser. According to the court, the testimony was an explicit recounting by the girl of the alleged assault by Leiser, and a recounting by the mother of her inquiry to the child about an assault. In any event, the appellate court concluded that the trial court would probably not have allowed a rereading of the testimony given its express disinclination to have such a lengthy portion read back. Accordingly, it concluded that Leiser’s presence would not have affected the jury’s verdict.
Because the Wisconsin court reviewed the merits of this claim directly, we may review the Wisconsin court’s decision rather than conduct our own ineffective-assistance analysis. See Sturgeon v. Chandler, 552 F.3d 604, 611-12 (7th Cir.2009). We review whether the Wisconsin court’s harmless-error finding was reasonable. Johnson v. Acevedo, 572 F.3d 398 (7th Cir.2009). Ultimately, the Wisconsin court’s finding that the testimony was unfavorable to Leiser is enough to dispose of this claim because the finding shows that the jury would have convicted Leiser even after rehearing the testimony. That factual finding is presumed correct absent clear and convincing evidence otherwise. 28 U.S.C. § 2254(e)(1). Leiser argues that the omission of the jury note from the record leaves in question which passage of testimony the jury wanted read back. He contends that “the jury may have been looking at the inconsistency of the testimony from the mother and alleged victims, or if the father was present, or if the mother was crying when she got off the phone or if the other children were in the room when the mother asked if Leiser ever touched them, or any other part of the record.” (emphasis added) But this argument is not the sort of clear and convincing evidence that would warrant overturning the Wisconsin court’s finding that the testimony was not favorable to Leiser.
Accordingly, we AFFIRM the judgment.
. Wisconsin law provides a procedure for convicted defendants to raise instances of ineffective assistance of trial counsel before filing a direct appeal. See Wis Stat. §§ 809.30(2)(h), 974.02; State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Wis.Ct.App. 1979).
, In addition, he argues that the prosecutor’s repeated references to him being a sex offender improperly influenced the jury. But he did not raise this before the Wisconsin appellate court, and so it is defaulted. Stevens v. McBride, 489 F.3d 883, 893-94 (7th Cir. 2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478023/ | *699ORDER
In the sprawling expanses of the market for crack cocaine, Edgar Holder occupied a cozy corner in southern Wisconsin. His operation involved purchasing large quantities of crack in Chicago and retailing it in Janesville, Wisconsin. He recruited “runners” to sell the drugs in Wisconsin, and one of them was persuaded by investigators to help the government build a case against Holder. Holder was arrested affer making a series of controlled buys with individuals working at his direction. He pleaded guilty to one count of conspiring to possess with intent to distribute 50 or more grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 200 months’ imprisonment. Holder filed a notice of appeal, but his counsel, having concluded that the appeal is frivolous, seeks permission to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Since Holder did.not respond to his counsel’s Anders submission, we review only the issues raised in counsel’s brief, which is facially adequate. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009).
Counsel first considers whether Holder could challenge the reasonableness of his sentence. The court properly calculated the guidelines range and sentenced him to 200 months’ imprisonment, ten months below the bottom of his range. However, challenging a below-range sentence as unreasonably high is generally a futile endeavor, see United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and we find nothing in the record to suggest that Holder’s case presents an exception. ■ The court properly considered the factors in 18 U.S.C. § 3553(a), fixing its attention on Holder’s personal background and criminal history. See id. § 3553(a)(1). With six drug-related convictions, Holder, the court said, appeared to be “the epitome of a career offender.” And given his long pattern of criminal conduct, the court was not persuaded that his disadvantaged personal background warranted a further reduction. Accordingly, we agree with counsel that it would be frivolous to argue that Holder’s sentence was unreasonable.
Counsel also considers arguing that the district court denied Holder the right of a meaningful allocution in violation of Federal Rule of Criminal Procedure 32. He examines whether the court might have erred when it cut short the statement Holder had prepared after allowing him to read from it at length (it took up 16 pages in the sentencing transcript). Holder did not raise this objection at sentencing, so we would review it for plain error. United States v. Luepke, 495 F.3d 443, 448 (7th Cir.2007). Under Federal Rule of Criminal Procedure 32(i)(4), Holder had a right at sentencing to make a statement and present any information in mitigation of the sentence. Fed.R.Crim.P. 32(i)(4)(A)(ii); United States v. Alden, 527 F.3d 653, 663 (7th Cir.2008).
We agree with counsel that a Rule 32 challenge would be frivolous. The right to speak at allocution is not without limits on time or content. Alden, 527 F.3d at 663 (allocution is not the proper time to rear-gue the merits); United States v. Li, 115 F.3d 125, 133-34 (2d Cir.1997) (a fifteen-to twenty-minute allocution generally is enough to satisfy Rule 32); United States v. Eibler, 991 F.2d 1350, 1357 (7th Cir. 1993) (no right to in camera allocution); United States v. Aquilla, 976 F.2d 1044, 1054 (7th Cir.1992) (defendant does not have a right to address the court at any particular time during sentencing). The sentencing judge was patient with Holder, allowing him to speak for what amounted to 14 pages in the sentencing transcript before encouraging him to “wind it up.” Holder agreed, and then forged on for two *700additional transcript pages, stopping only to ask if he could read the last page. The court acted within its discretion in concluding that Holder had received a meaningful opportunity to present his case for a lenient sentence. See Alden, 527 F.Bd at 663; see also Luepke, 495 F.3d at 450 (“ ‘Rule 32[ ] does not purport to set out a script that the district courts must follow when advising defendants of their right of allocution. Instead, the substance of what occurred is what counts.’ ” (quoting United States v. Williams, 258 F.3d 669, 674 (7th Cir.2001))).
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/8478025/ | ORDER
Cornell Morgan was convicted by an Illinois jury of attempted first degree murder, 720 III. Comp. Stat. § 5/9-1, and aggravated battery with a firearm, 720 III. Comp. Stat. § 5/12-3, and sentenced to 22 years’ imprisonment. After exhausting his state-court remedies, Morgan petitioned for a writ of habeas corpus, see 28 U.S.C. § 2254, claiming that the state trial court violated his right to due process by failing to conduct a competency hearing and, re-latedly, that his trial counsel was ineffective for failing to investigate whether he was fit to stand trial. The district court denied the writ but certified both issues for appeal. We affirm.
We begin with the facts as presented to the state appellate court. See Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir.2009) (factual determinations made by a state court are presumed correct unless later rebutted by clear and convincing evidence). At a hearing before jury selection on Morgan’s competency to stand trial, the government and the defense stipulated to the findings of a psychiatric evaluation prepared by Dr. Roni Seltzberg. Dr. Seltzberg had examined Morgan six months earlier and found him fit to stand trial. Dr. Seltzberg reported that although Morgan had benefitted from certain psychotropic drugs, he likely would be competent to proceed without the medication. According to the evaluation, Morgan understood the charges against him, and the drugs did not seem to cloud his ability to think. Corroborating the evaluation were the statements of Morgan’s trial counsel, who noted that Morgan had assisted him “very well” during the pretrial stages and concluded that he “absolutely” had the capacity to continue to participate as the trial progressed.
After he was convicted, Morgan moved for a new trial, arguing that the state trial court relied too heavily on the psychiatric evaluation, which he claimed failed to reflect deterioration in his mental condition during the subsequent six months. For support he submitted two grievances he had filed during that period in which he complained that he was depressed, that he could not sleep, that his medication was not working, and that he was having thoughts about killing himself and others. He noted in his motion that on the evening of his competency hearing, he had been admitted to the jail’s hospital and had his medication adjusted. The trial court denied the motion.
On direct appeal the state appellate court affirmed Morgan’s conviction. The court was not persuaded that Morgan’s grievances and the adjusted dosage in his medication undermined the findings of Dr. Seltzberg. Even if they had, the court reasoned, the trial court had supplied additional support for its fitness finding, including the assurance from defense counsel that Morgan was prepared to assist in his defense, and the court’s own observations that Morgan appeared to be cooperative with his attorney, responsive to questions, and actively involved at each stage of *702the proceeding. The Supreme Court of Illinois declined review.
Morgan then filed this petition for a writ of habeas corpus, arguing (1) that he was denied a formal fitness hearing in violation of his due-process rights; and (2) that his trial counsel was ineffective because he stipulated to the findings of a stale evaluation and failed to investigate whether Morgan was competent to stand trial. The district court denied the petition. The court rejected the due-process claim because it found no unreasonable or inconsistent application of federal law. The court found the ineffective-assistance claim procedurally defaulted because Morgan failed to raise it in his petition to the Supreme Court of Illinois.
This action is governed by the Antiter-rorism and Effective Death Penalty Act. 28 U.S.C. § 2254(d). Morgan seeks relief from a state conviction that was reviewed on the merits by a state court, and we will grant the petition only if the state appellate court’s decision was contrary to clearly established Supreme Court precedent, called for an unreasonable application of such precedent, or was based on an unreasonable determination of the facts in light of the evidence presented to the trial court. See id.; Lucas v. Montgomery, 583 F.3d 1028,1030 (7th Cir.2009).
We turn first to Morgan’s due-process claim. We understand Morgan to argue that the state appellate court violated his right to a reasonable opportunity to show that he was not competent to stand trial. He reasserts that the trial court conducted a cursory hearing and improperly relied on the stipulated findings of Dr. Seltzberg; a deeper inquiry, he insists, would have disclosed that his mental health had declined, and that on the first day of trial he was without sleep and unaccustomed to changes in his medication.
A defendant is fit to stand trial if he understands the proceedings against him and is capable of consulting with his lawyer in preparing his defense. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). Illinois codified this standard in 725 III. Comp. Stat. § 5/104-11, which provides that once a defendant presents a “bona fide doubt” about his fitness, the burden shifts to the State to prove fitness by a preponderance of the evidence. The Supreme Court has ruled that the Illinois standard adequately protects the due-process rights of criminal defendants. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
Applying the bona fide doubt standard, the state appellate court concluded that the trial court had no substantial reason to doubt Morgan’s ability — both before and during trial — to understand the proceedings and consult with his attorney in preparing his defense. The court relied primarily on three sources: Dr. Seltzberg’s evaluation concluding that Morgan was competent to proceed with or without medication; statements from Morgan’s trial counsel suggesting that Morgan had assisted, and could continue to assist, in the preparation of his defense; and the trial court’s observation that Morgan did just that — he regularly consulted with his lawyer during trial and remained actively engaged at each stage of the proceeding. The court was unpersuaded by Morgan’s argument that the psychiatric evaluation failed to reflect deterioration in his mental condition, and reasonably so: the evaluation formed only part of the basis for the pretrial finding. The trial court also relied on unequivocal representations from defense counsel suggesting that Morgan was competent to proceed. In any event, neither the evidence of his mental disturbances nor the change in his dosage was *703sufficient, by itself, to raise a bona fide doubt about his fitness. See People v. Eddmonds, 143 U1.2d 501, 161 Ill.Dee. 306, 578 N.E.2d 952, 960 (1991) (that petitioner suffered from a mental disturbance did not create' a presumption that he was unfit); see also Rever v. Acevedo, 590 F.3d 533, 538 (7th Cir.2010) (adjustment in petitioner’s medication was not sufficient to call his competency into question); People v. Steppan, 322 Ill.App.3d 620, 255 IlLDec. 938, 751 N.E.2d 32, 39 (2001).
