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https://www.courtlistener.com/api/rest/v3/opinions/8478202/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Missouri petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for habeas corpus. He seeks an order from this court directing the district court to act. Our review of the district court proceedings reveals that the district court denied Missouri’s motion during the supervised release revocation proceedings. Accordingly, because the district court has recently decided Missouri’s case, we deny the mandamus petition as moot. 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https://www.courtlistener.com/api/rest/v3/opinions/8478206/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek N. Jarvis appeals the district court’s order dismissing his civil action for lack of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jarvis v. GEICO Ins. Comp., No. 8:09-cv-02638-RWT, 2009 WL 3833964 (D.Md. Nov. 13, 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/8478189/ | OPINION
PER CURIAM.
Willie Shuman filed this pro se petition for a writ of mandamus pursuant to 28 U.S.C. § 1651 seeking an order compelling the District Court to act upon his motion for a default judgment. For the reason that follows, we will deny the petition.
In May 2009, Shuman filed a prisoner civil rights suit under 42 U.S.C. § 1983 in the United States District Court for the District of New Jersey. On July 28, 2009, the District Court ordered the defendant to file a responsive pleading within the time specified by Rule 12 of the Federal Rules of Civil Procedure. In a brief document dated that same day (July 28, 2009), Shuman asked the court to withdraw his complaint because it was “taking too long for this court to protect my rights.” The District Court granted Shuman’s request on August 10, 2009 and dismissed the case.
Despite the fact that his case had been dismissed, Shuman wrote to the court in November 2009 requesting that a default judgment be entered against the defendant because he had failed to file a timely responsive pleading. In January 2010, Shu-man filed this mandamus petition seeking to have this Court order the District Court to enter a default judgment. About a week later, Shuman filed a motion asking the District Court to reopen his case.
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). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisputable” right to the issuance of the writ and that he has “no other adequate means” to obtain the relief desired. Madden v. Myers, 102 F.3d *32774, 79 (3d Cir.1996). Here, Shuman has failed to show that he has a “clear and indisputable” right to entry of default judgment for the simple fact that there is no matter pending in which to enter such a judgment. His case was dismissed months ago — at his request. Accordingly, we will deny Shuman’s petition for a writ of mandamus. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478193/ | OPINION
PER CURIAM.
Ralph Lysaire, a citizen of Haiti, became a lawful permanent resident of the United States in 1990. In 2004, he was convicted in New Jersey of conspiracy to distribute cocaine. In 2007, the Government charged Lysaire as removable for having committed an aggravated felony because of his drug trafficking crime. Conceding remov-ability, Lysaire sought relief from removal under the Convention Against Torture (“CAT”).
The Immigration Judge (“IJ”) denied Lysaire’s application. Lysaire appealed to the Board of Immigration Appeals (“BIA”) and also moved the BIA to remand the matter to the IJ for consideration of new evidence. The BIA dismissed the appeal, concluding that Lysaire did not establish his CAT claim. However, the BIA granted the motion to remand for the IJ to consider Lysaire’s additional evidence. On remand, the IJ considered reports of country conditions, statements of family members, Lysaire’s medical (including psychiatric) history, his criminal history, and testimony and documentary evidence from an expert witness, Michelle Karshan. The IJ again denied the CAT claim. The BIA dismissed Lysaire’s new appeal, holding that he had not shown that it was more likely than not that he would be tortured in Haiti.
Lysaire presents a petition for review, which the Government moves to dismiss for lack of jurisdiction. Because the basis for Lysaire’s removal is his conviction for an aggravated felony, the Court’s jurisdiction is limited by the REAL ID Act; however, the Court retains jurisdiction over constitutional claims and questions of law. See Pierre v. Attorney Gen. of the United States, 528 F.3d 180, 184 (3d Cir.2008) (en banc) (citing 8 U.S.C. *331§ 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Attorney Gen. of the United States, 473 F.3d 58, 63 (3d Cir.2007) (citing Kamara v. Attorney Gen. of the United States, 420 F.3d 202, 210-11 (3d Cir.2005), for the proposition that the “jurisdictional grant regarding appeals by aggravated felons extends not just to legal determinations but also to application of law to facts”). As the Government contends, we cannot revisit the factual findings in the record.1 However, through the two main arguments Lysaire details, he presents the legal question whether the BIA erred in concluding that he did not meet his burden to show his eligibility for CAT relief. Accordingly, we have jurisdiction over his petition. See, e.g., Pierre, 528 F.3d at 184.
Deferral of removal under CAT is mandatory if an alien can show that it is more likely than not that he or she will be tortured. See Pierre, 528 F.3d at 186 (citing 8 C.F.R. § 208.17(a)). An act is torture if it is inflicted, by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity, for obtaining information or a confession, for punishment, for intimidation or coercion, or for any reason based on discrimination of any kind. See id. at 189. The imprisonment of criminal deportees in Haiti in objectively deplorable brutal and harsh conditions generally does not constitute torture. See id. However, if authorities place an individual in such conditions in order to cause severe pain and suffering, such an act may rise to the level of torture if the other CAT requirements are met. See id. at 190.
Lysaire was not entitled to CAT relief merely because he is subject to detention as a criminal deportee on his return to Haiti, even though the conditions of detention in Haitian prisons are terrible. See Pierre, 528 F.3d at 189. However, Lysaire also claimed, as he notes on appeal, that he would face torture in prison because of his mental illness. As the IJ noted, Lysaire presented evidence of intermittent psychiatric episodes and psychological problems. (In the record are diagnoses of paranoid schizophrenia and polydrug dependence. See, e.g., R. 546. Although he had been treated with medicine in the past, Lysaire was not taking medicine when he appeared before the IJ. R. 439.) Nonetheless, Ly-saire did not meet the standard for CAT relief under prevailing law.
In addition to describing the conditions in Haiti and Haitian prisons generally, Ly-saire’s expert, Karshan, explained that mentally ill criminal deportees are held without food, water, medical care, or necessary medicines. R. 73, 87. There is no suicide watch system or empathy for those with mental illnesses. R. 73, 87-88. If a mentally ill prisoner brings medicine with him, he is left to self-medicate and is vulnerable to theft of his medicine. R. at 88. These conditions, while objectionable, are like those faced by all detainees; they are not targeted to Lysaire, as a person with a mental illness, in particular. Cf. Villegas v. Mukasey, 523 F.3d 984, 989 (9th Cir.2008) (holding that the conditions of the Mexican mental health system, which were created by “officials’ historical gross negligence and misunderstanding of the nature of psychiatric illness,” do not amount to torture).
Karshan also testified that Lysaire will be tortured by prison officials — for example, they will withhold his medication when they realize he needs it, “so they can elicit money from his family in exchange for his *332eventual release.” R. 220. Karshan stated that prison officials would think Lysaire and his family have money because they are from the United States. R. 219. (Most of Lysaire’s family came to the United States; his mother remains in Haiti, but Lysaire says that he is not in touch with her.) However, as the BIA concluded, based on Karshan’s testimony, any mistreatment would not be to discriminate, punish, or intimidate. It would be extortion for pecuniary gain.
Karshan also noted that mental illness is not accepted in Haitian culture and is sometimes attributed to voodoo. R. 90. She stated that other prisoners and prison staff discriminate against the mentally ill because they believe the afflicted are under a curse or a spell. R. 90. Lysaire continues to press that his mental illness and resulting behaviors will make him a target for abuse in detention. However, as the BIA noted, the 2007 Country Report on Human Rights Practice in the record (beginning on page 234), does not mention discrimination against the mentally ill (although it mentions the lack of food, water, sanitation, etc., in the overcrowded prisons). Given the Country Report and Karshan’s lack of testimony about how Ly-saire specifically would singled out for torture, the BIA did not err in concluding that Lysaire did not meet the requirements for CAT relief.
For these reasons, we deny the motion to dismiss and grant the motion to strike the extra-record evidence, and we will deny the petition for review.
. Furthermore, we cannot consider the new evidence that Lysaire seeks to submit. See 8 U.S.C. § 1252(b)(4); see also Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004). Accordingly, we grant the Government's motion to strike the extra-record evidence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478195/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Joe Sturkey appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Sturkey v. Ozmint, No. 8:07-cv-01502-MBS, 2009 WL 649569 (D.S.C. Mar. 11, 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/8478197/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Alvarez appeals the district court’s orders granting his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence and denying his motion to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915(c)(3) (2006). We have reviewed the record and find no reversible *339error.* Accordingly, we affirm for the reasons stated by the district court. United States v. Alvarez, No. 1:95-cr-00072-6 (S.D. W. Va. May 11, 2009; June 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.
We note that Alvarez has been permitted to proceed in forma pauperis on appeal, rendering moot his challenge to the district court’s denial of his motion to proceed on appeal in forma pauperis. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478201/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gregory Scott appeals the district court’s order denying his motion for reduction of sentence filed 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. Gregory, No 5:97-cr-00133-H-5 (E.D.N.C. Apr. 3, 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/8478203/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vincent Missouri petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motion for habeas corpus. He seeks an order from this court directing the district court to act. Our review of the district court proceedings reveals that the district court denied Missouri’s motion during the supervised release revocation proceedings. Accordingly, because the district court has recently decided Missouri’s case, we deny the mandamus petition as moot. 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/8478207/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derek N. Jarvis appeals the district court’s order dismissing his civil action for lack of jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jarvis v. GEICO Ins. Comp., No. 8:09-cv-02638-RWT, 2009 WL 3833964 (D.Md. Nov. 13, 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/8478208/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Moment appeals the district court’s order dismissing his civil complaint for lack of jurisdiction pursuant to the Rooker-Feldman doctrine.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Moment v. O’Malley, No. 8:09-cv-02209-AW (D.Md. filed Sept. 16, 2009; entered 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.
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478210/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jon J. Runge appeals the district court’s orders accepting the recommendations of the magistrate judge and denying relief on his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Runge v. Sanford, No. 6:08-cv-00231-GRA, 2009 WL 2601468 (Aug. 21 & 2009 WL 2601468, Oct. 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/8478212/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward L. Dutton appeals the district court’s order dismissing his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Dutton v. Montgomery County Maryland, No. 8:08-cv-03504-DKC, 2009 WL 2496844 (D.Md. Aug. 11, 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/8478214/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John F. Piwowarski appeals from the district court’s order denying his motion to reopen his case. We have reviewed the record and find no reversible error.* Accordingly, we affirm for the reasons stated by the district court. Piwowarski v. Morgan, No. 3:08-cv-00068-JPB-JES (ND.W.Va. Aug. 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.
Because Piwowarski's suit was dismissed without prejudice, Piwowarski may still refile his suit in the district court. As the district court has explained, Piwowarski must refile his suit as a new case and pay the appropriate fees. We express no opinion on the timeliness or merits of Piwowarski’s claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478217/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joliffe Lloyd King, a native and citizen of the United Kingdom, petitions for review of an order of the Board of Immigration Appeals (Board) finding him removable and ordering his removal from the United States. We have reviewed the administrative record and find that substantial evidence supports the Board’s conclusions. See Rodriguez v. Mukasey, 519 F.3d 773, 777 (8th Cir.2008). We accordingly deny the petition for review for the reasons stated by the Board. See In re: King (B.I.A. Apr. 24, 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478218/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Mullins appeals the district court’s orders denying her motion for leave to amend the complaint and granting the Appellees’ motion for summary judgment on Mullins’ claims of gender discrimination, First Amendment retaliation, and tortious interference with contract and economic relations. We have reviewed the record and find no reversible error. Ac*370cordingly, we affirm for the reasons stated by the district court. Mullins v. Mayor and City of Baltimore, No. 1:07-cv-02454-CCB, 2009 WL 248043 (D.Md. Jan. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478220/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sheldon Moore appeals from the district court’s order granting the Government’s Fed.R.Crim.P. 35(b) motion and reducing Moore’s term of imprisonment from 144 to 108 months and denying Moore’s motion for reconsideration. On appeal, Moore challenges the extent of the district court’s departure, which this court has no jurisdiction to consider, absent circumstances not here alleged. See United States v. Hill, 70 F.3d 321, 324 (4th Cir.1995). Accordingly, we deny Moore’s motions for appointment of counsel and for transcripts of the plea and sentencing hearings, and dismiss the appeal. 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/8478209/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Moment appeals the district court’s order dismissing his civil complaint for lack of jurisdiction pursuant to the Rooker-Feldman doctrine.* We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Moment v. O’Malley, No. 8:09-cv-02209-AW (D.Md. filed Sept. 16, 2009; entered 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.
Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478211/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jon J. Runge appeals the district court’s orders accepting the recommendations of the magistrate judge and denying relief on his 42 U.S.C. § 1988 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Runge v. Sanford, No. 6:08-cv-00231-GRA, 2009 WL 2601468 (Aug. 21 & 2009 WL 2601468, Oct. 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/8478213/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward L. Dutton appeals the district court’s order dismissing his civil action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Dutton v. Montgomery County Maryland, No. 8:08-cv-03504-DKC, 2009 WL 2496844 (D.Md. Aug. 11, 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/8478215/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John F. Piwowarski appeals from the district court’s order denying his motion to reopen his case. We have reviewed the record and find no reversible error.* Accordingly, we affirm for the reasons stated by the district court. Piwowarski v. Morgan, No. 3:08-cv-00068-JPB-JES (ND.W.Va. Aug. 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.
Because Piwowarski's suit was dismissed without prejudice, Piwowarski may still refile his suit in the district court. As the district court has explained, Piwowarski must refile his suit as a new case and pay the appropriate fees. We express no opinion on the timeliness or merits of Piwowarski’s claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478216/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joliffe Lloyd King, a native and citizen of the United Kingdom, petitions for review of an order of the Board of Immigration Appeals (Board) finding him removable and ordering his removal from the United States. We have reviewed the administrative record and find that substantial evidence supports the Board’s conclusions. See Rodriguez v. Mukasey, 519 F.3d 773, 777 (8th Cir.2008). We accordingly deny the petition for review for the reasons stated by the Board. See In re: King (B.I.A. Apr. 24, 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.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478221/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sheldon Moore appeals from the district court’s order granting the Government’s Fed.R.Crim.P. 35(b) motion and reducing Moore’s term of imprisonment from 144 to 108 months and denying Moore’s motion for reconsideration. On appeal, Moore challenges the extent of the district court’s departure, which this court has no jurisdiction to consider, absent circumstances not here alleged. See United States v. Hill, 70 F.3d 321, 324 (4th Cir.1995). Accordingly, we deny Moore’s motions for appointment of counsel and for transcripts of the plea and sentencing hearings, and dismiss the appeal. 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/8478225/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Leroy Darity appeals the district court’s order denying his motion for modification of sentence, 18 U.S.C. § 3582(c) (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. Darity, No. 1:95-cr-00132-LHT-1 (W.D.N.C. July 7, 2009). We dispense with oral argu*379ment 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/8478227/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre K. Waters, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge 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. Waters v. United States, No. 7:08-cv-00555-gee-mfu (W.D.Va. July 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/8478228/ | *381Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Jenkins, IV, appeals the district court’s order denying his motion to modify his 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. Jenkins, No. 3:99-cr-00021-MR-1 (W.D.N.C. June 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The district court’s order also denies odier motions filed by Jenkins, but Jenkins’ informal brief challenged only the denial of the § 3582(c) motion. "The Court will limit its review to the issues raised in the informal brief.” 4th Cir. R. 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478230/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William A. Murphey appeals the district court’s orders denying his motion to appoint counsel, denying relief on his 42 U.S.C. § 1983 (2006) complaint, and denying his Fed.R.Civ.P. 59(e) motion. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Murphey v. Maynard, No. 8:08-cv-01711-DKC (D. Md. filed Jan. 23, 2009 & entered Jan. 26, 2009; Mar. 16, 2009; filed Apr. 15, 2009 & entered Apr. 16, 2009). We deny Murphey’s motion for a transcript at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478232/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clarence Jefferson appeals the district court’s order denying his motion properly construed as one for modification of sentence, 18 U.S.C. § 3582(c) (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. Jefferson, No. 3:00-cr-00221-REP-1 (EJD.Va. May 14, 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 decision process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478237/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renee Imeh Okon appeals the district court’s order granting summary judgment to Defendants in this action arising under the Truth in Lending Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Okon v. Wells Fargo Home Mortgage, Inc., No. 8:08-cv-01058-RWT (D.Md. July 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/8478223/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Roberts appeals the district court’s order denying his motion for modification of sentence, 18 U.S.C. § 3582(c) (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. Roberts, No. 4:97-cr-00035-H-5 (E.D.N.C. Aug. 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/8478226/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andre K. Waters, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge 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. Waters v. United States, No. 7:08-cv-00555-gee-mfu (W.D.Va. July 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/8478229/ | *381Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luther Jenkins, IV, appeals the district court’s order denying his motion to modify his 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. Jenkins, No. 3:99-cr-00021-MR-1 (W.D.N.C. June 16, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
The district court’s order also denies odier motions filed by Jenkins, but Jenkins’ informal brief challenged only the denial of the § 3582(c) motion. "The Court will limit its review to the issues raised in the informal brief.” 4th Cir. R. 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478234/ | Affirmed by unpublished opinion. Judge DUNCAN wrote the opinion, in which Judge GREGORY and Judge BLAKE joined.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This is an appeal from a grant of summary judgment on a claim under the Miller Act, 40 U.S.C. § 3131 et seq. The Act requires general contractors who enter into contracts with the government to obtain bonds from sureties “for the protection of all persons supplying labor and material in carrying out the work provided for in the contract.” Id. § 3131(b)(2). Da-muth Services, Inc. (“Damuth”), a materi-alman, filed a claim under the Miller Act on a payment bond obtained by the general contractor after the subcontractor for which Damuth supplied material went out of business. The district court granted summary judgment to the general contractor’s surety on the bases of equitable es-toppel and unclean hands. Damuth now appeals. For the reasons that follow, we affirm.
I.
In September 2005, Viteri Construction Management, Inc. (“VCMI”), entered into a contract with the United States government to expand and modify an existing Coast Guard station in Chesapeake, Virginia (the “CAMSLANT” project). Because this contract was valued at more than $100,000, VCMI was required by the Miller Act to obtain a payment bond. Id. § 3131(b)(2). VCMI secured this bond *385from appellee Western Surety Co. (“Western”) in the amount of $2,675,738.00. VCMI’s owners, Carlos Viteri and his wife (the “Viteris”), guaranteed the bond personally.
As part of the CAMSLANT project, VCMI had to install new HVAC equipment. VCMI entered into a subcontract with H & L Mechanical, Inc. (“H & L”), to perform that work. H & L’s work was to be performed “in compliance with all [applicable] national, federal, state, and local codes.” J.A. 62. H & L, in turn, engaged the services of a materialman, Damuth, to supply the HVAC parts.