Having resolved Morgan’s due-process claim, we can quickly dispose of the ancillary argument that his lawyer was ineffective for failing to further investigate his fitness for trial. As the state appellate court properly concluded, if Morgan did not raise a bona fide doubt about his fitness, he could not show a reasonable probability that further investigation would have changed the outcome of the proceeding. See Sturgeon v. Chandler, 5§2 F.3d 604, 612 (7th Cir.2009). That aside, we agree with the district court’s conclusion that Morgan procedurally defaulted this claim when he failed to raise it before the state supreme court. To avoid default, a habeas petitioner must present the federal issue at each tier of state-court review. See 28 U.S.C. § 2254(b)(1)(A); Stevens v. McBride, 489 F.3d 883, 893-94 (7th Cir. 2007). Morgan attributes his failure to do so to his mental condition. But to show good cause for the default, Morgan would have to identify a factor external to his defense that precluded him from raising the claim in his petition to the Supreme Court of Illinois. Harris v. McAdorrj, 334 F.3d 665, 668 (7th Cir.2003); Spreitzer v. Schomig, 219 F.3d 639, 647-48 (7th Cir. 2000). Mental illness is not such a factor. Hams, 334 F.3d at 668-69.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478027/ | ORDER
After a bench trial, Randy Gellinger was found guilty of possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and he was sentenced to the statutory maximum of 120 months in prison. See id. § 2252(b)(2). Gellinger appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivo-lous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gellinger opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Gellinger’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
A task force investigating child exploitation crimes told federal and state officers that Gellinger had bought memberships to two known child pornography websites. The officers went to question Gellinger at his parents’ home; there, they read him his Miranda rights and obtained a written waiver-of-rights form on which he noted that he was not in custody. Gellinger admitted to having purchased membership in a child-pornography website and to having child pornography on his computer. *707After Gellinger consented orally and in writing to a search of his computer, the officers checked the computer and promptly found child pornography. He was arrested a week later, again given Miranda warnings, confronted with several of the files found on his computer, and he admitted that the files were his.
Gellinger moved to suppress evidence obtained during the search. The district court denied the motion because Gellinger had signed written forms consenting to the searches, and there was no persuasive reason to invalidate those consents. The case proceeded to a bench trial, upon which he was convicted of knowingly possessing 18 images of child pornography.
In his Anders submission, counsel first considers whether Gellinger could challenge the denial of his motion to suppress his statements to the police and the evidence recovered from his parents’ home. Counsel asks whether the statements or consents that Gellinger gave at his parents’ home were in any way involuntary, procured by threat or intimidation.
We agree with counsel that it would be frivolous to raise this challenge on appeal. First, as the district court found, Gellinger was not in custody at the time of questioning. Whether a suspect is in custody turns on whether, based on the totality of the circumstances, a reasonable person would believe that he was free to leave. United States v. Thompson, 496 F.3d 807, 810 (7th Cir.2007). Here the court found that the agents had been invited into the home, Gellinger had agreed to be questioned, and the officers did not physically restrain- or intimidate Gellinger in any manner. And even if the interview was deemed custodial, the court continued, the officers secured a knowing and voluntary waiver when Gellinger signed a written waiver of rights. Finally, the court disbelieved Gellinger’s denials that he understood this waiver, and neither counsel nor Gellinger points to anything in the record that would lead us to disturb the court’s finding. See United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir.2009); United States v. Stewart, 536 F.3d 714, 720 (7th Cir.2008).
Counsel also considers whether Gelling-er could argue that there was insufficient evidence to support a finding of guilt. In reviewing a case for sufficiency of the evidence, we would view the evidence in the light most favorable to the government and uphold a conviction unless there is no evidence in the record from which a fact-finder could have found the defendant guilty. See United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir.2009); United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008). Gellinger would face a “nearly insurmountable” hurdle in showing that the evidence was insufficient to support a conviction, and we would not second-guess the fact-finder’s decisions regarding the weight of the evidence. United States v. Oros, 578 F.3d 703, 710 (7th Cir.2009); United States v. Angle, 234 F.3d 326, 339 (7th Cir.2000). Based on Gellinger’s admissions to the police and the numerous images recovered from his computer files, we agree with counsel that the evidence was more than sufficient for the judge to find Gellinger guilty beyond a reasonable doubt. See United States v. Muick, 167 F.3d 1162, 1166 (7th Cir.1999) (recounting evidence deemed sufficient to uphold convictions on child pornography charges).
Finally, counsel considers whether Gel-linger could challenge his sentence. We agree that any such challenge would be frivolous. The district court correctly calculated Gellinger’s recommended guidelines range at 151-188 months, but noted that this range exceeded the 120-month statutory maximum under 18 U.S.C. § 2252(b)(2)-which became the recommended sentence. See U.S.S.G. *708§ 5G1.1(a). We would presume that a sentence falling within the properly calculated guidelines range is reasonable. See Rita v. United States, 551 U.S. 338, 345-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). The transcript from Gellinger’s sentencing hearing shows that the court appropriately considered the required factors under 18 U.S.C. § 3553(a), taking into account the extremely exploitative nature of child pornography; Gellinger’s significant criminal history of misdemeanor offenses, including additional foreboding incidents in the preceding month; and the need to deter others who might be thinking about collecting child pornography.
In his Rule 51(b) response, Gellinger broadly asserts that he received “ineffective counseling.” A challenge to the adequacy of counsel’s performance, however, is best pursued on collateral review so that a more complete record can be made. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Wilson, 481 F.3d 475, 485 (7th Cir.2007) Gellinger also claims that the court and the government were biased because of the nature of his crime. But Gellinger points to nothing in the record that would suggest inappropriate bias, and we can find none.
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/8478003/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Darren Taylor appeals the district court’s order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find the district court did not abuse its discretion in denying the motion. See United States v. Goines, 357 F.3d 469, 478 (4th Cir.2004) (motion under § 3582(c) “is subject to the discretion of the district court”); United States v. Legree, 205 F.3d 724, 727 (4th *475Cir.2000). The district court took into account the appropriate factors and did not base its decision on an erroneous legal or factual premise. See DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir.2008) (defining abuse of discretion). Thus, we affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478005/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Antonio Reese appeals the district court’s order denying Reese’s 18 U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Reese, No. 3:03-cr-00729-CMC-1 (D.S.C. Oct. 6, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478007/ | PER CURIAM: *
*504Ivan Ulises Galarza-Ramos (Galarza) appeals the 70-month sentence imposed following his guilty plea conviction for illegal reentry following deportation. He contends that the sentence was greater than necessary to satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and was therefore substantively unreasonable. Specifically, Galarza argues that the guidelines range was too severe because United States Sentencing Guideline § 2L1.2 was not empirically based and gave excessive weight to his prior robbery conviction. He contends that the guidelines range overstated the seriousness of his nonviolent reentry offense and failed to account for his motive for reentering the United States. Galarza also argues that this court should not afford a presumption of reasonableness to a sentence imposed under § 2L1.2; however, he recognizes that United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.), cert. denied, — U.S.-, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009), forecloses this argument.
This court reviews the “substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, — U.S.-, 129 S.Ct. 328, 172 L.Ed.2d 236 (2008).
This court has consistently rejected Ga-larza’s “empirical data” argument. See United States v. Duarte, 569 F.3d 528, 529-30 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009). The district court considered Ga-larza’s request for a downward variance, and it ultimately determined that a sentence at the bottom of the applicable guidelines range was appropriate based on the circumstances of the case and the § 3553(a) factors. Galarza’s assertions regarding § 2L1.2’s lack of an empirical basis, the weight given his prior robbery conviction, the nonviolent nature of his offense, and his motive for reentering the United States are insufficient to rebut the presumption of reasonableness. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008). As Galarza has not demonstrated that the district court’s imposition of a sentence at the bottom of the guidelines range was an abuse of discretion, the district court’s judgment is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be *504published 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/8478009/ | PER CURIAM: *
The Federal Public Defender appointed to represent Jose Martin Ramirez-De Leon (Ramirez) 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 has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous is*506sue 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/8478010/ | PER CURIAM: *
The attorney appointed to represent Ev-erardo Rodriguez-Gomez (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 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/8478012/ | ORDER
Maria Porch worked for the United States Postal Service for over 20 years before she was suspended in 2005. In this lawsuit under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-7961, Porch claims that the Postal Service disciplined her because of a disability and to retaliate for complaining about discrimination in the workplace. The district court granted summary judgment for the Postal Service. We affirm that decision.
The following account, except where noted, was undisputed for purposes of summary judgment. Porch suffers from depression, a condition that kept her away from work between 1998 and 2001. She also has been injured on the job, twice by her count. The Postal Service acknowledges that Porch was injured in 2002 when a container holding mail fell on her. When Porch returned to work, the Postal Service accommodated her residual shoulder and arm pain by reassigning her from a position sorting mail to a light-duty job that allowed her to sit at a table repairing torn items of mail at her own pace. Porch was still doing this job on January 27, 2005, when she reportedly suffered another injury at work.
On that day Porch told her supervisor that the plastic cover on a toilet-paper dispenser in a post office restroom had popped open and struck her in the head and shoulder when she tried to pull tissues from the roll. The supervisor quickly inspected the dispenser and found it to be intact. She also summoned an in-house doctor, who noted that Porch was complaining of a headache and numbness in her ear but showed no visible signs of bumps, bruises, or swelling. The doctor concluded that Porch’s headache was not related to the alleged incident.
Porch, though, did not go to work for more than two weeks. She made multiple visits to her personal physician, Dr. Jacob Salomon, and complained of severe headaches and arm pain that she attributed to the dispenser incident. Dr. Salomon gave her several notes excusing her from work. In one note he opined that Porch was “totally incapacitated” and unable to work from January 29 to February 15. That note prompted management to require that Porch again see the in-house doctor. Porch told the doctor that her head and arm pain had improved with the use of over-the-counter pain relievers. Still, she said, she was suffering from headaches and depression that rendered her unable to work. The anxiety was so great, she added, that she was unable to drive and was spending her days resting at home.
Meanwhile, Porch had filed with the Department of Labor a claim for workers’ compensation, which she supported with more notes from Dr. Salomon saying she was “totally incapacitated” and unable to work because of the dispenser incident. Porch’s claim was approved and she remained on paid leave until February 16, when officially she returned to her job. During the next two weeks, however, Porch worked only three full days. Every other day she either reported to work late, left early for appointments, or took leave authorized by her claim for workers’ compensation. Each time she would produce more notes from Dr. Salomon explaining that her absences or late arrivals were attributed to the dispenser incident. The doctor said nothing about depression.
What Porch did not know was that postal inspectors had her under surveillance while she was on paid leave and receiving workers’ compensation. During this time Porch was seen driving, shop*671ping, spending hours at a beauty salon, and carrying bags of groceries and trays of drinks with her injured arm. In early March an inspector questioned Porch about these activities. Porch said she remembered having severe headaches each day but otherwise could not recall what she had done while on leave. When shown videos of herself, however, Porch changed direction and explained that she was able to engage in normal activities away from the post office because it was stress from that job which triggered her disabling anxiety and depression. When asked if she had continued attending college courses at night while on leave, Porch said she had not gone since the dispenser incident, but attendance records later obtained by subpoena showed that Porch had indeed attended several classes during this time.
Based on the findings in the postal inspectors’ report, Porch was placed on emergency suspension for submitting a fraudulent claim for workers’ compensation. The report concluded that, while on leave, Porch was performing “activities inconsistent with her claimed medical restrictions.” Several weeks later Porch was notified that she was being discharged as of May 14, 2005, for her fraudulent behavior. The Postal Service had concluded from its surveillance that Porch had not been “totally incapacitated” from the dispenser incident and instead could have performed her light-duty job.
In response Porch first filed a union grievance challenging her suspension and termination. The Postal Service settled part of the grievance by rescinding the emergency suspension and paying Porch through May 14. The Postal Service also unilaterally reduced her termination to a long-term suspension, lasting from May 14, 2005 through February 12, 2006. Nonetheless, Porch pressed her claim and a year later an arbitrator found that the Postal Service had just cause for disciplining Porch for submitting a fraudulent claim. But the arbitrator’s decision did not entirely resolve the matter because, in the interim, Porch had filed an internal administrative complaint alleging, as relevant here, that her suspension was because of a disability — depression—and in retaliation for prior complaints about discrimination.
When her administrative claim did not succeed, Porch filed this action making the same allegations and seeking upwards of $10 million. In granting summary judgment on the claim of disability discrimination, the district court reasoned that Porch’s depression was not disabling within the meaning of the Rehabilitation Act because there was no evidence that Porch’s condition had substantially limited any major life activity. As for Porch’s retaliation claim, the court concluded that Porch lacked evidence from which a jury reasonably could find a causal connection between her termination and her unspecified prior complaints about discrimination. The court also recognized that Porch had not disputed the Postal Service’s explanation that she was disciplined because of her fraud.
We review a grant of summary judgment de novo. Creios v. City of Mt. Vernon, 567 F.3d 860, 864 (7th Cir.2009). To defeat a motion for summary judgment, the opponent must introduce evidence demonstrating a genuine issue for trial. Anders v. Waste Mgmt. of Wis., Inc., 463 F.3d 670, 675 (7th Cir.2006). In reviewing the record we draw all reasonable inferences in favor of the nonmoving party. Schuster v. Lucent Techs., Inc., 327 F.3d 569, 573 (7th Cir.2003).
We note at the outset that the undisputed evidence shows that Porch was disciplined for committing fraud, not because of her alleged disability or any perception *672that she was disabled. The evidence of her fraud is alone enough for us to affirm the district court’s grant of summary judgment to the Postal Service on both the discrimination and retaliation claims because it demonstrates that the Postal Service had a legitimate, non-discriminatory reason for disciplining Porch, and Porch has no direct evidence of an unlawful motive or evidence that the Postal Service’s stated reason was a pretext to mask an unlawful motive. In fact, in light of the undisputed evidence showing Porch’s fraud, any suggestion of a pretext would be highly ironic. We also reach the same result through analysis of the elements necessary to establish claims of discrimination and retaliation under the Rehabilitation Act.
To establish disability discrimination, a plaintiff must establish that she (1) is disabled under the statutory definition, (2) is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation, and (3) suffered an adverse employment action because of her disability. Garg v. Potter, 521 F.3d 731, 736 (7th Cir.2008); Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir.2005). Only the first element was disputed by the Postal Service. Porch argued, and repeats here, that her depression is a qualifying disability because, she asserts, her job at the post office exacerbates her depression and in turn prevents her from carrying out her job duties.
Having an impairment is not enough. Depression, depending on its severity, may or may not constitute a disability. Cassi-my v. Board of Education of Rockford Public Schools, 461 F.3d 932, 936 (7th Cir.2006). For Porch’s depression to meet the statutory definition of a qualifying disability, the condition must substantially limit at least one major life activity, id. at 936; Scheerer v. Potter, 443 F.3d 916, 918-19 (7th Cir.2006), or at least be perceived by the employer as substantially limiting a major life activity, see School Bd. of Nassau County v. Arline, 480 U.S. 273, 282-83, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); Garg, 521 F.3d at 736. Porch has never contended that the Postal Service perceived her as being disabled; quite the contrary. Thus the relevant inquiry is whether a jury reasonably could conclude from this record that Porch’s depression limits a major life activity.
Major life activities are those of “central importance to daily life,” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and include walking, eating, sleeping, learning, and working, 28 C.F.R. § 41.31(b)(2); 45 C.F.R. § 84.3(j)(2)(ii); Bragdon v. Abbott, 524 U.S. 624, 638-39, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Hancock v. Potter, 531 F.3d 474, 479 (7th Cir.2008). The focus here is on the activity of working.
A person is substantially limited in an activity if she cannot perform it or, in comparison to an average person in the general population, is “significantly restricted as to the condition, manner or duration” under which she can perform that activity. 29 C.F.R. § 1630.2(j)(l); Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 781 (7th Cir.2007). When working is the major life activity at issue, it is not enough for a plaintiff to show that her impairment keeps her from doing her present job; an impairment does not substantially limit the major life activity of working unless the condition prevents the plaintiff from performing “a broad range of jobs.” 29 C.F.R. § 1630.2(j)(3)(i); see Toyota Motor Mfg., 534 U.S. at 200, 122 S.Ct. 681; Squibb, 497 F.3d at 781-82; Cassimy, 461 F.3d at 936; Peters v. City of Mauston, 311 F.3d 835, 843 (7th Cir.2002).
And that is where Porch’s claim ends. Her contention is that just going to the post office triggered anxiety and stress *673that depressed her to the point that she could not do her job. For proof, she points only to a statement from Dr. Salo-mon, who described Porch as “totally incapacitated.” But the doctor defined “total incapacity” to mean “the inability of rendering any useful service for the United States Postal Service,” and of course that is not the standard. Even if Dr. Salomon was correct in saying that Porch could not continue repairing torn mail at a post office, Porch’s evidence still does nothing more than demonstrate an inability to perform one particular job. That is not enough to render her substantially limited in the major life activity of working. See Squibb, 497 F.3d at 782; Cassimy, 461 F.3d at 936-37; Peters, 311 F.3d at 843. We agree with the district court that the Postal Service was entitled to summary judgment on Porch’s discrimination claim.
As for the retaliation claim, see 29 U.S.C. § 794(d); 42 U.S.C. § 12203, Porch argues that the district court erred in concluding that her evidence, which was limited to the inference arising from the timing of the disciplinary action relative to her internal complaints about discrimination, was insufficient for a jury to find retaliation. On this claim Porch would have to establish that (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) there was a causal connection between the two events. Burks v. Wisconsin Dep’t of Tramp., 464 F.3d 744, 758 (7th Cir.2006). Porch’s suspension and her administrative complaints to the Equal Employment Opportunity office within the Postal Service satisfy the first two elements, so the central question is whether she offered enough evidence to allow a reasonable jury to find the necessary causal connection.
The Postal Service offered undisputed evidence that Porch filed a fraudulent claim for workers’ compensation. The Postal Service also introduced evidence that Porch’s fraud motivated its decision to discipline her. In fact, in her response to the motion for summary judgment, Porch conceded that the manager who made the initial decision to fire her acted on the basis of “what he believed to have been workers’ compensation fraud,” so it is difficult to see how Porch could have a claim for retaliation on this record. She had no direct evidence of a causal link between the adverse employment action and her protected activity, so she was left to rely on timing alone. Porch points out that she filed two administrative complaints in 2005 and was initially discharged in May of that year. Yet the second of those complaints was submitted six days after Porch’s termination date, and so it could not have been a motivation for the discipline. The other administrative complaint had been filed in January, and it did allege disability discrimination. But temporal proximity between protected activity and an adverse action rarely will suffice alone to create a triable issue, Amrhein v. Health Care Serv. Corp., 546 F.3d 854, 859 (7th Cir. 2008); Moser v. Ind. Dept, of Corr., 406 F.3d 895, 905 (7th Cir.2005); Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.2002), and certainly not here, where we have undisputed evidence that Porch was disciplined for fraud. Since Porch presented no other evidence of a retaliatory motive to shore up this weak inference of suspicious timing, summary judgment was also proper on this claim.
The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478014/ | ORDER
In November 2006, Alex, Mary and Jennie Woods filed a lawsuit under 42 U.S.C. § 1983 claiming that the City of Rockford, Illinois, had deprived them of due process by declining to renew, without a predepri-vation hearing, the liquor license for their nightclub. They also claimed that the City had denied them equal protection by imposing racially motivated restrictions that hampered their use of the license before it was lost. The district court dismissed the case at summary judgment after accepting the City’s contention that both claims were barred by the applicable statute of limitations. We affirm.
The evidence at summary judgment, viewed in the light most favorable to the plaintiffs, see Smith v. Hope School, 560 F.3d 694, 699 (7th Cir.2009), establishes the following. From 1995 to 2004, the plaintiffs operated Lamont’s Restaurant and Lounge, a Rockford nightclub that catered primarily to African Americans. Lamont’s was incorporated but did not have its own liquor license. Instead, Mary and Jennie Woods had acquired a liquor license in their own names and sold liquor at Lamont’s under the authority of that license. Until 2004, those two plaintiffs, themselves African American, were permitted to renew their license despite ongoing disputes with the City concerning the operation of Lamont’s. By the tune they lost their liquor license for good, the two license holders had received citations due to the presence of minors on the premises, the sale of alcohol to minors and violence *676at the establishment. The license had also been suspended for 14 days in 2003 for the sale of alcohol to a minor. On at least one occasion, Mary and Jennie Woods had consented to restrictions imposed by the City on Lamont’s operations, apparently as a condition to permit the continued use of the liquor license.