On November 16, 2006, Damuth supplied H & L with $160,205.85 in HVAC equipment and related support services. On November 21, 2006, H & L invoiced VCMI for $185,811.31 in work performed on the CAMSLANT project, which included Damuth’s amount. As part of its payment request, H & L signed a form that said:
I ... certify that payments, less applicable retainage, have been made (through the period covered by previous payments received from Viteri Construction Management, Inc.) to all my subcontractors, for all materials and labor used in, or in connection with the performance of this Contract.
Id. at 152. On January 5, 2007, VCMI paid H & L $185,811.31, the full amount requested. Rather than pay Damuth its invoiced amount, however, H & L applied the funds to debts owed on unrelated projects. H & L did this despite a self-recognized obligation to use the VCMI payment to pay Damuth.1
By February 15, 2007, Damuth had become concerned that it had not been paid, and arranged to meet with H & L to discuss the matter. At the meeting on February 27, Damuth learned that H & L had spent its invoiced amount paying off other debts and was, in fact, facing significant financial difficulties.
Damuth was generally aware that H & L was to use the payment from the CAM-SLANT project to pay Damuth for its work.2 Damuth, however, was persuaded that in order for H & L to make good on its debt, H & L would need “to continue doing business.” Id. at 120. Damuth therefore entered into an agreement with H & L over the repayment of monies owed. H & L agreed to pay Damuth on all debts owed for non-CAMSLANT project work, an amount that came to $6,031.22. H & L would also make a series of payments between April and September 2007, on the fifteenth of each month, until Damuth had been paid in full for the *386CAMSLANT project. In exchange, Da-muth agreed not to inform VCMI of H & L’s non-payment. Damuth also “re-serv[ed] [the] right to go to [VCMI]” if H & L did not keep its word. Id. at 124.
After the meeting, Damuth continued to perform work, but H & L never made a payment under their agreement. Meanwhile, H & L received an additional $105,000 from VCMI on CAMSLANT-re-lated work after the initial $185,811.31 payment. At least $33,024.88 of that money came after H & L met with Damuth on February 27, 2007.
On May 1, 2007, H & L met with Da-muth a second time to renegotiate their agreement. At that point, H & L agreed to pay Damuth $5,000 per week for thirty-four weeks, beginning on May 11, 2007, until Damuth had received $170,000. On May 16, 2007, however, H & L went out of business without ever making an installment payment. On June 5, 2007, Damuth gave notice to VCMI and its surety, Western, of its intent to make a claim upon the payment bond.
On January 17, 2008, Damuth filed a two-count complaint in the United States District Court for the Eastern District of Virginia. In Count I, Damuth requested judgment against Western in the amount of $161,020.65, plus interest and costs, as payment upon the bond for its performance on the CAMSLANT project. Count II incorporated the same request against H & L. H & L, who was properly served with the complaint, did not respond and the district court entered default judgment against it. Western filed an answer to the complaint, asserting several affirmative defenses, including the equitable doctrines of equitable estoppel and unclean hands. Western and Damuth thereafter filed cross-motions for summary judgment.
On January 21, 2009, the district court granted summary judgment to Western. The district court found that Damuth’s claim upon the bond was barred by equitable estoppel and unclean hands. First, the district court found that Damuth’s agreement to remain silent about H & L’s diversion of the CAMSLANT project payment was sufficient to invoke estoppel:
VCMI received money from the government, VCMI paid H & L in full for Damuth’s work on the [CAMSLANT] project, and H & L diverted that money to other creditors for matters unrelated to the contract with VCMI. Damuth was aware of these events and ... it agreed not to advise the general contractor in consideration of receiving funds for unrelated transactions.
J.A. 519. The district court also noted the injustice that would follow if Damuth were allowed to make a claim upon the bond, for it would require the Viteris, as personal guarantors of the bond to Western, to pay twice for the HVAC equipment.
Second, the court determined that H & L’s decision to apply the CAMSLANT project payments to unrelated debts was a criminal act in Virginia under Va.Code Ann. § 43-13, and so the district court reasoned that Damuth entered into an illegal bargain with H & L when it agreed to keep silent about H & L’s conduct. Since Damuth helped to conceal a criminal act and imposed a burden upon VCMI to pay monies it otherwise would not have to pay, the court concluded that Damuth’s claim was barred by unclean hands.
II.
On appeal, Damuth challenges the district court’s grant of summary judgment to Western, primarily arguing that the district court misapplied the doctrine of equi*387table estoppel.3 We review a district court’s grant of summary judgment de novo. Shipbuilders Council of Am. v. U.S. Coast Guard, 578 F.3d 234, 243 (4th Cir.2009). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). On summary judgment, we review the evidence in the light most favorable to the non-moving party. Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.2009).
It is well settled that equitable estoppel is a proper affirmative defense to a Miller Act claim. U.S. ex rel. Humble Oil & Ref. Co. v. Fidelity & Cas. Co. of N.Y., 402 F.2d 893, 897 (4th Cir.1968); Moyer v. U.S. ex rel. Trane Co., 206 F.2d 57, 60 (4th Cir.1953). To assert equitable estoppel, a defendant must show, as the first necessary element of the defense, that the plaintiff made a representation of fact that was misleading.4 Humble Oil, 402 F.2d at 898. The defendant need not show that the plaintiff practiced deception upon it; rather, the question is whether the plaintiff, having committed its actions, should be able to repudiate them. U.S. ex rel. Noland Co. v. Wood, 99 F.2d 80, 82-83 (4th Cir.1938).
Damuth maintains that the district court erred in finding its agreement with H & L to constitute a misleading representation. Damuth argues that, because the effect of its bargain was simply not to inform VCMI of H & L’s conduct, its conduct amounts to nothing more than “mere silence.” We need not resolve here the question of whether a finding of equitable estoppel can ever be premised solely on silence, however, for the facts here go beyond passive silence.
Our precedent under the Miller Act establishes that a materialman makes a misrepresentation by acting with the subcontractor to enable the subcontractor to mislead the general contractor and surety. In Moyer, for example, we said that a misrepresentation could be made out where a materialman provided falsified receipts to the subcontractor so that the subcontractor could obtain progress payments from the general contractor.5 206 F.2d at 60.
In United States ex rel. Gulfport Piping Co. v. Monaco & Son, Inc., 336 F.2d 636 *388(4th Cir.1964), we found equitable estoppel appropriate where a materialman acquiesced in a subcontractor’s misleading representation to the general contractor. In that case, Durant, the subcontractor, represented to Monaco and Son, the general contractor, that it was a fabricator of material. Unbeknownst to Monaco and Son, Gulfport Piping was the true fabricator, but it allowed Durant to put its own letterhead on all the bills of lading, freight bills, and packing tickets, which gave Monaco and Son the impression that Durant was the fabricator. Id. at 637-38. When Durant did not pay Gulfport Piping, the latter filed a claim upon Monaco and Son’s Miller Act bond. On appeal, we affirmed the district court’s application of equitable estoppel, reasoning that Monaco and Son had regarded Durant as the manufacturer and that Gulfport Piping “knew of and acquiesced in the misrepresentation.” Id. We found relevant the fact that, had Monaco and Son known that Gulfport Piping was the materialman and thus entitled to Miller Act protection if Durant did not pay, it would have acted differently.6 Id. at 639.
The same type of conduct that led us to find misleading representations in Moyer and Gulfport Piping occurred here. H & L had an obligation, of which Damuth was generally aware, to use the payment from VCMI to pay Damuth for its work on the CAMSLANT project. Damuth’s awareness of this obligation is evidenced by its belief that advising VCMI of H & L’s failure to pay would prevent H & L from being able to “continue doing business.” J.A. 120. Furthermore, this obligation, which was spelled out in the general contract,7 has been well recognized. For example, we have long declined to hold a surety liable unless the subcontractor applies payments to creditor materialmen on jobs for which the surety has provided the bond. See U.S. ex rel. Crane Co. v. Johnson, Smathers & Rollins, 67 F.2d 121, 123 (4th Cir.1933) (“[W]hen ... a payment is made by the debtor to the creditor with the identical money for the payment of which the surety is bound, or with the proceeds or fruits of the very contract, business, or transaction covered by the obligation of the surety, the application of the payment to some other debt, with or without the direction or consent of the debtor, does not bind the surety.”); see also U.S. ex rel. W. Chester Elec. & Elecs. Co., Inc. v. Sentry Ins., 774 F.2d 80, 85 (4th Cir.1985) (refusing liability to a surety when the general contractor paid the sub*389contractor and materialman with a joint check, as they had requested pursuant to a side deal relating to past debts between them, and the side deal went awry, because “the suret[y] cannot be held liable for the subsequent redirection of funds paid when the principal took proper steps to ensure payment”). This rule has been well understood to place an obligation on the subcontractor to apply payments to materialmen on related jobs only. Graybar, 387 F.2d at 59; U.S. ex rel. Hyland Elec. Supply Co. v. Franchi Bros. Constr. Corp., 378 F.2d 134, 137-38 (2d Cir.1967); St. Paul Fire & Marine Ins. Co. v. U.S. ex rel. Dakota Elec. Supply Co., 309 F.2d 22, 29-30 (8th Cir.1962); U.S. ex rel. Carroll v. Beck, 151 F.2d 964, 966 (6th Cir.1945).
H & L’s obligation is, moreover, codified by Virginia law, which criminalizes the actions of a subcontractor that diverts funds owed to a materialman on a particular job. See Va.Code. Ann. § 43-13. Contrary to Damuth’s contention, the fact that this statute may be prosecuted upon the filing of a complaint by the injured materialman does not undermine its consideration here, for the conduct at issue falls within the bounds of that which Virginia has deemed criminal. See Overstreet, 67 S.E.2d at 877 (“[Section 43-13] was enacted in the exercise of the police power, in that its object is the prevention of fraud and becomes a part of every contract covered by its terms.”).
In light of these legal and contractual obligations, Damuth’s conduct takes on an affirmative cast. When Damuth learned that H & L had disregarded its obligation, Damuth’s response was to strike a bargain with H & L, by which Damuth procured a consideration, i.e., payment, in exchange for a promise not to “tell.” When asked why Damuth would do such a thing, it answered, “so that [¶] & L] could make payments and continue doing business.” J.A. 120. Even viewing the evidence in the light most favorable to Damuth, the only logical inference of this exchange is that it enabled H & L to continue representing to VCMI that Damuth had been paid for the CAMSLANT project, and for H & L to continue accepting payments from VCMI. Damuth seeks to minimize the significance of the exchange, pointing out that it merely received funds which it was already owed. This overlooks the fact that the VCMI payment Damuth was to receive was gone, and Damuth had reason to believe no funds would be forthcoming. As the record makes clear, Damuth considered H & L’s renewed commitment to pay of sufficient significance to negotiate for it twice.
Moreover, Damuth gave value in the exchange. Prior to the agreement, Da-muth was free to inform VCMI of H & L’s conduct if it wished. The effect of the bargain was that Damuth bound itself not to do so. The record is undisputed that VCMI paid, and continued to pay, H & L for the CAMSLANT project with the understanding that H & L would pay its own subcontracting parties.8 H & L signed a form statement that it would apply monies received from VCMI to debts owed on the CAMSLANT project, and VCMI stated in a deposition that it relied on this representation when making payments. VCMI as*390serted, and Damuth did not dispute, that had VCMI known the truth, it would have taken materially different actions before H & L went out of business, for VCMI’s owners, the Viteris, were personally liable on the payment bond.
Damuth and H & L acted affirmatively in concert to cause VCMI to believe that H & L had discharged its obligation to pay for services rendered. This makes the bargain struck by Damuth analytically similar to the false receipts provided in Moyer, 206 F.2d at 60, and the misleading arrangement undertaken in Gulfport Piping, 336 F.2d at 639. In line with this precedent, Damuth’s conduct exceeds the bounds of mere silence, and is sufficient to satisfy the requirement of a misleading representation for purposes of the doctrine of equitable estoppel.9 See FDIC v. Harrison, 735 F.2d 408, 413 (11th Cir.1984) (stating that estoppel requires the presence of “words, acts, conduct or acquiescence causing another to believe in the existence of a certain state of things”); see also U.S. ex rel. Krupp Steel Prods., Inc. v. Aetna Ins. Co., 923 F.2d 1521, 1527 (11th Cir.1991) (“[T]he central notion of the estoppel defense is that A cannot either intentionally or negligently represent to B that one state of affairs exists ... and then pursue his normal statutory remedy when it becomes apparent that the state of affairs represented is inaccurate or false.”).
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
. H & L's president, John Hartman, testifled in a deposition as follows:
Q: Okay. At the time you knew, you being H & L and John Hartman, you knew this money, $185,811.31, that [VCMI] paid to H & L on January 5th, 2007, $160,205.85 was intended to pay Damuth Trane for its equipment?
A: Yes. Me [sic] being the president of H & L Mechanical knew that the money that came in needed to go to pay that invoice, correct.
J.A. 88.
. William Mitchell, the corporate representative for Damuth, testified in a deposition as follows:
Q: Okay. So Damuth knew that [¶] & L] had been paid for your supplies, right, your material?
A: Yes.
Q: Okay. And then was it Damuth’s understanding that once [VCMI] paid H & L the amount that was for your invoice, that H & L would just turn around and cut that money back to you?
A: That is a standard industry practice, yes.
J.A. 119.
. Damuth also challenges the district court’s application of unclean hands to its claim. We recognize that unclean hands and equitable estoppel are distinct doctrines, and that application of the former in this context presents a novel issue. We need not reach it, however, because our holding on equitable estoppel alone is sufficient to resolve this appeal.
. The defendant must also show reliance by the defendant on the representation, a change in position due to the reliance, and detriment as a result. Humble Oil, 402 F.2d at 898. Damuth has not raised any arguments concerning these other elements. In any event, we have reviewed the record carefully and are satisfied that Western met its burden of establishing each element. VCMI reasonably relied on the representation, made by H & L and left uncontradicted by Damuth, that H & L had met its own obligations. Based on that reliance, VCMI continued to make payments to H & L and, as a result, is now subject to the potential of double payment.
.Similarly, in Graybar Electric Co., Inc. v. John A. Volpe Construction Co., Inc., 387 F.2d 55 (5th Cir.1967), a subcontractor endorsed checks received from the general contractor to the materialman. The materialman then endorsed the checks back to the subcontractor so that the materialman could represent an artificial unpaid balance on its account, thereby allowing the subcontractor to obtain further progress payments from the general contractor. Id. at 56-57. The Fifth Circuit found that the materialman’s conduct amounted to a misrepresentation. Id. at 59.
. United States ex rel. Lincoln Electric Products Co., Inc. v. Greene Electrical Service of Long Island, Inc., 379 F.2d 207 (2d Cir.1967), upon which Damuth seeks to rely, is not to the contrary. In Lincoln Electric, the materi-alman, Lincoln Electric, performed work for a subcontractor, Greene. Greene never paid Lincoln Electric, despite receiving reimbursement from the prime contractor, McTeague. Lincoln Electric's only notice of the subcontractor Greene's nonperformance, however, was that a single check from Greene bounced. Id. at 209. When Greene went out of business, the Second Circuit allowed a Miller Act claim on McTeague's surety. Id. Significantly, the record reflected no knowledge by Lincoln Electric of any diversion of funds by Greene, and no collusive acts between Greene and Lincoln Electric to secure payments from McTeague. Id. at 210. Damuth can draw no comfort from such easily distinguishable facts.
. Beyond being a general criminal statute that would apply by its very terms, Va.Code Ann. § 43-13 was a part of this agreement, for H & L's subcontract included a clause requiring it to perform "in compliance with all [applicable] national, federal, state, and local codes.” J.A. 62. See Overstreet v. Commonwealth, 193 Va. 104, 67 S.E.2d 875, 877 (1951) (holding that contractors bargain with an understood knowledge of section 43-13’s existence, and that the statute "becomes a part of every contract covered by its terms”).
. Carlos Viteri testified as follows:
Q: ... You believe that you shouldn’t have to pay if VCMI has already paid H & L?
A: Right.
Q: Are there any ... facts that you believe would provide or would prevent you or release you from having to pay on Da-muth’s claim?
A: Based on what we received from H & L and what we expected to by contract, I have met my obligation.
J.A. 307.
. Damuth argues that if equitable estoppel is appropriate, then the district court erred in finding that estoppel was appropriate to bar its claim on the bond completely. Damuth contends that estoppel should only undercut its ability to claim two amounts, namely its full amount requested offset by either the $6,031.22 that it accepted from H & L for non-CAMSLANT work, or the $33,024.88 that H & L accepted from VCMI after the February 27 agreement. We decline to consider Damuth's contentions, for Damuth did not argue them to the district court. In the absence of extraordinary circumstances, we do not consider arguments made for the first time on appeal. Williams v. Prof’l. Transp. Inc., 294 F.3d 607, 614 (4th Cir.2002). No such circumstances are present here. In any event, as tire district court noted, Damuth is estopped by its conduct from bringing a claim on the bond. It therefore could not claim any amount. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478236/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Renee Imeh Okon appeals the district court’s order granting summary judgment to Defendants in this action arising under the Truth in Lending Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Okon v. Wells Fargo Home Mortgage, Inc., No. 8:08-cv-01058-RWT (D.Md. July 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/8478238/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Faust appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing without prejudice Faust’s 42 U.S.C. § 1983 (2006) complaint. On appeal, we confine our review to the issues raised in the informal brief. See 4th Cir. R. 34(b). In his brief, Faust fails to challenge the district court’s dispositive ruling that he did not exhaust administrative remedies. Accordingly, we find that Faust has forfeited appellate review of that issue and affirm the district court’s order. We deny Faust’s motion for a transcript at government expense and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478241/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Canady appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. The district court found that the drug offenses for which Canady was convicted involved more than 4500 grams of cocaine base, and thus a reduction was not warranted. Because our review of the record reveals no reversible error, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478243/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Owen Spellman appeals the district court’s order denying his post-judgment motion to withdraw his guilty plea. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Spellman, No. 3:08-cr-00107-HEH-1 (E.D.Va. Sept. 4, 2009). We dispense with oral argument because the facts and legal contentions are ade*404quately 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/8478247/ | *406Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Verdell Rashaan Jones appeals the district court’s order denying his 18 U.S.C. § 3582 (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. Jones, No. 3:00-cr-00230-JRS-1 (E.D.Va. 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/8478248/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexander Sherman McKenzie appeals the district court’s order denying his motion for relief from his criminal judgment, his motion for appointment of counsel, and his 18 U.S.C. § 3582(c)(2) (2006) motion to modify term of imprisonment. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. McKenzie, No. 1:97-cr-00203-MR-1, 2009 WL 4893112 (W.D.N.C. Dec. 10, 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/8478250/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Johnson appeals the district court’s order denying his motion in which he challenged a prior order denying relief on his Fed.R.Civ.P. 60(b) 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. Johnson, No. 3:93-cr-0007-RLW-6 (E.D.Va. Nov. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478240/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Canady appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for a reduction in sentence. The district court found that the drug offenses for which Canady was convicted involved more than 4500 grams of cocaine base, and thus a reduction was not warranted. Because our review of the record reveals no reversible error, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478242/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lorenzo Owen Spellman appeals the district court’s order denying his post-judgment motion to withdraw his guilty plea. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Spellman, No. 3:08-cr-00107-HEH-1 (E.D.Va. Sept. 4, 2009). We dispense with oral argument because the facts and legal contentions are ade*404quately 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/8478244/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell S. Merricks appeals the district court’s order denying his motion to recall the mandate. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Merricks, No. 1:06-cr-00419-LMB-1 (E.D.Va. Oct. 8, 2009). We deny Merricks’ motion for transcript at government expense.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478246/ | *406Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Verdell Rashaan Jones appeals the district court’s order denying his 18 U.S.C. § 3582 (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. Jones, No. 3:00-cr-00230-JRS-1 (E.D.Va. 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/8478251/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Calvin Johnson appeals the district court’s order denying his motion in which he challenged a prior order denying relief on his Fed.R.Civ.P. 60(b) 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. Johnson, No. 3:93-cr-0007-RLW-6 (E.D.Va. Nov. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478252/ | *414Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tralane Lee Horsley appeals the district court’s order denying his 18 U.S.C. § 3582 (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. Horsley, No. 1:05-cr-00546-JCC-1 (E.D.Va. Nov. 3, 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/8478258/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cleveland Darnell Copeland appeals the district court’s denial of his motions for 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. Copeland, No. 8:00-cr-00424-PJM-15 (D.Md. Aug. 20, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478260/ | PER CURIAM: *
Antonio D. Fisher, federal prisoner # 07949-043, appeals the district court’s denial of his motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2), based upon the amendments United States Sentencing Guidelines that reduced the base offense levels for offenses involving crack cocaine. See United States v. Doublin, 572 F.3d 235, 236 (5th Cir.), cert. denied, - U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). Fisher was convicted following a jury trial of distributing crack *544cocaine and was sentenced to a 168-month term of imprisonment.