On April 28, 2004, Jennifer Cacciapaglia, an assistant city attorney, wrote Mary and Jennie Woods and informed them that their liquor license would expire at 11:59 p.m. on Friday, April 30, 2004, and would not be renewed. The recipients, who already had applied for renewal and paid the renewal fee, were ordered to cease selling liquor at Lamont’s at the stated time. They were also told that they could contest the decision and request a hearing by notifying the City in writing within 10 days. The City asserts that its action was taken in response to a history of violence at Lamont’s, as evidenced by more than 90 calls to police during a relatively short period, culminating in a shooting in April 2004.
Police showed up to enforce the nonre-newal, and Lamont’s did not operate again after April 30. The evidence in the record is sparse concerning the subsequent communications between the plaintiffs and the City, but the parties continued to contemplate a “liquor hearing” for several months. On August 25, 2004, Ms. Caccia-paglia wrote counsel for the plaintiffs advising them that a hearing had been scheduled for December 9, 2004. In August 2004, the City also offered to revive the license on the condition that the plaintiffs sell Lamont’s. The plaintiffs did not appear at the December hearing, nor did counsel appear on them behalf. On December 14, 2004, Ms. Cacciapaglia wrote Mary and Jennie Woods advising that she perceived no further need for a hearing.
What happened between the parties after December 14 is not disclosed by the record. Decisions of a local liquor commissioner (in Rockford the mayor serves in that capacity) may be appealed to the Illinois Liquor Control Commission, but Mary and Jennie Woods did not appeal to the Commission. Instead, in November 2005, the corporation filed a lawsuit raising the same claims asserted by the plaintiffs in this litigation. Lamont’s Rest. & Lounge, Inc. v. City of Rockford, No. 05-CV-50225 (N.D.I11. Aug. 30, 2006). None of the plaintiffs joined that suit individually. The suit was filed by counsel on behalf of the corporation, but counsel withdrew early in the litigation, and despite multiple continuances to permit the corporation to find a replacement, no other attorney made an appearance. The district court, after denying a motion from these plaintiffs to join the corporation’s suit as co-plaintiffs, dismissed the corporation’s lawsuit on August 30, 2006, for want of prosecution.
Meanwhile, on August 7, 2006, the plaintiffs had taken the initial steps to commence this lawsuit. They tendered a complaint naming themselves as plaintiffs, filed an application to proceed in forma pauperis and moved for appointment of counsel. The district court denied their request for pauper status on the same day that the corporation’s suit was dismissed. The plaintiffs then waited two months before paying the filing fee and thus their complaint was not filed until November 7, 2006. The corporation is not a party to the second lawsuit, but the plaintiffs’ complaint is nearly identical to the corporation’s.
After discovery, the plaintiffs moved for summary judgment. The City filed a cross-motion for summary judgment. In its motion, the City argued in part that the plaintiffs’ claims were barred by the two-year statute of limitations that governs § 1983 suits in Illinois. See 735 ILCS 5/13-202; Wilson v. Garcia, 471 U.S. 261, *677276, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Savory v. Lyons, 469 F.3d 667, 672 (7th Cir.2006). According to the City, the injuries alleged by the plaintiffs occurred, at the latest, on May 1, 2004, the day that Lamont’s was first prohibited from selling liquor. The district court agreed and granted summary judgment for the City.
As an initial matter, the City has argued, both in the district court and on appeal, that Alex Woods lacks standing in this matter. The City correctly notes, in order to have standing, Mr. Woods must have a cognizable injury that is causally connected to the alleged conduct — here a constitutional violation — and is amenable to redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Sierra Club v. Franklin County Power of III., L.L.C., 546 F.3d 918, 925 (7th Cir.2008). Mr. Woods meets this threshold only with respect to the equal protection claim. He has an ownership interest in the corporation and apparently managed Lamont’s, but the liquor license was issued not to Mr. Woods or to the corporation; rather, it was issued to Mr. Woods’s wife and mother, Mary and Jennie Woods, as individuals. Mr. Woods asserts that he personally applied for the renewals, but this representation is not supported in the record and, in any event, does not alter the fact that the license was not in his name. Mr. Woods cannot seek relief for the alleged due process violation on behalf of his wife or mother. See Barber v. Overton, 496 F.3d 449, 457-58 (6th Cir.2007j; Siebert v. Severino, 256 F.3d 648, 659 n. 8 (7th Cir.2001). On the other hand, the plaintiffs’ equal protection claim is not moored only to the license but to the City’s alleged pattern of conduct toward Lamont’s, in which Mr. Woods played an important role. Therefore, Mr. Woods has standing to press that claim.
On the merits, the plaintiffs principally argue that their claims were timely because they did not accrue until December 14, 2004, when Ms. Cacciapaglia notified them that a hearing would not be conducted. The City responds that the plaintiffs’ claims accrued when the liquor license was not renewed at the end of April 2004, a date more than two years before they filed this suit.
As a threshold matter, the plaintiffs arguably waived their theory about the date of accrual because they did not raise the argument at summary judgment. See Domka v. Portage County, Wis., 523 F.3d 776, 783 (7th Cir.2008); Econ. Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 720 (7th Cir.2008). In the disti’ict court, the plaintiffs relied on their theory that the corporation’s November 2005 lawsuit was, in their view, dismissed only temporarily and was enough to bridge the gap between the date of accrual asserted by the City and their November 2006 lawsuit. Although they did not cite it, the plaintiffs apparently relied on the Illinois savings statute, see 735 ILCS 5/13-217, which permits plaintiffs to refile an action within one year of a voluntary dismissal, which Illinois defines to include dismissals for lack of prosecution. See S.C. Vaughan Oil Co. v. Caldwell, Troutt, & Alexander, 181 I11.2d 489, 230 Ill.Dec. 209, 693 N.E.2d 338, 342 (1998). The district court correctly held that the corporation’s lawsuit, to which the plaintiffs were not parties and the dismiss- . al of which the corporation did not appeal, did not toll the statute of limitations for their individual claims.
Nevertheless, we may address the plaintiffs’ new accrual theory because the City has not asserted waiver in its brief before us. Indeed, it has briefed the statute-of-limitations argument without mentioning the plaintiffs’ argument in favor of a December 2004 accrual. See Riemer v. *678III Dep’t of Trans., 148 F.3d 800, 805 n. 4 (7th Cir.1998).
The district court was correct to find the plaintiffs’ claims time-barred. A § 1983 claim accrues when a plaintiff knows or should know that his constitutional rights have been violated. See Savory, 469 F.3d at 672; Kelly v. City of Chi, 4 F.3d 509, 511 (7th Cir.1993). Although the plaintiffs now argue that December 14, 2004 — the date the City first announced that it no longer saw a need for the contemplated liquor hearing — was the date their claims accrued, May 1 bears all the markers of the date of accrual. Under Illinois law, a municipal liquor authority may not revoke or decline to renew a liquor license without giving the licensee three days’ written notice and the opportunity to appear and defend. 235 ILCS 5/7-5. We have interpreted this directive to grant a licensee a due process right to a hearing prior to the loss of a liquor license, including a loss by nonrenewal. See Pro’s Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th' Cir.2009); Kelly, 4 F.3d at 511; Reed v. Shorewood, 704 F.2d 943, 949 (7th Cir.1983). Accordingly, on May 1, Mary and Jennie Woods knew that the City had failed to renew their license in violation of their right to due process. Moreover, the harm attendant to the nonrenewal began to accrue immediately on May 1 when the City raided Lamont’s and shut it down. The discussions between the license holders and the City, after May 1, may be characterized as the City’s attempt at post-deprivation process or as an offer to consider reinstating the license. The license was finally revoked on May 1 and the alleged due process violation had been committed.
Similarly, the plaintiffs’ equal protection claim concerns events before May 1 that culminate in the nonrenewal of the liquor license. The plaintiffs primarily point to what they contend was the City’s “racial profiling” of themselves and them clientele. They focus on several nuisance citations, the City’s February 2003 order imposing dress-code limitations on Lamont’s, including rules apparently meant to discourage gang presence (including gang colors), and on their liquor license problems to support this claim. All of these actions occurred before the license was lost in May 2004, and these claims therefore accrued, at the latest, when Lamont’s closed.
The judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478016/ | ORDER
Alexander Serrano sold drugs to an informant who approached him wanting to buy crack cocaine. He pleaded guilty to a single count of distributing a controlled substance, 21U.S.C. § 841(a)(1), but reserved the right to argue at sentencing that the substance, although cocaine, was not crack. The sentencing court found that it was crack and, because it weighed at least 50 grams, imposed the 10-year statutory minimum, see id. § 841(b)(l)(A)(iii).
Serrano filed a notice of appeal, but his appointed lawyers have concluded that the case is frivolous and move to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Serrano opposes counsel’s motion. See CIR. R. 51(b). We limit our review to the potential issues addressed in counsel’s facially adequate brief and in Serrano’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
The district court concluded, by a preponderance of the evidence, that the cocaine Serrano sold was crack, not powder or some other form of cocaine base. The testimony of two forensic chemists supports that finding. The government also called FBI special agent Michael Culloton, who opined that recordings of conversations Serrano had with the informant and others established that he “cooked” powder cocaine into crack for the informant. Because the district court found that the substance was crack, the guidelines provided for a base offense level of 30. U.S.S.G. § 2D1.1(c)(5). After a 3-level credit for acceptance of responsibility, id. § 3E1.1, the imprisonment range would have been 78 to 97 months if not for the statutory minimum.
Serrano has told appellate counsel that he does not want his guilty plea vacated, and so counsel appropriately refrain from discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). That leaves only the sentence. In their Anders submission, counsel first consider whether Serrano could argue that the district court errone*687ously admitted Agent Culloton’s testimony and whether the evidence was sufficient to prove that the substance he distributed was crack. We agree that these contentions would be frivolous. We have held that drug type may be proved through testimony from people familiar with the drug, including law enforcement officers. E.g., United States v. Padilla, 520 F.3d 766, 771 (7th Cir.2008); United States v. Linton, 235 F.3d 328, 329-30 (7th Cir. 2000). And the testimony of two forensic chemists and a veteran FBI agent are more than enough to support the court’s finding that Serrano distributed crack to the informant. See United States v. Wil-bom, 576 F.3d 676, 678-80 (7th Cir.2009); United States v. Lake, 500 F.3d 629, 634 (7th Cir.2007); United States v. Buchanan, 362 F.3d 411, 413 (7th Cir.2004); see also United States v. Dmnes, 313 F.3d 372, 384 (7th Cir.2002) (holding that sentencing court did not commit clear error in finding that substance was crack in view of recorded conversations referring to “cooking” cocaine).
Counsel also consider arguing that the district court should have concluded that the different statutory mínimums for equal weights of crack and powder cocaine are unconstitutional given the degree of difference and the perceived disproportionate impact on black defendants. But we have rejected this argument repeatedly, see United States v. Tnce, 484 F.3d 470, 476 (7th Cir.2007); United States v. Blanding, 53 F.3d 773, 776 (7th Cir.1995); United States v. Chandler, 996 F.2d 917, 918-19 (7th Cir.1993), and thus counsel are correct to characterize the argument as frivolous. And because Serrano’s constitutional argument would be frivolous, so too would be his contention that the district court should have imposed a sentence below the statutory minimum. Even if the court had wanted to impose a sentence below the statutory minimum, sentencing courts have no authority to disregard statutory minimums. Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Douglas, 569 F.3d 635, 636 (7th Cir.2009).
In his Rule 51(b) response, Serrano echoes the potential argument identified by counsel and then requests that we hold the appeal in abeyance because a bill has been introduced in Congress that would amend 18 U.S.C. § 3553 to allow sentencing courts to disregard statutory minimums as a matter of discretion. See Ramos-Compean Justice Act of 2009, H.R. 3327, 111th Cong. § 2 (2009). We decline to do so.
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/8478018/ | ORDER
This is the fourth lawsuit brought in federal court by Michael Havrilesko on behalf of his clients, John and James Hess, against-Reg-Ellen Machine Tool Corporation and its Employee Stock Ownership Plan (ESOP) arising out of changes in the value of their retirement accounts. After prevailing yet again on summary judgment, the defendants were awarded attorneys’ fees. Havrilesko now contests that fee award. We affirm.
In 2000 and 2002, the Hesses, former employees of Reg-Ellen, sued Reg-Ellen and its ESOP claiming that they ignored the Hesses’ investment requests, thereby violating the plan and the Employee Retirement and Income Security Act (“ERISA”). See 29 U.S.C. § 1132(a)(1)(B). Those two suits were consolidated into a single case. The district court granted summary judgment for the defendants, concluding that the defendants’ actions were not arbitrary or capricious and thus in accord with the terms of the plan. We affirmed. Hess v. Reg-Ellen Mach. Tool Corp. (Hess I), 423 F.3d 653, 666 (7th Cir.2005). The Hesses sued the company and the plan again, claiming this time that the defendants improperly denied the Hesses’ requests to rollover their accounts into a new plan, to segregate and liquidate their accounts, and to diversify their investments. The district court granted summary judgment for the defendants, and we affirmed again, stating, “We trust that this is the last time that we, or any other court, will be seeing this case: two lawsuits are enough.” Hess v. Reg-Ellen Mach. Tool Corp. Employee Stock Ownership Plan (Hess II), 502 F.3d 725, 730 (7th Cir .2007).
But we spoke too soon. Less than a month after arguing Hess II in our court, the plaintiffs filed another suit asserting that the defendants’ denial of their diversification and segregation requests constituted a breach of their fiduciary duty. The district court granted summary judgment for the defendants because res judicata barred the Hesses’ claim. It also ruled that even if it addressed the merits, their claim failed.
The district court next granted the defendants’ request for $46,054.70 in attorneys’ fees incurred after Hess II, see N.D. *690III. R. 54.3, to be split equally by the Hesses and their attorney, Havrilesko. The court concluded fees were proper under 29 U.S.C. § 1132(g)(1): the Hesses’ claim was not substantially justified because it was barred by res judicata; it was not maintained in good faith because the Hesses pressed on with this suit in spite of our warning in Hess II; and no special circumstances made an award of fees unjust. Additionally, the court concluded fees were proper under 28 U.S.C. § 1927 because the Hesses’ attorney multiplied proceedings unreasonably and vexatiously.
ERISA authorizes the award of reasonable attorneys’ fees to the prevailing party and we recognize a modest, rebutta-ble presumption in favor of awarding these fees. See 29 U.S.C. § 1132(g)(1); Laborers’ Pension Fund, v. Lay-Com, Inc., 580 F.3d 602, 615 (7th Cir.2009); Herman v. Central States, Se. & Sw. Areas Pension Fund, 423 F.3d 684, 695-96 (7th Cir.2005). A party is entitled to attorneys’ fees unless the loser had “substantial justification” in bringing suit. See Sullivan v. William A. Randolph, Inc., 504 F.3d 665, 672 (7th Cir.2007). This means that the losing party’s position is more than nonfrivolous, though less than meritorious. Herman, 423 F.3d at 696; Harris Trust & Sav. Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 617 n. 4 (7th Cir.1995).
? urges us to review the fee award de novo based on his belief that “the standard of review for a district court’s findings in a fee petition case should be the same as that for summary judgment.” It’s not. We review a grant of attorneys’ fees under both 29 U.S.C. § 1132(g)(1) and under 28 U.S.C. § 1927 for an abuse of discretion. See Laborers’ Pension Fund, 580 F.3d at 615 (29 U.S.C. § 1132(g)(1)); Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 614 (7th Cir.2006) (28 U.S.C. § 1927). And we’ve explained why: the district court is in a superior position to understand the litigation, and we want to avoid excessive intrusion into what are essentially factual matters. See Robinson v. City of Harvey, 489 F.3d 864, 872 (7th Cir.2007); Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir.2003).
[4] Havrilesko contends that he was substantially justified in bringing the current case because our decision in Harzewski v. Guidant Corp., 489 F.3d 799, 806 (7th Cir.2007), held that a former pension plan participant may sue a plan administrator for breach of fiduciary duty. But just as nothing prohibited the plaintiffs in Harzewski from bringing their fiduciary-duty claims under our pre-Harzewski case law, nothing barred the Hesses from doing so in their earlier lawsuits. Because they could have brought this claim earlier, res judicata bars it. See Hicks v. Midwest Transit, Inc., 479 F.3d 468, 471 (7th Cir. 2007); Simon v. Allstate Employee Group Med. Plan, 263 F.3d 656, 658 (7th Cir. 2001); 1901 Corp. v. Town of Cicero, 220 F.3d 522, 529 (7th Cir.2000).
Havrilesko next contends that because he supplied an undisputed affidavit asserting that the defendants told him he that could bring “additional” claims, he created a genuine issue whether the defendants were “equitably estopped” from raising the res judicata defense. As the district court correctly concluded, this argument was frivolous because this lawsuit contained no “additional” claims. A “claim” consists of the underlying factual events rather than the legal theories advanced. Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir.2008); Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001). Because the Hesses pressed only a new theory on the same underlying facts, they raised no additional claims.
*691Next, Havrilesko attacks the district court’s conclusion that he disregarded in bad faith our warning in Hess II against more litigation because we issued the warning after he filed this suit. But the court did not conclude that he exhibited bad faith by initiating this suit before Hess II, but by maintaining it after. Attorneys are under a continuing duty to dismiss a claim that is no longer viable. See Jolly Group, Ltd. v. Medline Indus. Inc., 435 F.3d 717, 720 (7th Cir.2006); Burda v. M. Eclcer Co., 2 F.3d 769, 778 (7th Cir.1993). The district court issued attorneys’ fees only for the time after Hess II. On this basis, we cannot find an abuse of discretion. See Stark v. PPM Am., Inc., 354 F.3d 666, 673 (7th Cir.2004).
Havrilesko also asserts that because he submitted an unrebutted affidavit attesting that he could not afford to pay, the court improperly concluded an award of fees was warranted. But the court permissibly ruled that his affidavit did not give it an adequate basis to find an inability to pay: he attached no bank statements or tax returns, and failed to disclose whether he had any alternate sources of income. Stark, 354 F.3d at 673-74. The court therefore properly concluded that Havrilesko—who bore the burden of showing special circumstances, see Stark, 354 F.3d at 673-74; Prod. & Maint. Employees’ Local 501 v. Roadmaster Corp., 954 F.2d 1397, 1404 n. 1 (7th Cir.1992); see also Martin v. Ark. Blue Cross & Blue Shield, 299 F.3d 966, 969-70 (8th Cir. 2002)—did not qualify for relief. See Stark, 354 F.3d at 673-74. And in any case, “a lawyer’s ability to pay does not affect the appropriate award for a violation of § 1927,” Shales v. Gen. Chauffeurs Local 330, 557 F.3d 746, 749 (7th Cir.2009); see also Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1206 (10th Cir.2008), which was one of the two statutory bases for the fee award.
? the defendants have asked for fees on appeal, and because this appeal is just as frivolous as the district court litigation, they are entitled to them. See Bandak v. Eli Lilly & Co. Ret. Plan, 587 F.3d 798, 802-03 (7th Cir.2009); Sullivan, 504 F.3d at 672. The defendants should submit within 14 days an itemized statement of the attorneys’ fees that they incurred in defending the appeal, and Havri-lesko will have 14 days to respond.
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478020/ | ORDER
Jeffrey Leiser was acquitted in Wisconsin state court of sexually assaulting his girlfriend’s nine-year-old granddaughter but convicted of assaulting her eight-year-old granddaughter. After exhausting the state appellate and postconviction processes, Leiser filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal court. The district court denied his petition but granted him a certificate of appealability. We affirm.
The eight year old reported to her mother that Leiser, her grandmother’s live-in boyfriend, had touched her in her private parts while she was sitting on his lap watching a movie at her grandmother’s house. The girl revealed the assault when her mother asked both her daughters whether Leiser had ever touched them. The question was prompted by her discovery that Leiser was listed on a sex-offender registry. Although the nine year old, unlike her sister, initially denied being touched, a few months later she told her mother that Leiser had touched her inappropriately too, also while sitting on his lap at her grandmother’s house. Leiser was charged with two counts of sexual assault.
Before trial the court prohibited the prosecution from mentioning any of the details surrounding the 1996 conviction that led to Leiser registering as a sex offender. Leiser had been convicted of second-degree sexual assault based on a long-term sexual relationship he had begun with a 12-year-old girl whom he impregnated when she was 14. Although the prior relationship consisted primarily of intercourse, it appears that Leiser also was sexually stimulated at least once from the girl sitting on his lap. The prosecution wanted to use details of the prior conviction to show that Leiser intended to get sexual gratification, an element of the offense, from his alleged acts against the two girls here. The trial court acknowledged that the evidence would be relevant for that narrow purpose, but excluded it as overly prejudicial because the other details of the crime were too dissimilar from the ■current charges — in particular, the age of the victims, the acts performed, and the duration of the abuse.
The trial court, however, allowed the prosecution witnesses to testify that they knew Leiser was a registered sex offender because it found that detail necessary to explain the context in which the allegations of the two assaults came to light. Speeifi-*694cally, the mother questioned her daughters about inappropriate touching only because she learned Leiser was on the sex-offender registry. Leiser’s trial counsel did not object but did express concern about how the disclosure would be worded. The trial court later instructed the jury to consider Leiser’s status as a sex offender only for context and not as a basis to conclude that Leiser is a bad guy and therefore guilty.