Fisher argues that the district court abused its discretion in denying his motion for a reduction in sentence. He acknowledges that district courts may consider post sentencing behavior when deciding § 3582(c)(2) motions, but he argues that the district court should not have denied his motion solely on the basis of his post sentencing conduct.
“Section 3582(c)(2) permits a district court to reduce a term of imprisonment ... if such a reduction is consistent with the policy statements issued by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.1997). Although § 3582(c) directs the court to consider the sentencing factors of 18 U.S.C. § 3553(a), the reasonableness standard derived from United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), does not apply under § 3582(c)(2). See United States v. Evans, 587 F.3d 667, 671-72 (5th Cir.2009), petition for cert. filed (Jan. 28, 2010) (No. 09-8939). The sentencing court is under no obligation to reduce the sentence at all. Evans, 587 F.3d at 673. We review the decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion. United States v. Cooley, 590 F.3d 293, 295 (5th Cir.2009).
In exercising its discretion under § 3582 (c)(2), the district court is instructed to consider (1) the § 3553 (a) factors, (2) “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment” and (3) “post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.” U.S.S.G. § 1B1.10, comment, (n. 1(B)(ii) — (iii)). The district court may also consider the mov-ant’s record of prison misconduct. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.2010). In denying Fisher’s motion, the district court expressly considered these factors, emphasizing Fisher’s criminal history and that Fisher had numerous prison disciplinary infractions. The district court did not abuse its discretion in declining to reduce Fisher’s sentence. See Cooley, 590 F.3d at 295.
AFFIRMED.
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/8478261/ | PER CURIAM: *
The attorney appointed to represent Tashandla Jackson 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). Jackson has filed a response and a motion for the appointment of new appellate counsel. Jackson’s motion is denied.
Our independent review of the record, counsel’s brief, and Jackson’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478264/ | ORDER
Geraldine Buckhanon, the legal guardian of J.H., applied in early 2005 for Supplemental Security Income on the minor girl’s behalf. Buckhanon asserted that J.H. suffers from “mental health problems,” learning and cognitive impairments, and speech and language deficits. The Social Security Administration denied benefits at all stages, and a magistrate judge, presiding by consent, upheld the agency’s determination. On appeal, Buckhanon argues that the Administrative Law Judge ignored or mischaraeterized important evidence and failed to explain her conclusions. We uphold the denial of benefits.
J.H. was 8 years old in 2003 when she saw her mother suffer a seizure and die. By the end of 2004 her pediatrician had referred J.H. for psychological evaluation because of reported difficulties with learning, behavior, and attention. When he first examined J.H. in November of that year, psychologist Stanley Rubinstein observed that her affect, speech, and thought processes were all within normal limits. He soon concluded, though, that she suffered from adjustment disorder with depressed mood, and throughout 2005 and 2006 he remarked on what he saw as J.H.’s illogical or slow responses to questions, immature and defiant behavior, short attention span, fantastic thought, guardedness, and unreliability as a narrator. These traits suggested to him that she might also suffer from attention deficit hyperactivity disorder or oppositional defiant disorder. He characterized J.H. as “sexually precocious” and noted that she had told him that she was molested by a relative at age 8. But while Dr. Rubinstein did document setbacks and behavioral problems at home and school, he also observed a trend of improving behavior and goal-directed thoughts, especially in 2006.
*676In June 2005, when Buckhanon’s application for benefits was pending, Dr. Rubinstein referred J.H. to a psychiatrist for evaluation of her “unrealistic” and “fantasy laden” thoughts. J.H. told the psychiatrist that at times her dead mother and Satan spoke to her. But she was cooperative and alert, and the psychiatrist observed that she displayed average intelligence and clear thought processes. He diagnosed major depression with psychotic features and post-traumatic stress disorder, and he prescribed Ritalin and Risperdal for dis-traetibility and irritability.
Later that same month a state-agency psychologist reviewed the medical record and opined that J.H.’s impairments did not meet or medically equal any of the listings of impairments in 20 C.F.R. pt. 404, subpt. P, App. 1. The psychologist acknowledged that J.H. exhibited a “marked” limitation in the functional domain of “attending and completing tasks” but concluded that her limitations in other domains were less than marked. A state-agency colleague seconded this opinion.
For reasons unexplained in the record, in August 2006 Buckhanon switched from Dr. Rubinstein to Freda Mitchell, a therapist at Aurora Family Service. J.H. reported that she enjoyed sex, which she said she’d had at ages 9 and 10. During two months of treatment, Mitchell documented that J.H. denied being anxious but appeared to process little of what occurred during their sessions, and was easily distracted and focused on sex. Mitchell suspected sexual abuse and difficulty adjusting to stress. But she also noted that J.H. sometimes appeared jovial while relating news of successes at school. A psychiatrist at the clinic, Dr. Hilary Wynn, also evaluated J.H. and diagnosed post-traumatic stress disorder but concluded that psychotropic medication was unnecessary and would not be helpful. She noted that J.H. was “functioning relatively well in school” and was not exhibiting aggression or a lack of control. Her mood was good, her speech and grooming normal, and her insight fair, but she did evidence obsessive tendencies and poor judgment. When asked, J.H. denied experiencing the auditory hallucinations reported earlier.
Throughout this period, school officials were working with J.H. In March 2004, a special-education team had drafted an initial Individualized Education Plan — a plan created for students qualifying for assistance under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415— describing academic delays and difficulty with friendships and staying on task. A second IEP was formulated in January 2005. This time, J.H.’s evaluators noted her distractibility, social immaturity, and behavioral outbursts. The school psychologist also remarked on J.H.’s failure to develop meaningful relationships, her poor motivation, and her “scattered” functioning. The IEP acknowledged that J.H. met only two out of three necessary criteria for cognitive disability, but designated her as having some “other health impairment.” A new IEP in January 2007 documented “extremely inappropriate” and “significantly more severe” verbal and physical behaviors that teachers said impeded her learning. The record also includes one teacher questionnaire, filled out in 2005, documenting some of J.H.’s difficulties in activities from the domains listed in 20 C.F.R. § 416.926a(b)(l).
At her healing before the ALJ in May 2007, at which counsel represented the plaintiff-appellant, J.H., by then age 12, testified that she had no trouble with personal hygiene, grooming, or keeping her room clean. When asked about school, she said that she was doing “[a]ll right,” although she conceded that she didn’t enjoy math. She testified that she had received grades of B and C on her most-recent *677report card and volunteered no difficulties at school. She said she sometimes got into fights that prompted write-ups or phone calls to her grandmother but noted that these incidents occurred less frequently than before. She admitted getting a detention for running through the halls in 2006 but described no similar incidents since that time. She also reported that she once drank beer found in the refrigerator, that she had consumed alcohol given to her by her grandmother the previous Christmas, and that at age 7, when her mother was alive, she had used marijuana.
J.H. told the ALJ that she had friends whom she played with at school and in the neighborhood. Her favorite activities included basketball, playing with friends, and watching television, and she said she was attending an after-school program where she did homework and participated in organized activities. There were no difficulties getting along with teachers, students, or family, she said, except that her brother sometimes got “on [her] nerves” and she had a rivalry with one girl at school. J.H. added that she was bene-fitting “a little bit” from participating in group therapy at Aurora Psychiatric Hospital. J.H. had been attending that program since February 2007, and a psychiatrist there had diagnosed her with a mood disorder.
Buckhanon testified that, other than one suspension in 2006, she knew of no disciplinary problems at school and no recent problems with truancy. She confirmed that J.H. maintained her hygiene and grooming, played and did homework in the after-school program, and spent time outdoors with other neighborhood children. She admitted giving J.H. alcohol at Christmas.
When asked directly why she thought J.H. was disabled, Buckhanon said only that she sometimes had difficulty understanding what J.H. was saying. She conceded, however, that she had not sought to have J.H. evaluated or treated for speech or language deficits. She then reiterated that J.H. had witnessed her mother’s death and explained that J.H. dreamed about and missed her. She asserted that J.H. moved around a lot in bed, but she did not know if this meant J.H. did not sleep well. When asked if there was anything else Buckhanon wished to add about J.H., she said no. With prompting from counsel, however, she recalled that J.H. had at some point consumed dog food and once claimed to have eaten some cat food. She noted J.H.’s interest in sex, but said that problems with neighborhood boys had been cleared up when Buckhanon’s boyfriend spoke with their parents; there were no further questions on this topic. Buckhanon never described hallucinations, defiance, or cognitive deficits.
At closing, the primary argument by counsel for the plaintiff-appellant was that the “very intensive treatment” J.H. received was something “they wouldn’t be giving her unless she was feeling seriously impaired.” No experts testified.
The ALJ applied the 3-step analysis (as opposed to the 5-step analysis used for adults) to determine whether J.H. qualified for disability benefits. See 20 C.F.R. § 416.924(a); Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir.2009). The ALJ concluded, first, that J.H. had not been engaged in substantial gainful activity and, second, that she suffered from a combination of impairments that was severe: post-traumatic stress disorder, adjustment disorder, depression, mood disorder, attention deficit disorder, obsessive compulsive disorder, reactive attachment disorder, and antisocial personality disorder. Further, the ALJ noted that J.H. suffered from asthma, allergic rhinitis, and dermatitis. At step three, however, the ALJ found that J.H.’s impairments did not *678meet or medically equal a listed impairment, see 20 C.F.R. pt. 404, subpt. P, App. 1, nor did they functionally equal a listing, because her limitations in all functional domains, see 20 C.F.R. § 416.926a(b)(l), were less than marked.
The Appeals Council denied Buckha-non’s request for review, and a magistrate judge upheld that final decision. Buckha-non filed treatment notes from Aurora Psychiatric Hospital in 2007 with the Appeals Council, but she conceded at oral argument in this court that the notes are not properly part of the record for our review. We therefore omit a recitation of the information contained in them.
On appeal, Buckhanon argues that the ALJ ignored or mischaracterized key evidence and failed to justify the conclusions she reached. We will overturn the Commissioner’s final decision only if it lacks support by substantial evidence, is grounded in legal error, or is too poorly articulated to permit meaningful review. Hopgood, 578 F.3d at 698. Although ALJs need not address every piece of evidence in detail, they must address significant evidence and explain why strong evidence favorable to the claimant is overcome by the other evidence. Giles ex rel. Giles v. Astrue, 483 F.3d 483, 488 (7th Cir.2007); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.2001).
Buckhanon first takes aim at a finding that the ALJ did not make explicitly; she argues that SSR 96-7p required the ALJ to make express findings about the credibility of both Buckhanon and J.H. It is plain, however, that the ALJ believed the testimony of both J.H. and Buckhanon. And although credibility findings should be express and reasoned, see Giles, 483 F.3d at 488; Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002), that preference is designed to force ALJs to proceed cautiously before rejecting specific portions of a claimant’s testimony as not credible, see Golembiewski v. Barnhart, 322 F.3d 912, 915-16 (7th Cir.2003). Here, it is evident from the briefing that plaintiff-appellant’s counsel appreciates that the testimony elicited from J.H. and Buckhanon was less than helpful, and we do not see how the claimants could have been prejudiced by the ALJ’s decision not to give a detailed explanation for her obvious reliance on their testimony.
J.H.’s testimony paints a picture of a child who, despite several difficulties, performs reasonably well in school and exhibits mostly unsurprising behaviors in and out of the home. And as for Buckhanon, she accurately concedes in her brief that during her testimony she “could not really articulate her granddaughter’s difficulties.” Only one of her remarks, that she often cannot understand J.H.’s conversation, is arguably inconsistent with the ALJ’s decision. But this vague assertion, coupled with the absence of any evidence that anyone other than Buckhanon shared this difficulty, is not the sort of significant testimony that an ALJ is required to grapple with at length. And at the ALJ hearing, counsel expressed no surprise about the testimony of J.H. or her grandmother and made no effort to impeach either. At this late stage, Buckhanon cannot deploy SSR 96-7p to attack the ALJ’s reliance on her own and J.H.’s testimony.
Next, Buckhanon argues that the ALJ provided no rationale for her finding that J.H.’s combination of impairments did not meet or medically equal any of the listings of impairments in 20 C.F.R. pt. 404, subpt. P, App. 1. Although the ALJ cited the listings she considered and discussed the evidence of J.H.’s impairments in separate parts of the decision, Buckhanon treats the finding as unreasoned because the ALJ did not incorporate that information within a single paragraph. There is no requirement of such tidy packaging, however; we read the ALJ’s deci*679sion as a whole and with common sense. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.2004); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000). The cases Buckhanon invokes, Barnett v. Barnhart, 381 F.3d 664 (7th Cir.2004), and Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783 (7th Cir.2003), do not help her because those cases turned on an ALJ’s failure to discuss critical evidence of medical equivalence, and that did not happen here.
Alternatively, Buckhanon contends that the ALJ lacked sufficient opinion evidence from experts to decide on medical equivalence. At oral argument, Buckhanon conceded that both state-agency consultants had opined without contradiction that J.H. did not suffer from impairments that met or medically equaled a listing. But she argued that the ALJ was compelled by SSR-96-6p to arrange sua sponte for a third medical expert to assess the impact of evidence generated after the state-agency consultants reviewed the medical record in June 2005, or else to recontact one of the original consultants for an updated opinion on medical equivalence. Yet SSR 96-6p requires an ALJ to secure another expert opinion only when, “in the opinion of the administrative law judge,” new evidence might cause the initial opinion to change. SSR 96-6p, 1996 WL 374180, at *4.
In any event, although ALJs bear some responsibility for developing the administrative record, see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir.2009); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.2000), they are also free to assume that a claimant represented by counsel has presented her strongest case for benefits, see Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.2007); Glenn v. Sec’y of Health and Hitman Servs., 814 F.2d 387, 391 (7th Cir.1987). Buckhanon, acting through counsel, knew already in 2005 that the state-agency consultants did not think that J.H. was disabled. And yet Buckhanon never presented an opinion on medical equivalence from those who treated J.H., nor did she ask the ALJ to recontact the state-agency consultants. All the while, however, Buckhanon was gathering other evidence for the record. The appropriate inference is that Buckhanon decided that another expert opinion would not help her. Given that inference and the record before us, we cannot conclude that the ALJ erred or that any putative error was harmful. The ALJ expressly relied upon the medical judgment of the state-agency consultants, and their uncontradicted opinions constitute substantial evidence, see Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir.2004); Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir.1989), especially given that J.H.’s medical providers have remained silent on the question, see Scheck, 357 F.3d at 701; Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir.1988).
Buckhanon then argues that the ALJ inadequately justified her finding that J.H.’s impairments did not functionally equal a listing. A child’s impairments will functionally equal a listing if they result in either a “marked” limitation in at least two of six enumerated domains of functioning, or an “extreme” limitation in at least one. 20 C.F.R. § 416.926a; Brindisi, 315 F.3d at 785. A “marked” limitation interferes “seriously” with a child’s ability to initiate, sustain, or complete activities in the domain, and an “extreme” limitation interferes “very seriously.” 20 C.F.R. § 416.926a(e)2, 3; Hopgood, 578 F.3d at 699.
Buckhanon concentrates on four of the six enumerated domains, mounting her strongest challenge to the ALJ’s finding that J.H.’s limitations in the domain of “attending and completing tasks” were less than marked. As Buckhanon observes, the state-agency consultants reported *680marked limitations in this domain, but the ALJ found otherwise without addressing their position. Yet if this omission was an error, it was harmless. The opinions of the state-agency consultants suggest only a “marked” limitation, not an “extreme” one, so a remand would help only if Buck-hanon could point to a second with marked limitations, which she cannot.
The ALJ’s treatment of the other domains discussed by Buckhanon is satisfactory. Buckhanon contends that the ALJ erred in the domain of “interacting and relating with others” by mischaracterizing the record as showing that, overall, J.H.’s condition was improving. But this conclusion is not a mischaracterization. Although the record does not tell a pat story of unmitigated improvements, there is nothing wrong with the ALJ’s overall assessment, particularly in light of the testimony given by J.H. and her grandmother.
The same is true about the ALJ’s evaluation of the domain of “acquiring and using information.” Buckhanon argues that the ALJ focused exclusively on J.H.’s intellectual capacity and ignored evidence that her behavioral difficulties limit her use of the information she acquires. Yet the ALJ recognized both that J.H.’s behavior was a “major reason” for her academic difficulties, and that she was getting help for that behavior. J.H.’s testimony, together with Buckhanon’s, confirmed that she was bene-fitting from treatment, that her behaviors were not particularly severe, and that, aside from some difficulty in math, things were going “all right” in school. In fact, as the ALJ observed, J.H. was formally tested in January 2005 before significant treatment had begun, and already then she was functioning in the “low average range.” So there is nothing illogical about the ALJ’s conclusion that, “on balance,” J.H.’s limitations were less than marked.