Leiser’s theory of the defense was that his gh’lfriend’s family did not like him from the beginning, and once they learned he was a registered sex offender, they influenced the girls into believing that Leiser had assaulted them. He did not testify, but his mother, sister, and the girls’ grandmother (who by that point was his wife) testified in his defense. His sister testified that at the time when Leiser supposedly assaulted the nine year old, she was outside with them and sitting on the bench where the girl said the incident occurred. She said that Leiser never sat there and denied that the alleged abuse ever happened. The girls’ grandmother and Leis-er’s mother (who lived with Leiser and the grandmother) each testified that they were home at the time of both alleged incidents and denied that Leiser touched the girls inappropriately.
After the jury verdict, Leiser was sentenced to 25 years’ confinement followed by 20 years’ extended supervision. Leiser filed a postconviction motion under § 974.02 of the Wisconsin statutes challenging his trial counsel’s effectiveness for failing to object to the admission of his status as a sex offender.1 The trial court denied the motion, and Leiser raised the issue again on direct appeal. The Wisconsin Court of Appeals found that trial counsel was not ineffective because the evidence was admissible, and the Wisconsin Supreme Court denied review.
After his conviction was final, Leiser filed another postconviction motion, this time under § 974.06, challenging other aspects of his trial counsel’s performance— namely, failing to call the girls’ father as a witness, failing to object to the state’s closing argument, and failing to object to Leiser’s absence from the court during a discussion about a question from the jury. Because Leiser was required to raise these challenges in his first postconviction petition but did not, he attempted to excuse his default by arguing that their omission was the result of postconviction counsel’s ineffectiveness. See State v. Escalonar-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157, 160-61 (1994); State ex rel. Rothenng v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136, 139-40 (1996). The Wisconsin Court of Appeals, though, found that Leiser’s postconviction counsel was not ineffective because Leiser’s underlying challenges to his trial counsel’s performance had no merit. The Wisconsin Supreme Court again denied review.
Leiser raised the same contentions in a federal habeas corpus petition. The district court likewise denied Leiser relief, concluding that the Wisconsin court had reasonably applied federal law to Leiser’s claims.
On appeal Leiser persists in his claims that his trial counsel and postconviction counsel were constitutionally ineffective. This court, however, has yet to decide whether Wisconsin prisoners have a sixth amendment right to effective assistance of postconvietion counsel before direct appeal. See Hiiusko v. Jenkins, 556 F.3d 633, 634-35 (7th Cir.2009). But because *695we conclude that the underlying challenges to trial counsel’s performance have no merit, we shall treat Leiser’s challenges as ones to trial counsel’s performance — challenges that the Wisconsin court analyzed in determining postconviction counsel’s effectiveness — and save for another day a foray into Wisconsin postconviction procedures. See Northern v. Boatwright, 594 F.3d 555, 559-61 (7th Cir.2010) (holding that appellate counsel was not ineffective for failing to raise weak claim of ineffective assistance of trial counsel).
A defendant has a right under the Sixth Amendment to effective assistance of counsel at trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We review the Wisconsin Court of Appeals’s decision as the last state court to reach the merits of Leiser’s petition. McAfee v. Thurmer, 589 F.3d 353, 354 (7th Cir.2009). For relief Leiser must show that the Wisconsin court’s decision is either (1) contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent or (2) based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 404-06, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court’s decision must be not only wrong but also objectively unreasonable. Bell v. Cone, 535 U.S.' 685, 698-99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir.2009). A decision is not objectively unreasonable unless it falls “well outside the boundaries of permissible differences of opinion.” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir.2009) (internal quotation marks omitted) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002)).
Leiser first argues that his trial counsel was ineffective because he did not object to the jury’s hearing that he was a registered sex offender. He asserts that his sex-offender status was not necessary for context and should have been prohibited as propensity evidence. Leiser insists that if his counsel had objected, the court would have excluded the evidence for the same reasons it excluded evidence of his prior conviction. Leiser contends that the repeated references to his status as a sex offender led the jury to convict him solely on this basis and rendered his trial fundamentally unfair.
The Wisconsin Court of Appeals determined on direct appeal that Leiser’s trial counsel was not ineffective for failing to object because the evidence was admissible. It noted, first, that Leiser’s sex-offender status was probably not “classic other acts evidence” but rather part of the “panorama of evidence” that explained how and why the crimes were reported. But, the appellate court continued, even if Leis-er’s status was other-acts evidence, it was properly admitted to show the context of the girls’ disclosures. The appellate court concluded that Leiser’s status as a sex offender required a different evidentiary analysis than that for his prior conviction. First, evidence of the conviction and the sex-offender status had been offered for different purposes — one to show Leiser’s intent to receive sexual gratification and the other to show context. Also, evidence of the conviction included details of prior sexual conduct, while evidence of Leiser’s status on the registry did not. And because the jury would not know why Leiser was on the registry, the court noted that “[t]he mere fact that Leiser was a registered sex offender would not appeal to the jury’s sympathies, arouse a sense of horror, or invoke an instinct to punish.” Plus, the appellate court added, the trial court gave a cautionary instruction that mitigated any prejudice. This evidence, therefore, was properly admitted.
*696Although the Wisconsin appellate court did not cite to Strickland, it applied the correct standard, namely whether “counsel’s representation was deficient and prejudicial.” See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (holding that citation to federal precedent unnecessary); Johnson v. Pollard, 559 F.3d 746, 752 & n. 6 (7th Cir.2009) (same). Therefore, we examine whether the Wisconsin court unreasonably determined that Leiser was not prejudiced because the evidence would have been admitted over an objection. When evidence is admissible, counsel is not ineffective for failing to object. Hough v. Anderson, 272 F.3d 878, 898 (7th Cir.2001). And so we review the state court’s admissibility ruling, keeping in mind that we are hesitant to second-guess state courts when they are interpreting state law. Earls v. McCaughtry, 379 F.3d 489, 495 (7th Cir.2004). Here, the trial court was careful to exclude reference to a prior conviction, limiting the state to mentioning only Leiser’s presence on the registry. Although Leiser is correct that a juror is likely to infer that he had been convicted of a sex crime, no Wisconsin or federal constitutional rule completely bars evidence of a prior sex crime in a sex-crime prosecution. See United States v. Julian, 427 F.3d 471, 487 (7th Cir.2005); State v. Hunt, 263 Wis.2d 1, 666 N.W.2d 771, 793-94 (2003). Wisconsin courts even give greater latitude to the prosecution when seeking to admit evidence of a prior sex crime in child sex abuse cases. State v. Hammer, 236 Wis.2d 686, 613 N.W.2d 629, 636-37 (2000); State v. Davidson, 236 Wis.2d 537, 613 N.W.2d 606, 615-19 (2000). We find that the appellate court thoroughly analyzed the controlling test for admissibility of other-acts evidence, see State v. Sullivan, 216 Wis.2d 768, 576 N.W.2d 30, 32-33 (1998), and came to a reasonable conclusion.
Next, Leiser argues that his trial counsel should have called the girls’ father to testify. According to Leiser, the father would have provided critical information about the mother’s state of mind when she first asked her daughters about Leiser. Specifically, Leiser asserts that the father would have testified that the mother was hysterical when she questioned her daughters, bolstering his theory of defense that the mother’s excited state caused the girls to fabricate the assaults. In support, he points to a police report that he says conflicts with the trial testimony and asserts that the father’s testimony would have resolved the conflict in his favor.
In reviewing the denial of Leiser’s second postconviction petition, the Wisconsin Court of Appeals found no error. The court noted that even if the father had testified as Leiser supposed, the testimony would not have contradicted other evidence elicited at trial — the mother herself testified that she was upset when questioning her daughters about any possible sexual assault — and therefore the father’s testimony would not likely have changed the result of the trial. But more importantly, because Leiser offered no evidence about what the father’s testimony would have been (i.e., through an affidavit by the father), the court found that he failed to show that the father’s testimony would have helped him, thus dooming a claim that the lawyer was ineffective for not calling him to testify.
The Wisconsin appellate court’s insistence on evidence of how the father would have testified is not unreasonable. On collateral review Leiser bears the burden to prove what the father’s testimony would have been and how it would have helped him at trial. See Hardamon v. United States, 319 F.3d 943, 951 (7th Cir.2003); Wright v. Gramley, 125 F.3d 1038, 1044 (7th Cir.1997). He gave no such evidence to the state courts, nor did he provide any to the federal district court. His reliance *697on the police reports is misplaced. Even if they do conflict with trial testimony, the reports do not reveal how the father would have testified. Leiser’s continued speculation about the father’s testimony does not make the Wisconsin court’s decision unreasonable.
Next, Leiser argues that counsel was ineffective for failing to object to the prosecutor’s closing argument. Leiser believes that the prosecutor improperly disparaged his mother’s credibility by describing her testimony that she knew where her son’s hands were at the time of the alleged assaults as being a “patently absurd claim, an absurd claim.” He also asserts that the prosecutor improperly bolstered the girls’ testimony by describing their credibility as being “extremely high.”2 •
The Wisconsin Court of Appeals rejected this contention as well. It noted that counsel in closing argument had considerable latitude and concluded that the prosecutor’s remarks were all within permissible bounds: the prosecutor recounted the testimony of various witnesses, explained how the evidence supported the girls’ credibility, and urged the jury to give its verdict based on the evidence it heard. Additionally, the appellate court noted that the trial court properly instructed the jury that the lawyers’ closing arguments were not evidence, and the jury is presumed to follow that instruction. Because there was no error in the closing arguments, the Wisconsin court concluded that trial counsel was not ineffective for not raising the issue.
We agree with the Wisconsin court that the statements were not improper. Wisconsin law allows the prosecution to suggest inferences from the evidence. State v. Mayo, 734 N.W.2d 115, 126-27 (Wis. 2007); cf. United States v. Nunez, 532 F.3d 645, 654 (7th Cir.2008) (same for federal law). The phrases that Leiser identifies — when examined in the context of the entire argument — are based only on the evidence from trial; they did not infect the trial with unfairness.
Next, Leiser argues that counsel was ineffective for failing to object to his absence when the trial court and lawyers were discussing a request from the jury during deliberations. The note itself is not in the record, but the trial court later summarized its contents and the resolution on the record. The jury asked to rehear certain testimony of the mother and the eight year old concerning the timing of the disclosure. Leiser’s counsel and the prosecution both agreed that one requested passage should not be read back because it was too long; the court instructed the jurors to rely on their collective memory of the testimony. The parties disagreed on whether another passage should be read back, and the trial court sided with Leis-er’s attorney not to have it read back, again instructing the jury to rely on their collective memory. Leiser now contends that the passages the jury wanted read were favorable to him, and had he been present he would have requested that they be read back, which would have led to his acquittal.
The Wisconsin Court of Appeals analyzed this claim directly rather than through the rubric of ineffective assistance of counsel. It acknowledged that it was error for Leiser not to be present during the discussion about the jury’s note but concluded that the state had proven the error harmless beyond a reasonable doubt. *698The court reviewed the testimony of both the eight year old and the mother and found that neither favored Leiser. According to the court, the testimony was an explicit recounting by the girl of the alleged assault by Leiser, and a recounting by the mother of her inquiry to the child about an assault. In any event, the appellate court concluded that the trial court would probably not have allowed a rereading of the testimony given its express disinclination to have such a lengthy portion read back. Accordingly, it concluded that Leiser’s presence would not have affected the jury’s verdict.
Because the Wisconsin court reviewed the merits of this claim directly, we may review the Wisconsin court’s decision rather than conduct our own ineffective-assistance analysis. See Sturgeon v. Chandler, 552 F.3d 604, 611-12 (7th Cir.2009). We review whether the Wisconsin court’s harmless-error finding was reasonable. Johnson v. Acevedo, 572 F.3d 398 (7th Cir.2009). Ultimately, the Wisconsin court’s finding that the testimony was unfavorable to Leiser is enough to dispose of this claim because the finding shows that the jury would have convicted Leiser even after rehearing the testimony. That factual finding is presumed correct absent clear and convincing evidence otherwise. 28 U.S.C. § 2254(e)(1). Leiser argues that the omission of the jury note from the record leaves in question which passage of testimony the jury wanted read back. He contends that “the jury may have been looking at the inconsistency of the testimony from the mother and alleged victims, or if the father was present, or if the mother was crying when she got off the phone or if the other children were in the room when the mother asked if Leiser ever touched them, or any other part of the record.” (emphasis added) But this argument is not the sort of clear and convincing evidence that would warrant overturning the Wisconsin court’s finding that the testimony was not favorable to Leiser.
Accordingly, we AFFIRM the judgment.
. Wisconsin law provides a procedure for convicted defendants to raise instances of ineffective assistance of trial counsel before filing a direct appeal. See Wis Stat. §§ 809.30(2)(h), 974.02; State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Wis.Ct.App. 1979).
, In addition, he argues that the prosecutor’s repeated references to him being a sex offender improperly influenced the jury. But he did not raise this before the Wisconsin appellate court, and so it is defaulted. Stevens v. McBride, 489 F.3d 883, 893-94 (7th Cir. 2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478022/ | *699ORDER
In the sprawling expanses of the market for crack cocaine, Edgar Holder occupied a cozy corner in southern Wisconsin. His operation involved purchasing large quantities of crack in Chicago and retailing it in Janesville, Wisconsin. He recruited “runners” to sell the drugs in Wisconsin, and one of them was persuaded by investigators to help the government build a case against Holder. Holder was arrested affer making a series of controlled buys with individuals working at his direction. He pleaded guilty to one count of conspiring to possess with intent to distribute 50 or more grams of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 846, and was sentenced to 200 months’ imprisonment. Holder filed a notice of appeal, but his counsel, having concluded that the appeal is frivolous, seeks permission to withdraw under Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Since Holder did.not respond to his counsel’s Anders submission, we review only the issues raised in counsel’s brief, which is facially adequate. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009).
Counsel first considers whether Holder could challenge the reasonableness of his sentence. The court properly calculated the guidelines range and sentenced him to 200 months’ imprisonment, ten months below the bottom of his range. However, challenging a below-range sentence as unreasonably high is generally a futile endeavor, see United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009); United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and we find nothing in the record to suggest that Holder’s case presents an exception. ■ The court properly considered the factors in 18 U.S.C. § 3553(a), fixing its attention on Holder’s personal background and criminal history. See id. § 3553(a)(1). With six drug-related convictions, Holder, the court said, appeared to be “the epitome of a career offender.” And given his long pattern of criminal conduct, the court was not persuaded that his disadvantaged personal background warranted a further reduction. Accordingly, we agree with counsel that it would be frivolous to argue that Holder’s sentence was unreasonable.
Counsel also considers arguing that the district court denied Holder the right of a meaningful allocution in violation of Federal Rule of Criminal Procedure 32. He examines whether the court might have erred when it cut short the statement Holder had prepared after allowing him to read from it at length (it took up 16 pages in the sentencing transcript). Holder did not raise this objection at sentencing, so we would review it for plain error. United States v. Luepke, 495 F.3d 443, 448 (7th Cir.2007). Under Federal Rule of Criminal Procedure 32(i)(4), Holder had a right at sentencing to make a statement and present any information in mitigation of the sentence. Fed.R.Crim.P. 32(i)(4)(A)(ii); United States v. Alden, 527 F.3d 653, 663 (7th Cir.2008).
We agree with counsel that a Rule 32 challenge would be frivolous. The right to speak at allocution is not without limits on time or content. Alden, 527 F.3d at 663 (allocution is not the proper time to rear-gue the merits); United States v. Li, 115 F.3d 125, 133-34 (2d Cir.1997) (a fifteen-to twenty-minute allocution generally is enough to satisfy Rule 32); United States v. Eibler, 991 F.2d 1350, 1357 (7th Cir. 1993) (no right to in camera allocution); United States v. Aquilla, 976 F.2d 1044, 1054 (7th Cir.1992) (defendant does not have a right to address the court at any particular time during sentencing). The sentencing judge was patient with Holder, allowing him to speak for what amounted to 14 pages in the sentencing transcript before encouraging him to “wind it up.” Holder agreed, and then forged on for two *700additional transcript pages, stopping only to ask if he could read the last page. The court acted within its discretion in concluding that Holder had received a meaningful opportunity to present his case for a lenient sentence. See Alden, 527 F.Bd at 663; see also Luepke, 495 F.3d at 450 (“ ‘Rule 32[ ] does not purport to set out a script that the district courts must follow when advising defendants of their right of allocution. Instead, the substance of what occurred is what counts.’ ” (quoting United States v. Williams, 258 F.3d 669, 674 (7th Cir.2001))).
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/8478024/ | ORDER
Cornell Morgan was convicted by an Illinois jury of attempted first degree murder, 720 III. Comp. Stat. § 5/9-1, and aggravated battery with a firearm, 720 III. Comp. Stat. § 5/12-3, and sentenced to 22 years’ imprisonment. After exhausting his state-court remedies, Morgan petitioned for a writ of habeas corpus, see 28 U.S.C. § 2254, claiming that the state trial court violated his right to due process by failing to conduct a competency hearing and, re-latedly, that his trial counsel was ineffective for failing to investigate whether he was fit to stand trial. The district court denied the writ but certified both issues for appeal. We affirm.
We begin with the facts as presented to the state appellate court. See Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir.2009) (factual determinations made by a state court are presumed correct unless later rebutted by clear and convincing evidence). At a hearing before jury selection on Morgan’s competency to stand trial, the government and the defense stipulated to the findings of a psychiatric evaluation prepared by Dr. Roni Seltzberg. Dr. Seltzberg had examined Morgan six months earlier and found him fit to stand trial. Dr. Seltzberg reported that although Morgan had benefitted from certain psychotropic drugs, he likely would be competent to proceed without the medication. According to the evaluation, Morgan understood the charges against him, and the drugs did not seem to cloud his ability to think. Corroborating the evaluation were the statements of Morgan’s trial counsel, who noted that Morgan had assisted him “very well” during the pretrial stages and concluded that he “absolutely” had the capacity to continue to participate as the trial progressed.
After he was convicted, Morgan moved for a new trial, arguing that the state trial court relied too heavily on the psychiatric evaluation, which he claimed failed to reflect deterioration in his mental condition during the subsequent six months. For support he submitted two grievances he had filed during that period in which he complained that he was depressed, that he could not sleep, that his medication was not working, and that he was having thoughts about killing himself and others. He noted in his motion that on the evening of his competency hearing, he had been admitted to the jail’s hospital and had his medication adjusted. The trial court denied the motion.
On direct appeal the state appellate court affirmed Morgan’s conviction. The court was not persuaded that Morgan’s grievances and the adjusted dosage in his medication undermined the findings of Dr. Seltzberg. Even if they had, the court reasoned, the trial court had supplied additional support for its fitness finding, including the assurance from defense counsel that Morgan was prepared to assist in his defense, and the court’s own observations that Morgan appeared to be cooperative with his attorney, responsive to questions, and actively involved at each stage of *702the proceeding. The Supreme Court of Illinois declined review.
Morgan then filed this petition for a writ of habeas corpus, arguing (1) that he was denied a formal fitness hearing in violation of his due-process rights; and (2) that his trial counsel was ineffective because he stipulated to the findings of a stale evaluation and failed to investigate whether Morgan was competent to stand trial. The district court denied the petition. The court rejected the due-process claim because it found no unreasonable or inconsistent application of federal law. The court found the ineffective-assistance claim procedurally defaulted because Morgan failed to raise it in his petition to the Supreme Court of Illinois.
This action is governed by the Antiter-rorism and Effective Death Penalty Act. 28 U.S.C. § 2254(d). Morgan seeks relief from a state conviction that was reviewed on the merits by a state court, and we will grant the petition only if the state appellate court’s decision was contrary to clearly established Supreme Court precedent, called for an unreasonable application of such precedent, or was based on an unreasonable determination of the facts in light of the evidence presented to the trial court. See id.; Lucas v. Montgomery, 583 F.3d 1028,1030 (7th Cir.2009).
We turn first to Morgan’s due-process claim. We understand Morgan to argue that the state appellate court violated his right to a reasonable opportunity to show that he was not competent to stand trial. He reasserts that the trial court conducted a cursory hearing and improperly relied on the stipulated findings of Dr. Seltzberg; a deeper inquiry, he insists, would have disclosed that his mental health had declined, and that on the first day of trial he was without sleep and unaccustomed to changes in his medication.