As for the domain of “caring for yourself,” Buckhanon contends that the ALJ erred by failing to address serially a catalog of instances of J.H.’s poor judgment. But the ALJ remarked generally on J.H.’s “immaturity and poor judgment,” and specifically on J.H.’s interest in sex, as well as her two experiments with alcohol and her use of marijuana four or five years before the hearing. The ALJ determined that, “on the whole,” these concerns did not outweigh J.H.’s testimony about her good hygiene, self-management, and participation in community activities and sports. There was no need to address each piece of evidence individually. See Giles, 483 F.3d at 488; Zurawski, 245 F.3d at 889. Buckhanon further contends that the ALJ engaged in baseless speculation in this domain by remarking that J.H. can manage her daily activities “when she wants to.” But Buckhanon’s contention is belied by her and J.H.’s own testimony.
Because the ALJ relied on substantial evidence in the record, especially testimony from J.H. and Buckhanon, and because the ALJ logically articulated the connection between that evidence and her conclusions, we uphold the denial of benefits.
The judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478265/ | ORDER
Research Automation, Inc. (“RAI”) sued Schrader-Bridgeport International, Inc. (“SBI”) in Illinois state court for breach of contract. SBI then filed a mirror-image suit against RAI in Virginia state court. After both cases were removed to their respective federal district courts, RAI filed a motion in the Illinois district court to enjoin SBI from prosecuting its suit in Virginia. SBI then moved in the Illinois action to transfer the case to the Virginia district court pursuant to 28 U.S.C. § 1404(a). After the Illinois district court denied the requested injunction and granted the motion to transfer, RAI filed an interlocutory appeal with this court challenging the district court’s decision, which we denied based on a lack of jurisdiction to hear appeals arising from § 1404(a) transfer orders. RAI now petitions for a panel rehearing.
*683Per 28 U.S.C. § 1292(a)(1), we have jurisdiction over the district court’s denial of the preliminary injunction, and because the district court’s decision to transfer the case is inextricably intertwined with the denial of the injunction, we will exercise pendent jurisdiction over the district court’s order transferring the case to Virginia as well. Accordingly, we vacate our previous order.
I. BACKGROUND
On February 6, 2009, RAI filed suit in Illinois state court against SBI, alleging that SBI breached a contract with RAI. On February 23, 2009, SBI filed its own suit against RAI in Virginia state court alleging a breach of the same agreement.1 Each case was subsequently removed to federal court on the basis of diversity jurisdiction: SBI removed the Illinois suit to the United States District Court for the Northern District of Illinois on February 27, 2009, and RAI removed the Virginia action to the United States District Court for the Western District of Virginia on March 23, 2009. On March 24, 2009, one day after removing the Virginia action, RAI filed a motion in Illinois to enjoin SBI from prosecuting its action in Virginia. Two days later, on March 26, 2009, SBI moved to transfer the case to the Virginia court pursuant to 28 U.S.C. § 1404(a).2 On April 27, 2009, the Illinois court, in a single order, both denied RAI’s motion for an injunction and granted SBI’s motion to transfer. RAI appealed that decision, and we asked RAI to submit a jurisdictional statement. On September 9, 2009, we entered an order dismissing the appeal for lack of jurisdiction, relying on Hill v. Potter, 352 F.3d 1142, 1144 (7th Cir.2003), which held that appellate courts generally lack jurisdiction to hear appeals stemming from orders transferring a case to another federal district court pursuant § 1404(a). RAI now petitions for a panel rehearing, alleging that the denial of its motion for an injunction is appealable under 28 U.S.C. § 1292(a)(1), and maintaining that we should review the § 1404(a) transfer decision as well under principles of pendent jurisdiction.
II. ANALYSIS
Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to hear appeals from “interlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions.” The statute is “decently plain: all interlocutory orders denying injunctions are appealable.” Holmes v. Fisher, 854 F.2d 229, 231 (7th Cir.1988). The district court’s order analyzed and expressly denied RAI’s request for an injunction, and we therefore have jurisdiction to hear an appeal of that denial per 28 U.S.C. § 1292(a)(1).
SBI agrees that the order denied RAI’s motion for injunction, but argues that the true substance and effect of the order was to grant SBI’s motion to transfer venue, which is unreviewable. SBI’s argument is foreclosed by the language of the jurisdiction statute.3 While it is true that the *684district court accurately viewed the analysis of the injunction motion and the transfer motion as interdependent, the fact of the matter is that it reviewed and ruled on the injunction request, giving rise to jurisdiction over that ruling under the plain language of § 1292(a)(1).4
Having found jurisdiction over the injunction ruling, the issue becomes whether or not we should exercise jurisdiction over the § 1404(a) transfer ruling as well. Generally, a decision by a district court regarding a § 1404(a) transfer motion is a non-reviewable interlocutory order. Hill, 352 F.3d at 1144. The doctrine of pendent appellate jurisdiction, however, permits us to review an otherwise unappealable interlocutory order if it is “inextricably intertwined with an appealable one.” Montano v. City of Chicago, 375 F.3d 593, 599 (7th Cir.2006) (quoting Jones v. InfoCure Corp., 310 F.3d 529, 536 (7th Cir.2002)). Here, the injunction and transfer rulings in the district court’s order are inextricably intertwined. Both RAI’s motion for an injunction and the district court’s transfer order concern the same sole issue: whether or not this case should be litigated in Virginia. This presents a situation in which we therefore deem it prudent to exercise pendent appellate jurisdiction over the § 1404(a) transfer order.
SBI cites Jones, where we declined to exercise pendent jurisdiction over a § 1404(a) transfer order after finding appellate jurisdiction over an order denying a preliminary injunction. 310 F.3d at 537. Jones was an entirely different situation, however. There, the preliminary injunction and transfer orders involved “quite distinct” issues that could be “resolved without reference to each other.” Id. Here, in contrast, the issues in the injunction and transfer completely overlap and cannot be resolved independently.5 Because the two orders in this case are “inextricably intertwined” we will invoke the discretionary doctrine of pendent appellate jurisdiction and exercise jurisdiction over the § 1404(a) transfer order. See id. at 536; see also Greenwell v. Aztar Indiana Gaming Corp., 268 F.3d 486, 491 (7th Cir.2001).
In so doing, however, we are mindful of the concern in Jones that “[i]t would be quite inappropriate for us to open the door to an end-run around ... jurisdictional limitations for every case in which a ruling on injunctive relief is subject to interlocutory review.” 310 F.3d at 537. This case, however, presents a situation in which an exercise of pendent jurisdiction is prudent. *685We note that in this case RAI sought to enjoin the Virginia action before SBI sought a transfer. While that fact does not necessarily establish the bona fides of RAI’s motion, this does not appear to be a situation where a party simply filed an injunction in a naked attempt to obtain appellate review of a transfer decision via § 1292(a)(1).6 Given the current posture of the Illinois and Virginia actions, were we to instead decline jurisdiction over the transfer ruling and only review the injunction denial, a potentially bizarre outcome could result.
III. CONCLUSION
We Vaoate our previous order dismissing this appeal for lack of jurisdiction. We find that we have jurisdiction under § 1292(a)(1) to hear an appeal regarding RAI’s request for a preliminary injunction and choose to exercise pendent jurisdiction to hear its appeal regarding the § 1404(a) motion to transfer venue to the Virginia district court. The parties are instructed to submit briefs as to these two issues according to the following schedule: appellant’s brief by April 5, 2010; appellee’s brief by May 5, 2010; and appellant’s reply brief by May 19, 2010.
. The parties agree that these suits are mirror images of each other, with the exception that the federal Virginia action also names Paschal Associates, Inc. as a defendant.
. 28 U.S.C. § 1404(a) states: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
. This case is unlike Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.1999), where the court found that it lacked appellate jurisdiction because of the district court’s insistence that the "transfer is really the basis of everything.” The Missouri court was confronted with a situation where "[ajlthough the court's written order recited that the State’s request for a preliminary injunction was denied, it contained no findings *684of fact and conclusions of law supporting the denial of an injunction.” Id. Here, in contrast, the district court engaged in a full legal and factual analysis of RAI’s motion for preliminary injunction request before even turning to SBI's transfer motion.
. We note the Eighth Circuit's observation that Congress would have to modify the language of § 1292(a)(1) if it wanted to "eliminate [jurisdiction over] injunctions relating to prosecution of lawsuits in transfer situations.” Emerson Elec. Co. v. Black and Decker Mfg. Co., 606 F.2d 234, 237 n. 7 (8th Cir.1979).
. Other circuits have similarly found that pendent jurisdiction over a § 1404(a) transfer motion is warranted when the transfer and preliminary injunction orders are sufficiently closely related. See Harvey Specialty & Supply, Inc. v. Anson Flowline Equip., Inc., 434 F.3d 320, 325 (5th Cir.2005) ("If the requested injunction is to prevent the opposing party from litigating in a particular forum, an order transferring the action to that forum is immediately appealable because it has the effect of denying the injunction”); Midwest Motor Express, Inc. v. Central States Southeast & Southwest Areas Pension Fund, 70 F.3d 1014, 1016 (8th Cir.1995) (review of transfer order available when the transfer order and the denial of the injunction are "inextricably bound up with each other”); Ukiah Adventist Hosp. v. F.T.C., 981 F.2d 543, 548 (D.C.Cir.1992); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir.1987).
. In such situations, an appellate court might well decline to reward an appellant’s attempt at an "end-run" effort to obtain review of a § 1404(a) order by declining jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478270/ | ORDER
Darren D’Wayne Morris sued a number of prison officials, claiming that he missed meals, showers, and recreation time because his hearing disability prevented him from complying with prison rules. The district court granted summary judgment for the defendants. We affirm.
*688The facts are uncontested. Morris is a Wisconsin prisoner who was housed in the segregation unit at the Waupun Correctional Institution in August 2006. (He was transferred to Columbia Correctional Institution in October 2006.) Prisoners in segregation at Waupun were alerted to receive their meals, showers, and other essentials by an audio tone sounded over the intercom. If a prisoner did not stand at his cell door when the tone sounded, prison officials assumed that he was refusing the meal or shower. Because Morris suffered from hearing loss in both ears, and at the time had only one functional hearing aid, he could not always hear the tone; he says he missed out on 17 meals between August 4 and August 27. He also sometimes missed showers and recreation, and on eight occasions was not given his medication. (Morris took three prescriptions to treat depression, psychosis, and a fungal infection on his foot.) Morris alerted prison officials numerous times that he had a hearing impairment, requesting a placard for his door so that he would not miss meals or medication. A placard was placed on his door on August 21, though he continued to miss a few meals after that date.
Morris sued for damages and injunctive relief under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134. He claimed that the defendants knew about his disability but deliberately disregarded his needs by passing him over for meals and medication. Morris also claimed that the prison’s policy requiring him to respond to an audio cue in order to get essential needs violated the ADA, which prohibits discrimination in the provision of public services. 42 U.S.C. § 12132; Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006). He sought damages under the ADA for deprivation of food and medicine, and injunctive relief requiring Waupun to redesign lunchroom facilities to ensure that those with hearing disabilities would be safe even though they could not respond to an audible alarm.
The district court granted summary judgment to the defendants. The court concluded that missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the Eighth Amendment. Moreover, the court concluded that Morris had not established that the defendants were deliberately indifferent to his needs for food and medicine, and that the prison officials were at most negligent. As for the ADA claims, the court concluded that his request for injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an Eighth Amendment claim doomed his request for damages, which are available under Title II only for constitutional violations.
On appeal, Morris contends that the district court improperly granted summary judgment for the defendants. He maintains that a genuine issue exists concerning how seriously he was affected by missing food and medicine. He also contends that his request for injunctive relief was not moot because, as a prisoner serving a life sentence, he is likely to be transferred back to Waupun at some later point.
The Eighth Amendment requires prison officials to provide adequate food, clothing, shelter, and medical care to prisoners. Fanner v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sain v. Wood, 512 F.3d 886, 893 (7th Cir.2008). To establish an Eighth Amendment violation, a prisoner must show that he has been severely harmed and that prison officials were deliberately indifferent to that harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.2006). This requires that prison officials knew about a substantial risk of *689harm to the inmate and refused to act to prevent that harm. Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008). Mere negligence—even gross negligence—does not violate the Constitution. Lee v. Young, 533 F.3d 505, 509 (7th Cir.2008).
Morris argues that his weight loss while in segregation belies the district court’s conclusion that he suffered no serious harm. But as the district court noted, he was examined five times by medical staff during his 24-day stay in segregation, and the staff noted no serious medical problem related to weight loss or otherwise caused • by missing food or medicine. Whether or not the 17-day delay in placing the placard outside his cell suggests a failure to provide adequate care, Morris cannot establish a constitutional violation because he has not shown that missing his meals or medicine caused serious harm or lasting detriment. See Freeman v. Berge, 441 F.3d 543, 547 (7th Cir.2006) (concluding that even a 45-pound weight loss would not support a claim without evidence of serious suffering or lasting harm); Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003) (upholding jury’s finding that missing one week of HIV medication did not cause serious injury); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 811-12 (7th Cir.2000) (concluding that missing some doses of medicine was not a constitutional violation without showing of serious harm).
As for his ADA claims, although Morris correctly notes that Title II applies to prisoners, see Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000), the district court correctly rejected his request for injunctive relief. “[Wjhen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner’s claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.2004); see also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996). Morris was transferred to Columbia in October 2006, and he needed to provide more than just his conjecture of a possible return to Waupun to stave off dismissal for mootness. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.1988).
But his claim for damages based on past conduct is not mooted by his transfer. Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). The district court correctly recognized that Title II creates a private cause of action for damages against states for conduct that violates the Fourteenth Amendment, and so Title II abrogates state sovereign immunity at least for those claims that independently violate the Constitution. United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006); Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 874 (7th Cir.2006). As the district court properly stated, though, Morris’s inability to establish an Eighth Amendment claim forecloses this avenue for relief.
But the district court did not note that in Georgia the Court left open the question whether the ADA could validly abrogate sovereign immunity for non-constitutional violations. 546 U.S. at 159, 126 S.Ct. 877. In reserving this question, the Court instructed lower courts to determine in the first instance, claim by claim, whether Congress’s purported abrogation of sovereign immunity is valid when the challenged conduct violates the ADA but not the Constitution. Georgia, 546 U.S. at 159, 126 S.Ct. 877.
But Title II only provides for damages if a public official intentionally discriminates because of disability. See Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. *690Ross, 486 F.3d 267, 278 (7th Cir.2007); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002); Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002). And Morris has not shown that any discrimination he suffered was intentional. Prison officials initially subjected him to their policy requiring prisoners in segregation to respond to an audio cue. But Morris’s complaints about not being able to hear the audio cue were heeded by the prison administrators, who placed a placard outside his cell to alert guards that he had a hearing disability, and the administrators followed up by sending the guards a memorandum regarding his condition. The fix was simple, low-cost, low-tech, and effective to boot — within days Morris stopped missing meals. One wonders why then it took seventeen days to implement. Prison officials’ initial failure to accommodate Morris’s disability might at worst constitute negligence, but negligence alone cannot support a Title II claim. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) (concluding that bureaucratic negligence would not establish intentional discrimination). Because Morris presented no evidence to support a damages claim under the ADA for intentional discrimination, we need not reach the question whether the ADA validly abrogates Wisconsin’s sovereign immunity.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478272/ | ORDER
Jimmy Alexander pleaded guilty to defrauding the Federal Emergency Management Agency (FEMA) out of thousands of dollars in emergency aid intended for victims of Hurricane Katrina. The district court sentenced him to 57 months’ imprisonment, nearly twice the high end of his guidelines range. The judge explained that he imposed an above-range sentence in part because he believed the guidelines understated the seriousness of the crime. Alexander appeals, contending that rejecting the guidelines based on a “policy disagreement” was error. He also contends that his sentence is unreasonably high.
Alexander was the least of FEMA’s concerns when it established Katrina Relief, a program to administer emergency aid to Gulf Coast residents whose homes were damaged or destroyed by Hurricane Katrina. Alexander was not a resident of the Gulf Coast, let alone the head of a household there. He lived in Indianapolis, some 800 miles safely away from the flood zone, and the record suggests that’s where he was on August 29, 2005, the day the hurricane hit Louisiana. This, however, did not dissuade him from filing an application for emergency aid with Katrina Relief. In his application and in subsequent requests, he stated that his primary residence in New Orleans was damaged in the storm, and that he intended to avail himself of the full menu of relief options — expedited housing assistance, expedited rental assistance, and personal property assistance. A record check later revealed that the property identified on his application belonged to his mother. Alexander hatched the scheme with his girlfriend, also a resident of Indiana, and together, between September 2005 and December 2006, they squeezed FEMA for $22,450.01 in relief money — all from the comfort of Indianapolis.
Alexander pleaded guilty to conspiring to steal public monies, see 18 U.S.C. § 371, and the district court proceeded at sentencing to calculate his guidelines range. To his base offense level of six, see U.S.S.G. § 2Bl.l(a)(2), the court added six additional levels: four for the amount stolen, and two because his fraud involved the theft of money intended for disaster relief. Because Alexander quickly admitted his guilt, the court subtracted two levels under § 3E1.1, bringing his total offense level to 10. The court then turned to his criminal history, which, it noted, was “extraordi*692nary” for a man under 40. Since turning 18 two decades earlier, Alexander accumulated 26 criminal history points, twice the number needed to put him in category VI at the top of the chart. Alexander’s offenses span a range of criminal conduct: three convictions involving theft and receipt of stolen goods; five convictions relating to controlled substances; two convictions for resisting law enforcement; and a battery conviction for shooting someone in the neck. Alexander’s offense level and criminal history category yielded an imprisonment range of 24 to 30 months, and it was within that range that both Alexander and the government urged the court to impose a sentence. But the district judge had other ideas.
After considering the factors set forth in 18 U.S.C. § 3553(a), the judge concluded that an above-range sentence was necessary because the guidelines enhancements for emergency-relief fraud failed to reflect the seriousness of Alexander’s crime. The judge described the crime as “the lowest of the low.” Alexander, the judge explained, set out to profit from “the most generous instincts of American life.” Worse yet, he and those guilty of similar crimes might well frustrate the distribution of emergency aid in the future, since a hesitant relief program is more likely to be an ineffectual one. The judge continued: “I said before in another case [United States v. King, No. 07 CR 16 (S.D. Ind. filed Jan. 30, 2007) ] involving theft of Katrina funds that what was required was swift, severe and visible punishment.” As additional support for the sentence, he noted that Alexander’s criminal history category failed to represent adequately his criminal record. To have amassed 26 criminal history points in twenty years, the judge noted, Alexander must have been “committing crimes whenever [he was] not in prison as an adult.” The ultimate sentence imposed, 57 months, was just 3 months shy of the statutory maximum.
Alexander’s argument on appeal is somewhat elusive. He contends that the district court unreasonably based its above-range sentence on a categorical disagreement with the guidelines governing fraud rather than the specific characteristics of Alexander’s crime. In his opening brief he characterizes this argument as a substantive challenge — a claim that a general policy disagreement with the penal theories embodied in the guidelines does not justify a sentence substantially above the range. But in his reply brief he recasts the argument as a procedural challenge. He argues there that it is an open question whether the district court had the authority, under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and its progeny, to categorically reject the fraud guidelines in the first place.
Whatever its label, the argument fails: after Kimbrough, a sentencing judge is no longer bound by the penal theories that inform the guidelines, and may substitute a theory of his own if doing so would advance the aims of the § 3553(a) sentencing factors. See Spears v. United States, — U.S. -, -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009); Kimbrough, 552 U.S. at 101-02, 128 S.Ct. 558; Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Aguilar-Huerta, 576 F.3d 365, 366-67 (7th Cir.2009); United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir.2009); see also United States v. Carera, 550 F.3d 180, 194-95 (2nd Cir.2008); United States v. Tankersley, 537 F.3d 1100, 1114 n. 12 (9th Cir.2008). In this case, after calculating the guidelines range and considering the sentencing factors, the district judge was not persuaded that the advisory range reflected the gravity of the crime. In other words, the judge consulted the guidelines before determining that a higher sentence would better advance *693the objectives of the sentencing factors— precisely the approach prescribed by the Supreme Court. See Rita, 551 U.S. at 351, 127 S.Ct. 2456; United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009).
Alexander also argues that his above-range sentence risks creating unwarranted disparities among defendants who have been convicted of similar conduct. For support, he cites two Fifth Circuit cases in which defendants received lighter sentences for similar Katrina-fraud conduct. See United States v. Conroy, 567 F.3d 174 (5th Cir.2009); United States v. Taylor, 582 F.3d 558 (5th Cir.2009). It is true that sentencing judges should strive for uniformity among similarly situated defendants. 18 U.S.C. § 3553(a)(6); United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009). But for a disparity to be “unwarranted,” the sample of defendants must include not only those who have been found guilty of similar conduct but also those with similar records. 18 U.S.C. § 3553(a)(6); United States v. Schmitt, 495 F.3d 860, 862 (7th Cir.2007). What Alexander is missing is evidence that defendants with comparable criminal records who steal relief money tend to receive more favorable sentences. In this case, Alexander’s criminal history was, in the words of the district judge, “extraordinary”; not even Category VI, he observed, came close to expressing the depth and breadth of his record. We agree. Accordingly, an above-range sentence was reasonable. See United States v. Groves, 559 F.3d 637, 642-43 (7th Cir.2009); United States v. Jackson, 547 F.3d 786, 794 (7th Cir.2008).
Alexander also tries to distinguish his situation from United States v. King, 506 F.3d 532, 536-37 (7th Cir.2007), an Anders case the government contends is on point. The defendant in King pleaded guilty to using false social security numbers to steal Katrina relief funds and was sentenced to 105 months’ imprisonment, 34 months above the top of the guidelines range. King, 506 F.3d at 534. In granting appellate counsel’s motion to withdraw, we conclude that a challenge to the defendant’s above-range sentence would be frivolous. Alexander points out that the fraud at issue in King was far more elaborate than his, and that while the net sentence in King was higher than the one he received, the percentage increase over the guidelines range was smaller. While these distinctions are notable, King still supports the government’s position, if only because the reasons supplied by the district court for imposing an above-range sentence— the failure of the guidelines to reflect both the defendant’s criminal history and the reprehensible nature of his crime — largely tracked those supplied here.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478274/ | ORDER
Michael Dupoy pleaded guilty to one count of receiving child pornography. See 18 U.S.C. § 2252A(a)(2). His offense level and criminal history score would have yielded a guidelines imprisonment range of 360 months to life, but the statutory maximum for his crime was 20 years. See id. § 2252A(b)(l). The district court sentenced him to 220 months. The court imposed a below-range term based on Du-poy’s assertion that he was molested as a child by his father, but the judge was unwilling to give him the 120-month term he requested.
Dupoy appeals his sentence, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Du-poy did not respond to counsel’s motion. See Cm. R. 51(b). We limit our review to the potential issues counsel explores in his facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Dupoy has not expressed a desire to challenge his guilty plea, so counsel does not examine whether the plea was voluntary or the plea colloquy was adequate. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel recognizes that it would be frivolous to argue that the district court committed procedural error at sentencing. The court calculated the guidelines range correctly but did not treat it as mandatory. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court addressed all of Dupoy’s arguments for a lower sentence and also evaluated the sentencing factors outlined in 18 U.S.C. § 3553(a). In analyzing the nature of Dupoy’s offense and his personal characteristics, see id. § 3553(a)(1), the court noted that he possessed more than 1,500 images of child pornography and disseminated at least 700 images to other pedophiles, that he was enthusiastic about downloading images despite knowing it was illegal, that some of the images were egregious even in the context of child pornography, that he engaged in this conduct over an extended period of time, that the children depicted were victims, even if Du-poy did not have contact with them himself, that he claimed his father had physically and sexually abused him, and that he had a substantial criminal record. The court also emphasized that its sentence had to protect the public from Dupoy. See id. § 3553(a)(2)(C).
Counsel next acknowledges that it would be frivolous for Dupoy to argue that his prison sentence is unreasonable. Although the district court highlighted many aggravating factors, the court still imposed a sentence below the guidelines range, and we presume that sentence to be reasonable. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009); United States v. Anderson, 580 F.3d 639, 651 (7th Cir.2009). Given the district court’s thoughtful application of the § 3553(a) factors, Dupoy cannot rebut that presumption. See United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009).
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/8478275/ | PER CURIAM.
Harold R. Stanley appeals the district court’s1 separate orders dismissing his civil complaint. After careful review of the record and the parties’ briefs, we conclude that dismissal was proper for the reasons stated in the district court’s orders. We affirm. See 8th Cir. R. 47B.
. The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478278/ | PER CURIAM.
General Parker appeals the district court’s1 dismissal of his 42 U.S.C. § 1983 *709action alleging violations of various constitutional rights arising from his divorce and custody dispute. Upon de novo review, see Goss v. City of Little Rock, 90 F.3d 306, 308 (8th Cir.1996), we find no error in the district court’s dismissal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478280/ | PER CURIAM.
Gilarime Mueller appeals the district court’s1 judgment entered after a jury found him guilty of conspiring to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Mueller’s counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the convictions were not supported by the evidence; that the district court erred in not reducing the offense level under Spears v. United States, - U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam), based on the disparity between powder cocaine and cocaine base; that the court erred in enhancing the sentence for obstruction of justice; and that the court erred in denying the motion to suppress evidence obtained during the search of Mueller’s residence. Mueller seeks appointment of new counsel and has filed a pro se brief, in which he argues that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it attributed 4.5 kilograms of cocaine base to him; that there was no proof supporting the drug quantity found by the court; and that his sentence violated the Eighth Amendment.
We hold that the evidence was sufficient to support Mueller’s conviction on both counts. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008) (this court reviews sufficiency of evidence in light most favorable to government, resolving evidentiary conflicts in government’s favor and accepting all reasonable inferences that support jury’s verdict). Four cooperating witnesses testified that they bought cocaine base from Mueller, or participated with Mueller in an arrangement to buy cocaine base or to buy powder cocaine and convert it to cocaine base. See United States v. Cruz, 285 F.3d 692, 700 (8th Cir.2002) (to prove conspiracy, government must prove existence of agreement to achieve illegal purpose, and defendant’s knowledge of agreement and knowing participation in conspiracy). Other testimony *711showed that Mueller had been present during the cooking, at his residence, of 39.54 grams of cocaine base later seized by police. See United States v. Parker, 587 F.3d 871, 881 (8th Cir.2009) (to sustain conviction for possession with intent to distribute, government must prove defendant knowingly possessed and intended to distribute drugs); United States v. Mendoza, 421 F.3d 663, 668-69 (8th Cir.2005) (elements of aiding and abetting possession with intent to distribute are that defendant associated himself with possession of drugs with intent to distribute, he participated in this activity as something that he wished to bring about, and he sought by his action to make this activity succeed). All of the cooperating witnesses testified about their plea agreements and their hopes for reduced sentences in return for their cooperation. See United States v. Foxx, 544 F.3d 943, 950 (8th Cir.2008) (credibility determinations are well within province of jury), cert. denied, — U.S. -, 130 S.Ct. 91, 175 L.Ed.2d 63 (2009); United States v. McKay, 431 F.3d 1085, 1094 (8th Cir.2005) (impeachment evidence was for jury to consider).
We also hold that counsel’s Spears argument fails, as the district court addressed the powder/crack cocaine disparity and found that it did not warrant any correction in this case, see United States v. Johnson, 574 F.3d 570, 573 (8th Cir.2009) (district court did not err where it acknowledged its power to vary from the Guidelines to address powder/crack cocaine disparity and chose not to); and that the district court did not err in imposing an enhancement for obstruction of justice, based on its findings that Mueller had attacked an inmate who could have testified against him at sentencing, see U.S.S.G. § 3C1.1 comment. (n.l) (adjustment applies if obstructive conduct occurred with respect to investigation, prosecution, or sentencing of instant offense); United States v. Thompson, 210 F.3d 855, 860-61 (8th Cir.2000) (obstruction enhancement based on fact-finding is reviewed for clear error; attempt to intimidate or threaten witness is sufficient for enhancement).
We further hold that the district court did not err in denying Mueller’s motion to suppress, as the evidence supported the court’s findings that there was probable cause for the warrant to search Mueller’s residence and that the seizure of the residence while waiting for the warrant was reasonable. See Illinois v. McArthur, 531 U.S. 326, 330-33, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (factors for determining whether seizure pending warrant was reasonable); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (probable-cause determination); United States v. Clarke, 564 F.3d 949, 958 (8th Cir.) (standard of review for denial of suppression motion), cert. denied, — U.S. —, 130 S.Ct. 651, — L.Ed.2d - (2009).
As to the pro se arguments, we conclude that the district court’s drug-quantity finding (1) did not violate Apprendi, as Mueller was sentenced within the applicable statutory maximum, see 530 U.S. at 490, 120 S.Ct. 2348; (2) was properly based on the preponderance-of-the-evidence standard, as the court applied advisory Guidelines, see United States v. Hines, 472 F.3d 1038, 1040 (8th Cir.2007) (per curiam); and (3) was amply supported by the testimony of co-conspirator Andrew Sullivan. We further conclude that Mueller’s 380-month sentence neither violated the Eighth Amendment, given the large quantity of cocaine base involved and Mueller’s criminal history, see United States v. James, 564 F.3d 960, 964 (8th Cir.), cert. denied, — U.S. -, 130 S.Ct. 433, 175 L.Ed.2d 297 (2009), nor constituted an abuse of discretion, see United States v. Feemster, 572 F.3d 455, 461 (8th *712Cir.2009) (en banc) (listing factors that constitute abuse of discretion).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment is affirmed, counsel is granted leave to withdraw, and Mueller’s motion for new counsel is denied.
. The Honorable John A. Jarvey, United Slates District Judge for the Southern District of Iowa. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478311/ | ON MOTION
ORDER
The court treats Thomas S. Ross’s motion for leave to file his brief out of time as a motion to reinstate his appeal. The United States takes no position on the motion.
Ross’s appeal was dismissed on September 28, 2009 for failure to file a brief.
Ross has now submitted his brief.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. The September 28 dismissal order is vacated, the mandate is recalled, and the appeal is reinstated.
(2) The United States should calculate the due date for his brief from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478257/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlin Rainey appeals the district court’s order denying his “Request for Nunc Pro Tunc and Amended Judgment.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rainey, No. 1:95-cr-00387-TSE-3 (E.D. Va. filed Oct. 21, 2009; entered Oct. 22, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478262/ | PER CURIAM: *
The attorney appointed to represent Tashandla Jackson 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). Jackson has filed a response and a motion for the appointment of new appellate counsel. Jackson’s motion is denied.
Our independent review of the record, counsel’s brief, and Jackson’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478263/ | ORDER
Geraldine Buckhanon, the legal guardian of J.H., applied in early 2005 for Supplemental Security Income on the minor girl’s behalf. Buckhanon asserted that J.H. suffers from “mental health problems,” learning and cognitive impairments, and speech and language deficits. The Social Security Administration denied benefits at all stages, and a magistrate judge, presiding by consent, upheld the agency’s determination. On appeal, Buckhanon argues that the Administrative Law Judge ignored or mischaraeterized important evidence and failed to explain her conclusions. We uphold the denial of benefits.
J.H. was 8 years old in 2003 when she saw her mother suffer a seizure and die. By the end of 2004 her pediatrician had referred J.H. for psychological evaluation because of reported difficulties with learning, behavior, and attention. When he first examined J.H. in November of that year, psychologist Stanley Rubinstein observed that her affect, speech, and thought processes were all within normal limits. He soon concluded, though, that she suffered from adjustment disorder with depressed mood, and throughout 2005 and 2006 he remarked on what he saw as J.H.’s illogical or slow responses to questions, immature and defiant behavior, short attention span, fantastic thought, guardedness, and unreliability as a narrator. These traits suggested to him that she might also suffer from attention deficit hyperactivity disorder or oppositional defiant disorder. He characterized J.H. as “sexually precocious” and noted that she had told him that she was molested by a relative at age 8. But while Dr. Rubinstein did document setbacks and behavioral problems at home and school, he also observed a trend of improving behavior and goal-directed thoughts, especially in 2006.
*676In June 2005, when Buckhanon’s application for benefits was pending, Dr. Rubinstein referred J.H. to a psychiatrist for evaluation of her “unrealistic” and “fantasy laden” thoughts. J.H. told the psychiatrist that at times her dead mother and Satan spoke to her. But she was cooperative and alert, and the psychiatrist observed that she displayed average intelligence and clear thought processes. He diagnosed major depression with psychotic features and post-traumatic stress disorder, and he prescribed Ritalin and Risperdal for dis-traetibility and irritability.
Later that same month a state-agency psychologist reviewed the medical record and opined that J.H.’s impairments did not meet or medically equal any of the listings of impairments in 20 C.F.R. pt. 404, subpt. P, App. 1. The psychologist acknowledged that J.H. exhibited a “marked” limitation in the functional domain of “attending and completing tasks” but concluded that her limitations in other domains were less than marked. A state-agency colleague seconded this opinion.
For reasons unexplained in the record, in August 2006 Buckhanon switched from Dr. Rubinstein to Freda Mitchell, a therapist at Aurora Family Service. J.H. reported that she enjoyed sex, which she said she’d had at ages 9 and 10. During two months of treatment, Mitchell documented that J.H. denied being anxious but appeared to process little of what occurred during their sessions, and was easily distracted and focused on sex. Mitchell suspected sexual abuse and difficulty adjusting to stress. But she also noted that J.H. sometimes appeared jovial while relating news of successes at school. A psychiatrist at the clinic, Dr. Hilary Wynn, also evaluated J.H. and diagnosed post-traumatic stress disorder but concluded that psychotropic medication was unnecessary and would not be helpful. She noted that J.H. was “functioning relatively well in school” and was not exhibiting aggression or a lack of control. Her mood was good, her speech and grooming normal, and her insight fair, but she did evidence obsessive tendencies and poor judgment. When asked, J.H. denied experiencing the auditory hallucinations reported earlier.
Throughout this period, school officials were working with J.H. In March 2004, a special-education team had drafted an initial Individualized Education Plan — a plan created for students qualifying for assistance under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415— describing academic delays and difficulty with friendships and staying on task. A second IEP was formulated in January 2005. This time, J.H.’s evaluators noted her distractibility, social immaturity, and behavioral outbursts. The school psychologist also remarked on J.H.’s failure to develop meaningful relationships, her poor motivation, and her “scattered” functioning. The IEP acknowledged that J.H. met only two out of three necessary criteria for cognitive disability, but designated her as having some “other health impairment.” A new IEP in January 2007 documented “extremely inappropriate” and “significantly more severe” verbal and physical behaviors that teachers said impeded her learning. The record also includes one teacher questionnaire, filled out in 2005, documenting some of J.H.’s difficulties in activities from the domains listed in 20 C.F.R. § 416.926a(b)(l).
At her healing before the ALJ in May 2007, at which counsel represented the plaintiff-appellant, J.H., by then age 12, testified that she had no trouble with personal hygiene, grooming, or keeping her room clean. When asked about school, she said that she was doing “[a]ll right,” although she conceded that she didn’t enjoy math. She testified that she had received grades of B and C on her most-recent *677report card and volunteered no difficulties at school. She said she sometimes got into fights that prompted write-ups or phone calls to her grandmother but noted that these incidents occurred less frequently than before. She admitted getting a detention for running through the halls in 2006 but described no similar incidents since that time. She also reported that she once drank beer found in the refrigerator, that she had consumed alcohol given to her by her grandmother the previous Christmas, and that at age 7, when her mother was alive, she had used marijuana.
J.H. told the ALJ that she had friends whom she played with at school and in the neighborhood. Her favorite activities included basketball, playing with friends, and watching television, and she said she was attending an after-school program where she did homework and participated in organized activities. There were no difficulties getting along with teachers, students, or family, she said, except that her brother sometimes got “on [her] nerves” and she had a rivalry with one girl at school. J.H. added that she was bene-fitting “a little bit” from participating in group therapy at Aurora Psychiatric Hospital. J.H. had been attending that program since February 2007, and a psychiatrist there had diagnosed her with a mood disorder.
Buckhanon testified that, other than one suspension in 2006, she knew of no disciplinary problems at school and no recent problems with truancy. She confirmed that J.H. maintained her hygiene and grooming, played and did homework in the after-school program, and spent time outdoors with other neighborhood children. She admitted giving J.H. alcohol at Christmas.
When asked directly why she thought J.H. was disabled, Buckhanon said only that she sometimes had difficulty understanding what J.H. was saying. She conceded, however, that she had not sought to have J.H. evaluated or treated for speech or language deficits. She then reiterated that J.H. had witnessed her mother’s death and explained that J.H. dreamed about and missed her. She asserted that J.H. moved around a lot in bed, but she did not know if this meant J.H. did not sleep well. When asked if there was anything else Buckhanon wished to add about J.H., she said no. With prompting from counsel, however, she recalled that J.H. had at some point consumed dog food and once claimed to have eaten some cat food. She noted J.H.’s interest in sex, but said that problems with neighborhood boys had been cleared up when Buckhanon’s boyfriend spoke with their parents; there were no further questions on this topic. Buckhanon never described hallucinations, defiance, or cognitive deficits.
At closing, the primary argument by counsel for the plaintiff-appellant was that the “very intensive treatment” J.H. received was something “they wouldn’t be giving her unless she was feeling seriously impaired.” No experts testified.