A defendant is fit to stand trial if he understands the proceedings against him and is capable of consulting with his lawyer in preparing his defense. Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). Illinois codified this standard in 725 III. Comp. Stat. § 5/104-11, which provides that once a defendant presents a “bona fide doubt” about his fitness, the burden shifts to the State to prove fitness by a preponderance of the evidence. The Supreme Court has ruled that the Illinois standard adequately protects the due-process rights of criminal defendants. See Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
Applying the bona fide doubt standard, the state appellate court concluded that the trial court had no substantial reason to doubt Morgan’s ability — both before and during trial — to understand the proceedings and consult with his attorney in preparing his defense. The court relied primarily on three sources: Dr. Seltzberg’s evaluation concluding that Morgan was competent to proceed with or without medication; statements from Morgan’s trial counsel suggesting that Morgan had assisted, and could continue to assist, in the preparation of his defense; and the trial court’s observation that Morgan did just that — he regularly consulted with his lawyer during trial and remained actively engaged at each stage of the proceeding. The court was unpersuaded by Morgan’s argument that the psychiatric evaluation failed to reflect deterioration in his mental condition, and reasonably so: the evaluation formed only part of the basis for the pretrial finding. The trial court also relied on unequivocal representations from defense counsel suggesting that Morgan was competent to proceed. In any event, neither the evidence of his mental disturbances nor the change in his dosage was *703sufficient, by itself, to raise a bona fide doubt about his fitness. See People v. Eddmonds, 143 U1.2d 501, 161 Ill.Dee. 306, 578 N.E.2d 952, 960 (1991) (that petitioner suffered from a mental disturbance did not create' a presumption that he was unfit); see also Rever v. Acevedo, 590 F.3d 533, 538 (7th Cir.2010) (adjustment in petitioner’s medication was not sufficient to call his competency into question); People v. Steppan, 322 Ill.App.3d 620, 255 IlLDec. 938, 751 N.E.2d 32, 39 (2001).
Having resolved Morgan’s due-process claim, we can quickly dispose of the ancillary argument that his lawyer was ineffective for failing to further investigate his fitness for trial. As the state appellate court properly concluded, if Morgan did not raise a bona fide doubt about his fitness, he could not show a reasonable probability that further investigation would have changed the outcome of the proceeding. See Sturgeon v. Chandler, 5§2 F.3d 604, 612 (7th Cir.2009). That aside, we agree with the district court’s conclusion that Morgan procedurally defaulted this claim when he failed to raise it before the state supreme court. To avoid default, a habeas petitioner must present the federal issue at each tier of state-court review. See 28 U.S.C. § 2254(b)(1)(A); Stevens v. McBride, 489 F.3d 883, 893-94 (7th Cir. 2007). Morgan attributes his failure to do so to his mental condition. But to show good cause for the default, Morgan would have to identify a factor external to his defense that precluded him from raising the claim in his petition to the Supreme Court of Illinois. Harris v. McAdorrj, 334 F.3d 665, 668 (7th Cir.2003); Spreitzer v. Schomig, 219 F.3d 639, 647-48 (7th Cir. 2000). Mental illness is not such a factor. Hams, 334 F.3d at 668-69.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478026/ | ORDER
After a bench trial, Randy Gellinger was found guilty of possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B), and he was sentenced to the statutory maximum of 120 months in prison. See id. § 2252(b)(2). Gellinger appeals, but his appointed counsel has moved to withdraw because he cannot identify any nonfrivo-lous argument to pursue on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gellinger opposes counsel’s motion. See CIR. R. 51(b). We confine our review to the potential issues outlined in counsel’s facially adequate brief and Gellinger’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
A task force investigating child exploitation crimes told federal and state officers that Gellinger had bought memberships to two known child pornography websites. The officers went to question Gellinger at his parents’ home; there, they read him his Miranda rights and obtained a written waiver-of-rights form on which he noted that he was not in custody. Gellinger admitted to having purchased membership in a child-pornography website and to having child pornography on his computer. *707After Gellinger consented orally and in writing to a search of his computer, the officers checked the computer and promptly found child pornography. He was arrested a week later, again given Miranda warnings, confronted with several of the files found on his computer, and he admitted that the files were his.
Gellinger moved to suppress evidence obtained during the search. The district court denied the motion because Gellinger had signed written forms consenting to the searches, and there was no persuasive reason to invalidate those consents. The case proceeded to a bench trial, upon which he was convicted of knowingly possessing 18 images of child pornography.
In his Anders submission, counsel first considers whether Gellinger could challenge the denial of his motion to suppress his statements to the police and the evidence recovered from his parents’ home. Counsel asks whether the statements or consents that Gellinger gave at his parents’ home were in any way involuntary, procured by threat or intimidation.
We agree with counsel that it would be frivolous to raise this challenge on appeal. First, as the district court found, Gellinger was not in custody at the time of questioning. Whether a suspect is in custody turns on whether, based on the totality of the circumstances, a reasonable person would believe that he was free to leave. United States v. Thompson, 496 F.3d 807, 810 (7th Cir.2007). Here the court found that the agents had been invited into the home, Gellinger had agreed to be questioned, and the officers did not physically restrain- or intimidate Gellinger in any manner. And even if the interview was deemed custodial, the court continued, the officers secured a knowing and voluntary waiver when Gellinger signed a written waiver of rights. Finally, the court disbelieved Gellinger’s denials that he understood this waiver, and neither counsel nor Gellinger points to anything in the record that would lead us to disturb the court’s finding. See United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir.2009); United States v. Stewart, 536 F.3d 714, 720 (7th Cir.2008).
Counsel also considers whether Gelling-er could argue that there was insufficient evidence to support a finding of guilt. In reviewing a case for sufficiency of the evidence, we would view the evidence in the light most favorable to the government and uphold a conviction unless there is no evidence in the record from which a fact-finder could have found the defendant guilty. See United States v. Hampton, 585 F.3d 1033, 1040 (7th Cir.2009); United States v. Moses, 513 F.3d 727, 733 (7th Cir.2008). Gellinger would face a “nearly insurmountable” hurdle in showing that the evidence was insufficient to support a conviction, and we would not second-guess the fact-finder’s decisions regarding the weight of the evidence. United States v. Oros, 578 F.3d 703, 710 (7th Cir.2009); United States v. Angle, 234 F.3d 326, 339 (7th Cir.2000). Based on Gellinger’s admissions to the police and the numerous images recovered from his computer files, we agree with counsel that the evidence was more than sufficient for the judge to find Gellinger guilty beyond a reasonable doubt. See United States v. Muick, 167 F.3d 1162, 1166 (7th Cir.1999) (recounting evidence deemed sufficient to uphold convictions on child pornography charges).
Finally, counsel considers whether Gel-linger could challenge his sentence. We agree that any such challenge would be frivolous. The district court correctly calculated Gellinger’s recommended guidelines range at 151-188 months, but noted that this range exceeded the 120-month statutory maximum under 18 U.S.C. § 2252(b)(2)-which became the recommended sentence. See U.S.S.G. *708§ 5G1.1(a). We would presume that a sentence falling within the properly calculated guidelines range is reasonable. See Rita v. United States, 551 U.S. 338, 345-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see also United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). The transcript from Gellinger’s sentencing hearing shows that the court appropriately considered the required factors under 18 U.S.C. § 3553(a), taking into account the extremely exploitative nature of child pornography; Gellinger’s significant criminal history of misdemeanor offenses, including additional foreboding incidents in the preceding month; and the need to deter others who might be thinking about collecting child pornography.
In his Rule 51(b) response, Gellinger broadly asserts that he received “ineffective counseling.” A challenge to the adequacy of counsel’s performance, however, is best pursued on collateral review so that a more complete record can be made. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Wilson, 481 F.3d 475, 485 (7th Cir.2007) Gellinger also claims that the court and the government were biased because of the nature of his crime. But Gellinger points to nothing in the record that would suggest inappropriate bias, and we can find none.
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/8478028/ | ORDER
Shana Sain owned a transportation company that partnered with Indiana Medicaid to provide services to eligible patients. Over a two-and-a-half-year period, Sain ov-erbilled for her services, defrauding the agency of nearly a quarter of a million dollars. She pleaded guilty to health-care fraud, 18 U.S.C. § 1347, and, in her plea agreement, stipulated to an offense level of 15 and waived the right to appeal her sentence as long as the district court sentenced her within or below the advisory guideline range for that offense level. Sain’s criminal-history category of IV produced a guidelines imprisonment range of 30 to 37 months, and the district court sentenced her to a 30-month prison term. Sain appeals nonetheless, and her appointed counsel seeks to withdraw under An-ders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that the appeal is frivolous. Sain did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We limit our review to the potential issues discussed in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Sain does not wish to have her guilty plea set aside, so counsel properly omits any discussion of the voluntariness of her guilty plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002). The appeal waiver stands or falls with the plea, Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008); United States v. Whitlow, 287 F.3d 638, 640 (7th Cir.2002), and Sain’s waiver precludes her from challenging her within-guidelines sentence. Accordingly, we agree with counsel that any potential arguments on appeal would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478030/ | ORDER
Ruben Galarza pleaded guilty to his role in a cocaine distribution conspiracy that moved 300 kilograms of cocaine every two weeks, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 151 months’ imprisonment. Galarza filed a notice of appeal, but his appointed lawyer has asked to with*714draw because he has determined that any appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We invited Galarza to respond to counsel’s submission, see Cir. R. 51(b), but he did not. We limit our review to the issues considered in counsel’s facially sufficient supporting brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel tells us that Galarza does not want his guilty plea vacated, and so he properly omits any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel first considers whether Galarza might challenge the district court’s calculation of his recommended guidelines range. But any such challenge would be frivolous. The district court correctly calculated Ga-larza’s final offense level to be 34 (accounting for reductions for acceptance of responsibility and the “safety valve”) and his criminal history category to be I, resulting in a recommended imprisonment range of 151 to 188 months.
Counsel next considers whether Galarza might renew his argument that he should have received a three-level reduction for acceptance-of-responsibility (rather than two) because he pleaded guilty before trial. Noting that his plea on the eve of trial made that reduction unlikely, the district court correctly recognized that the further reduction would be appropriate only if the government had asked for it, and here it had not. See United States v. Deberry, 576 F.3d 708, 710 (7th Cir.2009), petition for cert, filed, (Oct. 30, 2009) (No. 09-7351). Any such challenge would therefore be frivolous.
Finally counsel considers whether Galarza might challenge the reasonableness of his sentence. The court sentenced him to the bottom of the suggested range, and a sentence within a properly calculated range is presumed reasonable. See 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). Moreover, at sentencing the court considered Galarza’s argument that he should be sentenced similarly to his coconspirator who received a sentence of 47 months’ imprisonment. Although the court expressed sympathy with that argument, it concluded that a sentence at the low end of the guidelines was more appropriate because Galarza’s crime involved a “staggering” amount of drugs whose impact would be felt both in terms of gangland murders and kids becoming addicted. The district court weighed the appropriate factors under 18 U.S.C. § 3553(a), emphasizing that although a shorter sentence might have provided adequate deterrence, see 18 U.S.C. § 3553(a)(2)(B), the guidelines sentence would more adequately reflect the seriousness of the crime and promote respect for the law, id. § 3553(a)(2)(A). Because the court meaningfully considered the § 3553(a) factors, any argument challenging Galarza’s sentence would be frivolous. See, e.g., United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008).
Accordingly, counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
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