The ALJ applied the 3-step analysis (as opposed to the 5-step analysis used for adults) to determine whether J.H. qualified for disability benefits. See 20 C.F.R. § 416.924(a); Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir.2009). The ALJ concluded, first, that J.H. had not been engaged in substantial gainful activity and, second, that she suffered from a combination of impairments that was severe: post-traumatic stress disorder, adjustment disorder, depression, mood disorder, attention deficit disorder, obsessive compulsive disorder, reactive attachment disorder, and antisocial personality disorder. Further, the ALJ noted that J.H. suffered from asthma, allergic rhinitis, and dermatitis. At step three, however, the ALJ found that J.H.’s impairments did not *678meet or medically equal a listed impairment, see 20 C.F.R. pt. 404, subpt. P, App. 1, nor did they functionally equal a listing, because her limitations in all functional domains, see 20 C.F.R. § 416.926a(b)(l), were less than marked.
The Appeals Council denied Buckha-non’s request for review, and a magistrate judge upheld that final decision. Buckha-non filed treatment notes from Aurora Psychiatric Hospital in 2007 with the Appeals Council, but she conceded at oral argument in this court that the notes are not properly part of the record for our review. We therefore omit a recitation of the information contained in them.
On appeal, Buckhanon argues that the ALJ ignored or mischaracterized key evidence and failed to justify the conclusions she reached. We will overturn the Commissioner’s final decision only if it lacks support by substantial evidence, is grounded in legal error, or is too poorly articulated to permit meaningful review. Hopgood, 578 F.3d at 698. Although ALJs need not address every piece of evidence in detail, they must address significant evidence and explain why strong evidence favorable to the claimant is overcome by the other evidence. Giles ex rel. Giles v. Astrue, 483 F.3d 483, 488 (7th Cir.2007); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir.2001).
Buckhanon first takes aim at a finding that the ALJ did not make explicitly; she argues that SSR 96-7p required the ALJ to make express findings about the credibility of both Buckhanon and J.H. It is plain, however, that the ALJ believed the testimony of both J.H. and Buckhanon. And although credibility findings should be express and reasoned, see Giles, 483 F.3d at 488; Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002), that preference is designed to force ALJs to proceed cautiously before rejecting specific portions of a claimant’s testimony as not credible, see Golembiewski v. Barnhart, 322 F.3d 912, 915-16 (7th Cir.2003). Here, it is evident from the briefing that plaintiff-appellant’s counsel appreciates that the testimony elicited from J.H. and Buckhanon was less than helpful, and we do not see how the claimants could have been prejudiced by the ALJ’s decision not to give a detailed explanation for her obvious reliance on their testimony.
J.H.’s testimony paints a picture of a child who, despite several difficulties, performs reasonably well in school and exhibits mostly unsurprising behaviors in and out of the home. And as for Buckhanon, she accurately concedes in her brief that during her testimony she “could not really articulate her granddaughter’s difficulties.” Only one of her remarks, that she often cannot understand J.H.’s conversation, is arguably inconsistent with the ALJ’s decision. But this vague assertion, coupled with the absence of any evidence that anyone other than Buckhanon shared this difficulty, is not the sort of significant testimony that an ALJ is required to grapple with at length. And at the ALJ hearing, counsel expressed no surprise about the testimony of J.H. or her grandmother and made no effort to impeach either. At this late stage, Buckhanon cannot deploy SSR 96-7p to attack the ALJ’s reliance on her own and J.H.’s testimony.
Next, Buckhanon argues that the ALJ provided no rationale for her finding that J.H.’s combination of impairments did not meet or medically equal any of the listings of impairments in 20 C.F.R. pt. 404, subpt. P, App. 1. Although the ALJ cited the listings she considered and discussed the evidence of J.H.’s impairments in separate parts of the decision, Buckhanon treats the finding as unreasoned because the ALJ did not incorporate that information within a single paragraph. There is no requirement of such tidy packaging, however; we read the ALJ’s deci*679sion as a whole and with common sense. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.2004); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000). The cases Buckhanon invokes, Barnett v. Barnhart, 381 F.3d 664 (7th Cir.2004), and Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783 (7th Cir.2003), do not help her because those cases turned on an ALJ’s failure to discuss critical evidence of medical equivalence, and that did not happen here.
Alternatively, Buckhanon contends that the ALJ lacked sufficient opinion evidence from experts to decide on medical equivalence. At oral argument, Buckhanon conceded that both state-agency consultants had opined without contradiction that J.H. did not suffer from impairments that met or medically equaled a listing. But she argued that the ALJ was compelled by SSR-96-6p to arrange sua sponte for a third medical expert to assess the impact of evidence generated after the state-agency consultants reviewed the medical record in June 2005, or else to recontact one of the original consultants for an updated opinion on medical equivalence. Yet SSR 96-6p requires an ALJ to secure another expert opinion only when, “in the opinion of the administrative law judge,” new evidence might cause the initial opinion to change. SSR 96-6p, 1996 WL 374180, at *4.
In any event, although ALJs bear some responsibility for developing the administrative record, see Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir.2009); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.2000), they are also free to assume that a claimant represented by counsel has presented her strongest case for benefits, see Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.2007); Glenn v. Sec’y of Health and Hitman Servs., 814 F.2d 387, 391 (7th Cir.1987). Buckhanon, acting through counsel, knew already in 2005 that the state-agency consultants did not think that J.H. was disabled. And yet Buckhanon never presented an opinion on medical equivalence from those who treated J.H., nor did she ask the ALJ to recontact the state-agency consultants. All the while, however, Buckhanon was gathering other evidence for the record. The appropriate inference is that Buckhanon decided that another expert opinion would not help her. Given that inference and the record before us, we cannot conclude that the ALJ erred or that any putative error was harmful. The ALJ expressly relied upon the medical judgment of the state-agency consultants, and their uncontradicted opinions constitute substantial evidence, see Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir.2004); Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir.1989), especially given that J.H.’s medical providers have remained silent on the question, see Scheck, 357 F.3d at 701; Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir.1988).
Buckhanon then argues that the ALJ inadequately justified her finding that J.H.’s impairments did not functionally equal a listing. A child’s impairments will functionally equal a listing if they result in either a “marked” limitation in at least two of six enumerated domains of functioning, or an “extreme” limitation in at least one. 20 C.F.R. § 416.926a; Brindisi, 315 F.3d at 785. A “marked” limitation interferes “seriously” with a child’s ability to initiate, sustain, or complete activities in the domain, and an “extreme” limitation interferes “very seriously.” 20 C.F.R. § 416.926a(e)2, 3; Hopgood, 578 F.3d at 699.
Buckhanon concentrates on four of the six enumerated domains, mounting her strongest challenge to the ALJ’s finding that J.H.’s limitations in the domain of “attending and completing tasks” were less than marked. As Buckhanon observes, the state-agency consultants reported *680marked limitations in this domain, but the ALJ found otherwise without addressing their position. Yet if this omission was an error, it was harmless. The opinions of the state-agency consultants suggest only a “marked” limitation, not an “extreme” one, so a remand would help only if Buck-hanon could point to a second with marked limitations, which she cannot.
The ALJ’s treatment of the other domains discussed by Buckhanon is satisfactory. Buckhanon contends that the ALJ erred in the domain of “interacting and relating with others” by mischaracterizing the record as showing that, overall, J.H.’s condition was improving. But this conclusion is not a mischaracterization. Although the record does not tell a pat story of unmitigated improvements, there is nothing wrong with the ALJ’s overall assessment, particularly in light of the testimony given by J.H. and her grandmother.
The same is true about the ALJ’s evaluation of the domain of “acquiring and using information.” Buckhanon argues that the ALJ focused exclusively on J.H.’s intellectual capacity and ignored evidence that her behavioral difficulties limit her use of the information she acquires. Yet the ALJ recognized both that J.H.’s behavior was a “major reason” for her academic difficulties, and that she was getting help for that behavior. J.H.’s testimony, together with Buckhanon’s, confirmed that she was bene-fitting from treatment, that her behaviors were not particularly severe, and that, aside from some difficulty in math, things were going “all right” in school. In fact, as the ALJ observed, J.H. was formally tested in January 2005 before significant treatment had begun, and already then she was functioning in the “low average range.” So there is nothing illogical about the ALJ’s conclusion that, “on balance,” J.H.’s limitations were less than marked.
As for the domain of “caring for yourself,” Buckhanon contends that the ALJ erred by failing to address serially a catalog of instances of J.H.’s poor judgment. But the ALJ remarked generally on J.H.’s “immaturity and poor judgment,” and specifically on J.H.’s interest in sex, as well as her two experiments with alcohol and her use of marijuana four or five years before the hearing. The ALJ determined that, “on the whole,” these concerns did not outweigh J.H.’s testimony about her good hygiene, self-management, and participation in community activities and sports. There was no need to address each piece of evidence individually. See Giles, 483 F.3d at 488; Zurawski, 245 F.3d at 889. Buckhanon further contends that the ALJ engaged in baseless speculation in this domain by remarking that J.H. can manage her daily activities “when she wants to.” But Buckhanon’s contention is belied by her and J.H.’s own testimony.
Because the ALJ relied on substantial evidence in the record, especially testimony from J.H. and Buckhanon, and because the ALJ logically articulated the connection between that evidence and her conclusions, we uphold the denial of benefits.
The judgment is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478267/ | ORDER
Juan Alberto Castillo pleaded guilty to conspiring to import 1 kilogram or more of heroin into the United States, see 21 U.S.C. § 963; 18 U.S.C. § 2, and received a sentence of 120 months’ imprisonment. In his plea agreement, he waived his right to appeal his conviction and sentence. He filed a notice of appeal, but his appointed counsel seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot *686identify any nonfrivolous argument to pursue. Castillo responded to his lawyer’s submissions. See Cir. R. 51(b). We limit our review to the potential issues identified in the facially adequate brief submitted by counsel and in Castillo’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Castillo has provided no hint that he wishes to have his guilty plea set aside, so counsel rightly omits a discussion of the plea’s voluntariness or the plea colloquy. See United States v. Knox, 287 F.3d 667, 671 (7th Cir.2002).
Both counsel and Castillo consider whether Castillo could challenge his sentence. Counsel focuses on the possible applicability of a safety-valve reduction, see U.S.S.G. § 5C1.2, and Castillo on the calculation of his criminal history points. See U.S.S.G. § 4A1.1. Both of these arguments, however, are foreclosed by the appeal waiver. If the guilty plea stands, so does the waiver. See Nunez v. United States, 546 F.3d 450, 453 (7th Cir.2008).
Finally, counsel, who did not represent Castillo at trial, also considers whether Castillo could argue that his trial counsel was ineffective. But a challenge to the adequacy of counsel’s performance is best explored in a collateral proceeding so that a more complete record can be developed. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Harris, 394 F.3d 543, 557-58 (7th Cir.2005).
For the foregoing reasons, we GRANT counsel’s motion to withdraw and DISMISS Castillo’s appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478269/ | ORDER
Darren D’Wayne Morris sued a number of prison officials, claiming that he missed meals, showers, and recreation time because his hearing disability prevented him from complying with prison rules. The district court granted summary judgment for the defendants. We affirm.
*688The facts are uncontested. Morris is a Wisconsin prisoner who was housed in the segregation unit at the Waupun Correctional Institution in August 2006. (He was transferred to Columbia Correctional Institution in October 2006.) Prisoners in segregation at Waupun were alerted to receive their meals, showers, and other essentials by an audio tone sounded over the intercom. If a prisoner did not stand at his cell door when the tone sounded, prison officials assumed that he was refusing the meal or shower. Because Morris suffered from hearing loss in both ears, and at the time had only one functional hearing aid, he could not always hear the tone; he says he missed out on 17 meals between August 4 and August 27. He also sometimes missed showers and recreation, and on eight occasions was not given his medication. (Morris took three prescriptions to treat depression, psychosis, and a fungal infection on his foot.) Morris alerted prison officials numerous times that he had a hearing impairment, requesting a placard for his door so that he would not miss meals or medication. A placard was placed on his door on August 21, though he continued to miss a few meals after that date.
Morris sued for damages and injunctive relief under the Eighth and Fourteenth Amendments and Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134. He claimed that the defendants knew about his disability but deliberately disregarded his needs by passing him over for meals and medication. Morris also claimed that the prison’s policy requiring him to respond to an audio cue in order to get essential needs violated the ADA, which prohibits discrimination in the provision of public services. 42 U.S.C. § 12132; Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir.2006). He sought damages under the ADA for deprivation of food and medicine, and injunctive relief requiring Waupun to redesign lunchroom facilities to ensure that those with hearing disabilities would be safe even though they could not respond to an audible alarm.
The district court granted summary judgment to the defendants. The court concluded that missing a few meals and doses of medicine did not so seriously deprive Morris as to violate the Eighth Amendment. Moreover, the court concluded that Morris had not established that the defendants were deliberately indifferent to his needs for food and medicine, and that the prison officials were at most negligent. As for the ADA claims, the court concluded that his request for injunctive relief was mooted by his transfer from Waupun, and that his failure to make out an Eighth Amendment claim doomed his request for damages, which are available under Title II only for constitutional violations.
On appeal, Morris contends that the district court improperly granted summary judgment for the defendants. He maintains that a genuine issue exists concerning how seriously he was affected by missing food and medicine. He also contends that his request for injunctive relief was not moot because, as a prisoner serving a life sentence, he is likely to be transferred back to Waupun at some later point.
The Eighth Amendment requires prison officials to provide adequate food, clothing, shelter, and medical care to prisoners. Fanner v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Sain v. Wood, 512 F.3d 886, 893 (7th Cir.2008). To establish an Eighth Amendment violation, a prisoner must show that he has been severely harmed and that prison officials were deliberately indifferent to that harm. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.2006). This requires that prison officials knew about a substantial risk of *689harm to the inmate and refused to act to prevent that harm. Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Dale v. Poston, 548 F.3d 563, 569 (7th Cir.2008). Mere negligence—even gross negligence—does not violate the Constitution. Lee v. Young, 533 F.3d 505, 509 (7th Cir.2008).
Morris argues that his weight loss while in segregation belies the district court’s conclusion that he suffered no serious harm. But as the district court noted, he was examined five times by medical staff during his 24-day stay in segregation, and the staff noted no serious medical problem related to weight loss or otherwise caused • by missing food or medicine. Whether or not the 17-day delay in placing the placard outside his cell suggests a failure to provide adequate care, Morris cannot establish a constitutional violation because he has not shown that missing his meals or medicine caused serious harm or lasting detriment. See Freeman v. Berge, 441 F.3d 543, 547 (7th Cir.2006) (concluding that even a 45-pound weight loss would not support a claim without evidence of serious suffering or lasting harm); Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003) (upholding jury’s finding that missing one week of HIV medication did not cause serious injury); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 811-12 (7th Cir.2000) (concluding that missing some doses of medicine was not a constitutional violation without showing of serious harm).
As for his ADA claims, although Morris correctly notes that Title II applies to prisoners, see Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000), the district court correctly rejected his request for injunctive relief. “[Wjhen a prisoner who seeks injunctive relief for a condition specific to a particular prison is transferred out of that prison, the need for relief, and hence the prisoner’s claim, become moot.” Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.2004); see also Higgason v. Farley, 83 F.3d 807, 811 (7th Cir.1996). Morris was transferred to Columbia in October 2006, and he needed to provide more than just his conjecture of a possible return to Waupun to stave off dismissal for mootness. Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Moore v. Thieret, 862 F.2d 148, 150 (7th Cir.1988).
But his claim for damages based on past conduct is not mooted by his transfer. Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir.2009). The district court correctly recognized that Title II creates a private cause of action for damages against states for conduct that violates the Fourteenth Amendment, and so Title II abrogates state sovereign immunity at least for those claims that independently violate the Constitution. United States v. Georgia, 546 U.S. 151, 159, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006); Toeller v. Wis. Dep’t of Corr., 461 F.3d 871, 874 (7th Cir.2006). As the district court properly stated, though, Morris’s inability to establish an Eighth Amendment claim forecloses this avenue for relief.
But the district court did not note that in Georgia the Court left open the question whether the ADA could validly abrogate sovereign immunity for non-constitutional violations. 546 U.S. at 159, 126 S.Ct. 877. In reserving this question, the Court instructed lower courts to determine in the first instance, claim by claim, whether Congress’s purported abrogation of sovereign immunity is valid when the challenged conduct violates the ADA but not the Constitution. Georgia, 546 U.S. at 159, 126 S.Ct. 877.
But Title II only provides for damages if a public official intentionally discriminates because of disability. See Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. *690Ross, 486 F.3d 267, 278 (7th Cir.2007); Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002); Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 574 (5th Cir.2002). And Morris has not shown that any discrimination he suffered was intentional. Prison officials initially subjected him to their policy requiring prisoners in segregation to respond to an audio cue. But Morris’s complaints about not being able to hear the audio cue were heeded by the prison administrators, who placed a placard outside his cell to alert guards that he had a hearing disability, and the administrators followed up by sending the guards a memorandum regarding his condition. The fix was simple, low-cost, low-tech, and effective to boot — within days Morris stopped missing meals. One wonders why then it took seventeen days to implement. Prison officials’ initial failure to accommodate Morris’s disability might at worst constitute negligence, but negligence alone cannot support a Title II claim. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) (concluding that bureaucratic negligence would not establish intentional discrimination). Because Morris presented no evidence to support a damages claim under the ADA for intentional discrimination, we need not reach the question whether the ADA validly abrogates Wisconsin’s sovereign immunity.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478271/ | ORDER
Jimmy Alexander pleaded guilty to defrauding the Federal Emergency Management Agency (FEMA) out of thousands of dollars in emergency aid intended for victims of Hurricane Katrina. The district court sentenced him to 57 months’ imprisonment, nearly twice the high end of his guidelines range. The judge explained that he imposed an above-range sentence in part because he believed the guidelines understated the seriousness of the crime. Alexander appeals, contending that rejecting the guidelines based on a “policy disagreement” was error. He also contends that his sentence is unreasonably high.
Alexander was the least of FEMA’s concerns when it established Katrina Relief, a program to administer emergency aid to Gulf Coast residents whose homes were damaged or destroyed by Hurricane Katrina. Alexander was not a resident of the Gulf Coast, let alone the head of a household there. He lived in Indianapolis, some 800 miles safely away from the flood zone, and the record suggests that’s where he was on August 29, 2005, the day the hurricane hit Louisiana. This, however, did not dissuade him from filing an application for emergency aid with Katrina Relief. In his application and in subsequent requests, he stated that his primary residence in New Orleans was damaged in the storm, and that he intended to avail himself of the full menu of relief options — expedited housing assistance, expedited rental assistance, and personal property assistance. A record check later revealed that the property identified on his application belonged to his mother. Alexander hatched the scheme with his girlfriend, also a resident of Indiana, and together, between September 2005 and December 2006, they squeezed FEMA for $22,450.01 in relief money — all from the comfort of Indianapolis.
Alexander pleaded guilty to conspiring to steal public monies, see 18 U.S.C. § 371, and the district court proceeded at sentencing to calculate his guidelines range. To his base offense level of six, see U.S.S.G. § 2Bl.l(a)(2), the court added six additional levels: four for the amount stolen, and two because his fraud involved the theft of money intended for disaster relief. Because Alexander quickly admitted his guilt, the court subtracted two levels under § 3E1.1, bringing his total offense level to 10. The court then turned to his criminal history, which, it noted, was “extraordi*692nary” for a man under 40. Since turning 18 two decades earlier, Alexander accumulated 26 criminal history points, twice the number needed to put him in category VI at the top of the chart. Alexander’s offenses span a range of criminal conduct: three convictions involving theft and receipt of stolen goods; five convictions relating to controlled substances; two convictions for resisting law enforcement; and a battery conviction for shooting someone in the neck. Alexander’s offense level and criminal history category yielded an imprisonment range of 24 to 30 months, and it was within that range that both Alexander and the government urged the court to impose a sentence. But the district judge had other ideas.
After considering the factors set forth in 18 U.S.C. § 3553(a), the judge concluded that an above-range sentence was necessary because the guidelines enhancements for emergency-relief fraud failed to reflect the seriousness of Alexander’s crime. The judge described the crime as “the lowest of the low.” Alexander, the judge explained, set out to profit from “the most generous instincts of American life.” Worse yet, he and those guilty of similar crimes might well frustrate the distribution of emergency aid in the future, since a hesitant relief program is more likely to be an ineffectual one. The judge continued: “I said before in another case [United States v. King, No. 07 CR 16 (S.D. Ind. filed Jan. 30, 2007) ] involving theft of Katrina funds that what was required was swift, severe and visible punishment.” As additional support for the sentence, he noted that Alexander’s criminal history category failed to represent adequately his criminal record. To have amassed 26 criminal history points in twenty years, the judge noted, Alexander must have been “committing crimes whenever [he was] not in prison as an adult.” The ultimate sentence imposed, 57 months, was just 3 months shy of the statutory maximum.
Alexander’s argument on appeal is somewhat elusive. He contends that the district court unreasonably based its above-range sentence on a categorical disagreement with the guidelines governing fraud rather than the specific characteristics of Alexander’s crime. In his opening brief he characterizes this argument as a substantive challenge — a claim that a general policy disagreement with the penal theories embodied in the guidelines does not justify a sentence substantially above the range. But in his reply brief he recasts the argument as a procedural challenge. He argues there that it is an open question whether the district court had the authority, under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and its progeny, to categorically reject the fraud guidelines in the first place.
Whatever its label, the argument fails: after Kimbrough, a sentencing judge is no longer bound by the penal theories that inform the guidelines, and may substitute a theory of his own if doing so would advance the aims of the § 3553(a) sentencing factors. See Spears v. United States, — U.S. -, -, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009); Kimbrough, 552 U.S. at 101-02, 128 S.Ct. 558; Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Aguilar-Huerta, 576 F.3d 365, 366-67 (7th Cir.2009); United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir.2009); see also United States v. Carera, 550 F.3d 180, 194-95 (2nd Cir.2008); United States v. Tankersley, 537 F.3d 1100, 1114 n. 12 (9th Cir.2008). In this case, after calculating the guidelines range and considering the sentencing factors, the district judge was not persuaded that the advisory range reflected the gravity of the crime. In other words, the judge consulted the guidelines before determining that a higher sentence would better advance *693the objectives of the sentencing factors— precisely the approach prescribed by the Supreme Court. See Rita, 551 U.S. at 351, 127 S.Ct. 2456; United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir.2009).
Alexander also argues that his above-range sentence risks creating unwarranted disparities among defendants who have been convicted of similar conduct. For support, he cites two Fifth Circuit cases in which defendants received lighter sentences for similar Katrina-fraud conduct. See United States v. Conroy, 567 F.3d 174 (5th Cir.2009); United States v. Taylor, 582 F.3d 558 (5th Cir.2009). It is true that sentencing judges should strive for uniformity among similarly situated defendants. 18 U.S.C. § 3553(a)(6); United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009). But for a disparity to be “unwarranted,” the sample of defendants must include not only those who have been found guilty of similar conduct but also those with similar records. 18 U.S.C. § 3553(a)(6); United States v. Schmitt, 495 F.3d 860, 862 (7th Cir.2007). What Alexander is missing is evidence that defendants with comparable criminal records who steal relief money tend to receive more favorable sentences. In this case, Alexander’s criminal history was, in the words of the district judge, “extraordinary”; not even Category VI, he observed, came close to expressing the depth and breadth of his record. We agree. Accordingly, an above-range sentence was reasonable. See United States v. Groves, 559 F.3d 637, 642-43 (7th Cir.2009); United States v. Jackson, 547 F.3d 786, 794 (7th Cir.2008).
Alexander also tries to distinguish his situation from United States v. King, 506 F.3d 532, 536-37 (7th Cir.2007), an Anders case the government contends is on point. The defendant in King pleaded guilty to using false social security numbers to steal Katrina relief funds and was sentenced to 105 months’ imprisonment, 34 months above the top of the guidelines range. King, 506 F.3d at 534. In granting appellate counsel’s motion to withdraw, we conclude that a challenge to the defendant’s above-range sentence would be frivolous. Alexander points out that the fraud at issue in King was far more elaborate than his, and that while the net sentence in King was higher than the one he received, the percentage increase over the guidelines range was smaller. While these distinctions are notable, King still supports the government’s position, if only because the reasons supplied by the district court for imposing an above-range sentence— the failure of the guidelines to reflect both the defendant’s criminal history and the reprehensible nature of his crime — largely tracked those supplied here.
For these reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478273/ | ORDER
Michael Dupoy pleaded guilty to one count of receiving child pornography. See 18 U.S.C. § 2252A(a)(2). His offense level and criminal history score would have yielded a guidelines imprisonment range of 360 months to life, but the statutory maximum for his crime was 20 years. See id. § 2252A(b)(l). The district court sentenced him to 220 months. The court imposed a below-range term based on Du-poy’s assertion that he was molested as a child by his father, but the judge was unwilling to give him the 120-month term he requested.
Dupoy appeals his sentence, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Du-poy did not respond to counsel’s motion. See Cm. R. 51(b). We limit our review to the potential issues counsel explores in his facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Dupoy has not expressed a desire to challenge his guilty plea, so counsel does not examine whether the plea was voluntary or the plea colloquy was adequate. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel recognizes that it would be frivolous to argue that the district court committed procedural error at sentencing. The court calculated the guidelines range correctly but did not treat it as mandatory. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court addressed all of Dupoy’s arguments for a lower sentence and also evaluated the sentencing factors outlined in 18 U.S.C. § 3553(a). In analyzing the nature of Dupoy’s offense and his personal characteristics, see id. § 3553(a)(1), the court noted that he possessed more than 1,500 images of child pornography and disseminated at least 700 images to other pedophiles, that he was enthusiastic about downloading images despite knowing it was illegal, that some of the images were egregious even in the context of child pornography, that he engaged in this conduct over an extended period of time, that the children depicted were victims, even if Du-poy did not have contact with them himself, that he claimed his father had physically and sexually abused him, and that he had a substantial criminal record. The court also emphasized that its sentence had to protect the public from Dupoy. See id. § 3553(a)(2)(C).
Counsel next acknowledges that it would be frivolous for Dupoy to argue that his prison sentence is unreasonable. Although the district court highlighted many aggravating factors, the court still imposed a sentence below the guidelines range, and we presume that sentence to be reasonable. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009); United States v. Anderson, 580 F.3d 639, 651 (7th Cir.2009). Given the district court’s thoughtful application of the § 3553(a) factors, Dupoy cannot rebut that presumption. See United States v. Noel, 581 F.3d 490, 500 (7th Cir.2009).
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/8478276/ | PER CURIAM.
Harold R. Stanley appeals the district court’s1 separate orders dismissing his civil complaint. After careful review of the record and the parties’ briefs, we conclude that dismissal was proper for the reasons stated in the district court’s orders. We affirm. See 8th Cir. R. 47B.
. The Honorable Gary A. Fenner, United States District Judge for the Western District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478277/ | PER CURIAM.
General Parker appeals the district court’s1 dismissal of his 42 U.S.C. § 1983 *709action alleging violations of various constitutional rights arising from his divorce and custody dispute. Upon de novo review, see Goss v. City of Little Rock, 90 F.3d 306, 308 (8th Cir.1996), we find no error in the district court’s dismissal. Accordingly, we affirm. See 8th Cir. R. 47B.
. The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478279/ | PER CURIAM.
Gilarime Mueller appeals the district court’s1 judgment entered after a jury found him guilty of conspiring to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and possessing cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. Mueller’s counsel has moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that the convictions were not supported by the evidence; that the district court erred in not reducing the offense level under Spears v. United States, - U.S. -, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam), based on the disparity between powder cocaine and cocaine base; that the court erred in enhancing the sentence for obstruction of justice; and that the court erred in denying the motion to suppress evidence obtained during the search of Mueller’s residence. Mueller seeks appointment of new counsel and has filed a pro se brief, in which he argues that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it attributed 4.5 kilograms of cocaine base to him; that there was no proof supporting the drug quantity found by the court; and that his sentence violated the Eighth Amendment.
We hold that the evidence was sufficient to support Mueller’s conviction on both counts. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008) (this court reviews sufficiency of evidence in light most favorable to government, resolving evidentiary conflicts in government’s favor and accepting all reasonable inferences that support jury’s verdict). Four cooperating witnesses testified that they bought cocaine base from Mueller, or participated with Mueller in an arrangement to buy cocaine base or to buy powder cocaine and convert it to cocaine base. See United States v. Cruz, 285 F.3d 692, 700 (8th Cir.2002) (to prove conspiracy, government must prove existence of agreement to achieve illegal purpose, and defendant’s knowledge of agreement and knowing participation in conspiracy). Other testimony *711showed that Mueller had been present during the cooking, at his residence, of 39.54 grams of cocaine base later seized by police. See United States v. Parker, 587 F.3d 871, 881 (8th Cir.2009) (to sustain conviction for possession with intent to distribute, government must prove defendant knowingly possessed and intended to distribute drugs); United States v. Mendoza, 421 F.3d 663, 668-69 (8th Cir.2005) (elements of aiding and abetting possession with intent to distribute are that defendant associated himself with possession of drugs with intent to distribute, he participated in this activity as something that he wished to bring about, and he sought by his action to make this activity succeed). All of the cooperating witnesses testified about their plea agreements and their hopes for reduced sentences in return for their cooperation. See United States v. Foxx, 544 F.3d 943, 950 (8th Cir.2008) (credibility determinations are well within province of jury), cert. denied, — U.S. -, 130 S.Ct. 91, 175 L.Ed.2d 63 (2009); United States v. McKay, 431 F.3d 1085, 1094 (8th Cir.2005) (impeachment evidence was for jury to consider).
We also hold that counsel’s Spears argument fails, as the district court addressed the powder/crack cocaine disparity and found that it did not warrant any correction in this case, see United States v. Johnson, 574 F.3d 570, 573 (8th Cir.2009) (district court did not err where it acknowledged its power to vary from the Guidelines to address powder/crack cocaine disparity and chose not to); and that the district court did not err in imposing an enhancement for obstruction of justice, based on its findings that Mueller had attacked an inmate who could have testified against him at sentencing, see U.S.S.G. § 3C1.1 comment. (n.l) (adjustment applies if obstructive conduct occurred with respect to investigation, prosecution, or sentencing of instant offense); United States v. Thompson, 210 F.3d 855, 860-61 (8th Cir.2000) (obstruction enhancement based on fact-finding is reviewed for clear error; attempt to intimidate or threaten witness is sufficient for enhancement).
We further hold that the district court did not err in denying Mueller’s motion to suppress, as the evidence supported the court’s findings that there was probable cause for the warrant to search Mueller’s residence and that the seizure of the residence while waiting for the warrant was reasonable. See Illinois v. McArthur, 531 U.S. 326, 330-33, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (factors for determining whether seizure pending warrant was reasonable); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (probable-cause determination); United States v. Clarke, 564 F.3d 949, 958 (8th Cir.) (standard of review for denial of suppression motion), cert. denied, — U.S. —, 130 S.Ct. 651, — L.Ed.2d - (2009).
As to the pro se arguments, we conclude that the district court’s drug-quantity finding (1) did not violate Apprendi, as Mueller was sentenced within the applicable statutory maximum, see 530 U.S. at 490, 120 S.Ct. 2348; (2) was properly based on the preponderance-of-the-evidence standard, as the court applied advisory Guidelines, see United States v. Hines, 472 F.3d 1038, 1040 (8th Cir.2007) (per curiam); and (3) was amply supported by the testimony of co-conspirator Andrew Sullivan. We further conclude that Mueller’s 380-month sentence neither violated the Eighth Amendment, given the large quantity of cocaine base involved and Mueller’s criminal history, see United States v. James, 564 F.3d 960, 964 (8th Cir.), cert. denied, — U.S. -, 130 S.Ct. 433, 175 L.Ed.2d 297 (2009), nor constituted an abuse of discretion, see United States v. Feemster, 572 F.3d 455, 461 (8th *712Cir.2009) (en banc) (listing factors that constitute abuse of discretion).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment is affirmed, counsel is granted leave to withdraw, and Mueller’s motion for new counsel is denied.
. The Honorable John A. Jarvey, United Slates District Judge for the Southern District of Iowa. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478281/ | MEMORANDUM **
Roman Ivanovich Postoenko, a native and citizen of Russia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and de novo questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the IJ’s denial of asylum, because Postoenko failed to demonstrate that the harms he suffered on account of his religion when he was at school amounted to persecution, see Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir.2006) (no past persecution where petitioner was detained for three days, beaten and interrogated), that the 2004 skinhead incident was on account of a protected ground, see Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004), or that he was or will be persecuted on account of his religion for avoiding conscription, see Zehatye, 453 F.3d at 1187. Substantial evidence further supports the IJ’s denial of asylum because Postoenko’s voluntary return to Russia undermines his well-founded fear of future persecution. See Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir.2006).
Because Postoenko did not establish eligibility for asylum, it necessarily follows that he did not satisfy the more stringent standard for withholding of removal. See Zehatye, 453 F.3d at 1190.
Substantial evidence supports the IJ’s denial of CAT relief because Postoenko failed to show it was more likely than not he would be tortured if he returns to Russia. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir.2007).
We lack jurisdiction to consider Postoen-ko’s claims that the IJ erred in misstating the record regarding when he left for the United States and the circumstances surrounding his conscription because he failed to raise them before the BIA. See Barron *733v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). Accordingly, we reject Postoenko’s contention that the BIA erred by failing to address these claims.
Finally, we decline to reach those issues raised for the first time by Postoenko in his reply brief, including his contentions that the IJ abused his discretion by failing to: (1) consider the 2002 skinhead attack and police harassment; (2) question Pos-toenko about the severity of the 2004 skinhead attack; and (3) question whether Postoenko’s mother knew of the 2004 skinhead attack. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam) (“Issues raised for the first time in the reply brief are waived.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478285/ | ORDER
The memorandum disposition filed on December 30, 2009, is withdrawn. Appellant’s Petition for Rehearing And Appellant’s Petition for Rehearing En Banc is denied as moot, without prejudice to refiling a subsequent petition for rehearing and/or petition for rehearing en banc.
A new memorandum disposition is filed simultaneously with this order.
MEMORANDUM *
David Paulson appeals the district court’s order affirming the Commissioner’s decision denying Paulson Social Security Disability insurance benefits. Because the Administrative Law Judge’s (“ALJ”) decision to discredit various sources of evidence presented by Paulson and the ALJ’s determination that Paulson’s condition does not meet or equal the requirements *760of Listing 1.04B are both supported by substantial evidence, we affirm.
“[W]e review de novo the district court’s order upholding a decision of the Commissioner denying benefits to an applicant. The Commissioner’s decision must be affirmed by us if supported by substantial evidence, and if the Commissioner applied the correct legal standards.” Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004) (internal citations omitted).
We first hold that the ALJ did not err by relying on the testimony of vocational expert Wilson from a prior hearing before a different ALJ, Judge Atkins. Though Paulson is correct that the ALJ slightly misstated Judge Atkins’s prior residual functional capacity determination, we see no reason to believe that this was a new factual finding and not simply an unintentional mistake. The ALJ stated several times in his opinion below that nothing he reviewed on remand warranted modifying Judge Atkins’s prior RFC findings and that those findings should remain unchanged.
Second, we hold that the ALJ’s decision to discredit Paulson’s testimony and various medical opinions is supported by substantial evidence. Paulson’s doctors consistently concluded that Paulson’s reported symptoms exceeded those that could be attributable to their objective medical findings, and Paulson’s activities contradict his reported limitations.
The ALJ also provided clear and convincing reasons for discrediting the opinions of Drs. Kruger, Anderson, Jacobs, Green, and Gritzka.1 See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.1999). The ALJ properly discredited Dr. Kruger’s opinion because it was based solely on an interview with Paulson, whom the ALJ properly found not credible for the reasons given above. The ALJ also properly discredited Dr. Anderson’s opinion because it was similarly based on Paulson’s report of his subjective symptoms. The ALJ properly discredited Dr. Jacobs’s opinion because it was inconsistent with Dr. Jacobs’s own prior treatment notes, including those indicating that Paulson’s subjective symptoms could not be explained by objective medical evidence. The ALJ, therefore, also properly discredited Dr. Green’s opinion, which was based heavily on Dr. Jacobs’s opinion. Further, the ALJ properly discredited Dr. Gritzka’s opinion because Gritzka was neither a treating nor an examining physician, and thus his opinion was superseded by the opinions of Paul-son’s treating and examining physicians. Finally, the ALJ did not err in relying on Dr. Carvalho’s opinion, which constituted competent evidence.
We further hold that the ALJ did not commit reversible error in failing to consider the opinion of Paulson’s chiropractor, Dr. Christensen, because Dr. Christensen’s opinion was also based on Paulson’s report of his subjective symptoms. Dr. Christensen’s opinion also contradicts acceptable medical sources, which are generally given greater weight. See 20 C.F.R. § 404.1513(d)(1); SSR 06-3p (“The fact that a medical opinion is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an ‘acceptable medical source’ because ... ‘acceptable medical sources’ ‘are the most qualified health care professionals.’ ”).
*761Third, we hold that the ALJ’s determination that Paulson’s condition does not meet or equal the requirements of Listing 1.04B, Disorders of the Spine, 20 C.F.R. Pt. 404, Subpt. P, § 1.04, is supported by substantial evidence. The ALJ noted that Paulson’s medical record contains various medical images of Paulson’s back and related medical findings, none of which mention spinal arachnoiditis. See 20 C.F.R. Pt. 404, Subpt. P, § 1.04 (stating that arachnoiditis may be “confirmed by ... appropriate medically acceptable imaging”). The ALJ also did not err in concluding that Paulson’s combined physical and mental impairments did not equal this listing.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because we affirm the AU’s challenged determinations on the merits, we do not address the Commissioner's alternative argument that the law of the case precludes Paulson from challenging them here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478287/ | MEMORANDUM **
Gregory Morris Powderface appeals from the nine-month sentence imposed following revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Powderface contends his nine-month sentence is substantively unreasonable because prison alone does not serve the sentencing purposes of deterrence, protection of the public, and rehabilitation. In light of the totality of the circumstances of this case and the applicable 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See 18 U.S.C. § 3583(e)(3); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008) (applying reasonableness requirements to supervised release term).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478289/ | ORDER CERTIFYING STATE LAW QUESTION
ROBERT H. HENRY, Chief Judge.
Weed Warrior Services and Brenda Et-cheverry appeal the district court’s grant of summary judgment in favor of Progressive Northwestern Insurance Company (“Progressive”). At issue is whether the Etcheverrys’ decision to take uninsured/underinsured motorist (UM/UIM) coverage in a lesser amount than the general coverage under a commercial automobile insurance policy constitutes a “rejection” under the New Mexico uninsured *854motorist statute. The district court ruled that the Etcheverrys’ decision to take UM/ UIM coverage in a lesser amount did not constitute a rejection. This conclusion conflicts with another federal district court opinion and three New Mexico Court of Appeals decisions. Because the disposition of this appeal turns on an important and unsettled question of New Mexico law, we respectfully request the New Mexico Supreme Court to exercise its discretion to accept the following certified question:
Does the election to take UM/UIM coverage for less than the general policy liability limits constitute a rejection under the New Mexico uninsured motorist statute, N.M. Stat. §§ 66-5-301(A)?
The facts relevant to the determination of this certified question are set forth below.
Background
On September 26, 2000, Brenda Etchev-erry suffered injuries in a motor vehicle accident. She settled against the other driver involved for that driver’s policy limit — $100,000. Mrs. Etcheverry then sought additional recovery for her injuries from Progressive Northwestern Insurance Company under a commercial automobile insurance policy taken out by her husband for his company, Weed Warrior Services.1
The Etcheverrys’ policy with Progressive had general liability coverage for $1,000,000 and uninsured/underinsured (UM/UIM) motorist coverage for $100,000. Above the signature line on the application, signed by Mr. Etcheverry, were a number of statements, including: “I understand several options of Uninsured/Un-derinsured Motorists Coverage are available and they have been explained to me. The option selected on this application is the option I desire.” Aplt’s App. at 322 (Mem. Op. and Order, filed Dec. 5, 2008, 588 F.Supp.2d 1281).
Progressive filed suit, a diversity action in federal district court, requesting a declaratory judgment that it is not liable to Mrs. Etcheverry under the policy. The district court issued a memorandum opinion and order granting Progressive’s motion for summary judgment and issuing a declaratory judgment in its favor.
Mrs. Etcheverry then obtained new counsel and moved to amend the judgment pursuant to Fed.R.Civ.P. 59(e), arguing that her previous counsel had failed to notify her of Progressive’s declaratory judgment lawsuit. The district court entered an order allowing her to file an amended answer with a counterclaim.
Mrs. Etcheverry then filed a motion for summary judgment on her counterclaim, seeking reformation of Progressive’s coverage to raise the UM/UIM limits to match the liability limits of Progressive’s policy. Mrs. Etcheverry argued that the coverage under the UM/UIM provision of the policy should be deemed to be the same as the general liability limit — $1,000,-000 — because her election to take lesser coverage constituted a rejection under the New Mexico uninsured motorist statute. Rejections are strictly governed by the statute and must conform to specific provisions. Because the election of coverage of $100,000 did not conform to those provisions, Mrs. Etcheverry argued, the policy *855should be construed against Progressive and in favor of the general liability limit. The district court denied Mrs. Etchever-ry’s motion and dismissed the case with prejudice.
In dismissing the case, the district court ruled that the UM/UIM coverage provided to Mrs. Etcheverry was limited to $100,000. The district court considered whether “New Mexico law requires that anyone selecting UM/UIM coverage at a level less than their policy’s liability limits must execute a written rejection of the maximum limits and, in the absence of such a written rejection, a court must reform the policy to reflect UM/UIM coverage equal to the policy’s liability limits.” Id. The court, applying New Mexico state law, ruled that the selection of an amount of UM/UIM coverage less than a general liability amount did not constitute a rejection and thus refused to reform the policy.
The court first looked to the New Mexico statute regarding uninsured motorists, N.M. Stat. § 66-5-301(A). The statute requires that every automobile liability policy include the option of uninsured and underinsured motorist coverage. Prospective policyholders may choose not to purchase any UM/UIM coverage so long as the refusal is in writing. Additionally, the New Mexico Superintendent of Insurance has promulgated rules regarding UM/UIM coverage that require any rejection of coverage be made in writing as “part of the policy of bodily injury and property damage insurance.” Aplt’s App. at 323 (quoting N.M.Code R. § 13.12.3.9). Unless completely rejected, however, the New Mexico statute requires that the level of UM/UIM coverage provided by an insurance company must meet at least the minimum floor set by the Mandatory Financial Responsibility Act, N.M Stat. § 66-5-215, which is $25,000. The maximum amount available is the amount of the general coverage under the policy. Accordingly, as the district court acknowledged, “New Mexico’s statute stands in contrast to statutes in a number of other states that require an insured to purchase UM/UIM coverage with limits equal to their liability limits unless they specifically opt out.” Aplt’s App. at 323 (emphasis in original).
The court found that, in selecting the policy “Mr. Etcheverry affirmatively purchased” a higher limit than the minimum set out by the statute. Id. at 324. Thus, it concluded that the only way for Mrs. Etcheverry to prevail “is for the Court to find that the affirmative selection of a UM/ UIM coverage limit in any amount less than the full liability limits constitutes a ‘rejection’ of UM/UIM coverage that must be made in writing.” Id. In determining whether the selection of the $100,000 in coverage counts as a rejection, the district court looked to the legislative intent and plain meaning of the statute, observing that “[q]uite simply, nothing in the plain language of either the statute or the regulation can be read to indicate that the selection of any level of UM/UIM coverage less than full bodily injury liability coverage constitutes a ‘rejection’ of UM/UIM coverage requiring a written waiver.” Id. at 325. It found that the purpose of the statute and regulations is not to require or even encourage a particular amount of insurance to be purchased; rather, the purpose of the statute and regulations is to encourage some coverage of UM/UIM insurance and to ensure that any waiver or rejection of the UM/UIM coverage is done knowingly and voluntary. That purpose was satisfied here: the Etcheverrys had $100,000 UM/UIM coverage. Finally, the district court emphasized that the coverage amount was clearly stated in the insurance contract — in contrast to other cases in which the amount selected may have been confusing for the insured. Thus, the court granted summary judgment for Progressive.
*856Mrs. Etcheverry and Weed Warrior Services filed this appeal to overturn the district court’s ruling. In addition, they motioned the court to certify this case to the New Mexico Supreme Court. Progressive responded that it has “no position” on the motion to certify. However, it added that certification is unnecessary because there is sufficient precedent on this matter.
DISCUSSION
A. New Mexico certification statute
Under Tenth Circuit rules, “[w]hen state law permits, this court may .... certify a question arising under state law to that state’s highest court according to that court’s rules.” 10th Cir. R. 27.1(A). ‘Whether to certify a question of state law to the state supreme court is within the discretion of the federal court.” Armijo v. Ex Cam Inc., 843 F.2d 406, 407 (10th Cir.1988). The New Mexico certification statute states: “The supreme court of this state may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision or statute of this state.” N.M. Stat. § 39-7-4.
B. Ambiguity exists on the meaning of the New Mexico Uninsured Statute
Section A of the New Mexico uninsured motorist statute states that:
“No motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property of others arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico unless coverage is provided therein or supplemental thereto ... for the protection of persons insured there under who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom, according to the rules and regulations promulgated by, and under provisions filed with and approved by, the superintendent of insurance.”
N.M. Stat. § 66-5-301(A). Section B of the statute expands this language to include underinsured motorist coverage. Id. § 66-5-301(B). Section C of the statute states: “The named insured shall have the right to reject uninsured motorist coverage as described in Subsections A and B of this section[.]” Id. § 66-5-301(C). The New Mexico Administrative Code, Tit. 13, Ch. 12, Part 3, “Uninsured and Unknown Motorist Coverage,” states the requirements for rejection of UM/UIM coverage — “[t]he rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of Section 66-5-301 N.M. Stat. 1978 must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.” N.M.Code R. § 13.12.3.9.
Four courts — a federal district court and three New Mexico courts of appeals — have decided the question of what rejection means under the statute differently from the district court below. See Farm Bur. Mut. Ins. Co. v. Jameson, 472 F.Supp.2d 1272 (D.N.M.2006); Romero v. Progressive Nw. Ins. Co., 148 N.M. 97, 230 P.3d 844, 849 (2009), cert. denied, No. 32,065, 147 N.M. 673, 227 P.3d 1055 (Jan. 7, 2010); Jordan v. Allstate Ins. Co., No. 28,638, 2009 WL 6634039, slip op. at 6 (N.M.Ct.App. Oct. 29, 2009), cert. denied, No. 32,063, 147 N.M. 673, 227 P.3d 1055 (Jan. 7, *8572010); Farmers Ins. Co. of Ariz. v. Chen, 148 N.M. 151, 231 P.3d 607, 608 (2010).
First, the federal district court in Farm Bureau Mutual Insurance Company v. Jameson, ruled that the election to take UM/UIM coverage in amount less than the general coverage constitutes a rejection under the New Mexico statute. 472 F.Supp.2d at 1280. The court looked first to a line of cases which equated the coverage for general liability and UM/UIM insurance. For example, the court pointed to a case where a state court found that the geographic parameters of the general liability coverage sets the geographic parameters for the UM/UIM coverage. See State Farm Mut. Auto. Ins. Co. v. Marquez, 130 N.M. 591, 28 P.3d 1132, 1135 (2001). This general line of cases, “suggests that the New Mexico judiciary reads § 66-5-301 as requiring UM coverage to be offered in an amount equal to liability coverage and as requiring that a rejection of such must be signed, written, and attached, stamped, or otherwise made a part of the policy.” Jameson, 472 F.Supp.2d at 1282. The court in Jameson also considered what it saw as the overarching aim and purpose of the statute — to make coverage as widely available as possible and to ensure the full range of coverage is offered to the consumer. Implementation of that policy, according to the Jameson court, requires proof that UM coverage was offered up to the maximum limits and, if not elected, evidence that the consumer affirmatively rejected such limits: “the Legislature has chosen statutorily to require that UM coverage be made available up to the liability limits .... the only way to effectively implement that is to place a duty on the insurance company to make that offer and to determine whether there has been a knowing rejection of that offer.” Id. (internal quotation marks and citations omitted). Finally, the court emphasized that a number of other states have similarly found that a decision to take less UM/UIM coverage than the general coverage amount is equivalent to a “rejection.” Id. (“The Court, moreover, recognizes that courts in several other states have reached similar conclusions to the one it reaches here on this issue. In interpreting their states’ UM statutes, the Supreme Court of Delaware and the Courts of Appeals in North Carolina, South Carolina, and Oregon have all done so.”).
In Romero v. Progressive Northwestern Insurance Comany, the New Mexico Court of Appeals, reached the same conclusion. 230 P.3d 844, 849. The Romero court first ruled that “New Mexico’s uninsured motorist statute requires insurers to offer UM/UIM coverage of not less than the minimum amount statutorily required and up to the level of the liability coverage contained within the policy.” Id. at 849. Next, the court stated that, given this requirement, it “logically follows that when an insured purchases UM/UIM coverage either in an amount less than their liability coverage or declines UM/UIM coverage altogether, the insured has rejected some or all of the available UM/UIM coverage.” Id. In another New Mexico Court of Appeals decision, Jordan v. Allstate Insurance Company, the court applied Romero and concluded that “a purchase of an amount less than the liability limit by the insured is a rejection of the UM/UIM coverage that is statutorily available to the insured.” 230 P.3d 844, 849. The New Mexico Court of Appeals also applied this decision in Farmers Insurance Company v. Chen, finding that “a purchase of an amount less than the liability limit by the insured is a rejection of the UM/UIM coverage that is statutorily available to the insured.” 231 P.3d 607, 609.
These cases demonstrate the ambiguity of the statute, § 66-5-301, and indicate the need for a definitive answer from the New Mexico Supreme Court. At the crux of *858this debate is the determination of the New Mexico legislature’s intent in passing the statute. See Smith Mach. Corp. v. Hesston, Inc., 102 N.M. 245, 694 P.2d 501, 503 (1985) (in interpreting a statute the court’s “duty is to find that interpretation which can most fairly be said to be imbedded in the statute in the sense of being most harmonious with its scheme and with the general purpose of the legislature” (quoting Pittsburgh and Midway Coal Mining Co. v. Revenue Division, Taxation and Revenue Dept., 99 N.M. 545, 660 P.2d 1027, 1041 (1983))). In our view, it is unclear whether the goal of the statute is simply to ensure that UM/UIM coverage is offered, or whether the goal is to encourage the greatest amount of UM/UIM coverage and to ensure that a consumer has specifically rejected UM/UIM limits equal to general liability limits.
As previously stated, there is support for both views of the statute’s purpose. The district court’s decision below, as well as the New Mexico Court of Appeal’s decision in Pielhau v. RLI Insurance Company, 144 N.M. 554, 189 P.3d 687, 691 (2008), conclude that offering some coverage is the goal. See Aplt’s App. at 323-24; Pielhau, 189 P.3d at 691 (“Our UM/UIM statute ... is a ‘minimum liability5 statute. New Mexico has no requirement that uninsured coverage must equal the policy’s coverage for bodily injury and property liability.... Athough, under the statute, the insured has the option of purchasing coverage up to these limits, coverage is statutorily required only to the minimum amounts set by the legislature. Accordingly, the policy purpose of the statute is met when the insured’s underlying automobile coverage provides minimum UM/ UIM coverage.”) Id. (emphasis added) (citations omitted). On the other hand, however, there are persuasive arguments lodged by other courts, such as the district court in Jameson, that the decision to take UM/UIM coverage in a lesser amount than the general coverage is a rejection of some coverage.
We also acknowledge the general trend to interpret the New Mexico uninsured statute broadly. The New Mexico Supreme Court has stated that the statute has a remedial purpose and thus, that the language of the statute must be interpreted liberally to further its objectives. Kaiser v. DeCarrera, 122 N.M. 221, 923 P.2d 588, 590 (1996). Thus, although a plausible reading of the statute supports Progressive’s position, other precedents suggest that the statute should be read liberally to aid policyholders who attempt to broaden the reach of this statute.
Given the tension between the cases addressing the issue, the ambiguity in the statute, and the lack of a New Mexico Supreme Court case settling this issue, we thus respectfully request that the New Mexico Supreme Court resolve this question of New Mexico state law. •
CONCLUSION
This court concludes that certification of this question of New Mexico state law will further the interests of comity and federalism by giving the New Mexico Supreme Court the opportunity to answer the question in the first instance, should it elect to do so. This court recognizes and appreciates the discretion of the New Mexico Supreme Court to reformulate the question posed herein.
The Clerk of this court shall transmit a copy of this certification order to counsel for all parties. The Clerk shall also forward, under the Tenth Circuit’s official seal, a copy of this certification order and the briefs filed in this court to the New Mexico Supreme Court. This appeal is ordered ABATED pending resolution of the certified question.
*859We greatly appreciate the consideration of this request by our honorable colleagues on the New Mexico Supreme Court.
. Before the district court, Progressive attempted to argue that the policy did not cover Mrs. Etcheverry. The district court ruled that Progressive had waived this argument by earlier making substantive arguments regarding the coverage. The court wrote that: "it considers Mrs. Etcheverry to be a covered insured in this case solely because of Progressive’s initial admissions. It expresses no opinion as to whether Mrs. Etcheverry would otherwise be considered a covered insured or if a similarly situated person under a similar policy should be considered a covered insured if injured while occupying a non-covered vehicle." (Aplt's App. 321 n. 5.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478292/ | PER CURIAM:
Gerald S. Bettman, appointed counsel for Jermaine Garfield Kerr in these two direct criminal appeals, has moved to withdraw from further representation of the appellant in both cases and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeals is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw from both appeals is GRANTED, and Kerr’s convictions and sentences are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478293/ | ON MOTION
ORDER
Petitioner moves to withdraw his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) The mandate will issue in due course. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478297/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478300/ | ORDER DISMISSING THE APPEAL
Appellant Human Genome Sciences, Inc.’s motion for a voluntary dismissal of the appeal is GRANTED. The parties shall bear their own costs on appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478306/ | ORDER
Absent a response from the plaintiffs-appellants, Wylmina E. Hettinga, et al. to show cause why this appeal should not be transferred pursuant to this court’s order filed September 30, 2009,
IT IS ORDERED THAT:
The appeal is hereby transferred to the U.S. Court of Appeals for the Ninth Circuit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478307/ | ORDER
On September 30, 2009, the court issued an order allowing 21 days for Keith Akins to show cause on why his appeal should not be dismissed as untimely. Akins has not responded within the time allowed.
Accordingly,
IT IS ORDERED THAT:
(1) This appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478309/ | ORDER
Petitioner having tiled the required Statement Concerning Discrimination, it is. ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 21 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478286/ | ORDER
The memorandum disposition filed on December 30, 2009, is withdrawn. Appellant’s Petition for Rehearing And Appellant’s Petition for Rehearing En Banc is denied as moot, without prejudice to refiling a subsequent petition for rehearing and/or petition for rehearing en banc.
A new memorandum disposition is filed simultaneously with this order.
MEMORANDUM *
David Paulson appeals the district court’s order affirming the Commissioner’s decision denying Paulson Social Security Disability insurance benefits. Because the Administrative Law Judge’s (“ALJ”) decision to discredit various sources of evidence presented by Paulson and the ALJ’s determination that Paulson’s condition does not meet or equal the requirements *760of Listing 1.04B are both supported by substantial evidence, we affirm.
“[W]e review de novo the district court’s order upholding a decision of the Commissioner denying benefits to an applicant. The Commissioner’s decision must be affirmed by us if supported by substantial evidence, and if the Commissioner applied the correct legal standards.” Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.2004) (internal citations omitted).
We first hold that the ALJ did not err by relying on the testimony of vocational expert Wilson from a prior hearing before a different ALJ, Judge Atkins. Though Paulson is correct that the ALJ slightly misstated Judge Atkins’s prior residual functional capacity determination, we see no reason to believe that this was a new factual finding and not simply an unintentional mistake. The ALJ stated several times in his opinion below that nothing he reviewed on remand warranted modifying Judge Atkins’s prior RFC findings and that those findings should remain unchanged.
Second, we hold that the ALJ’s decision to discredit Paulson’s testimony and various medical opinions is supported by substantial evidence. Paulson’s doctors consistently concluded that Paulson’s reported symptoms exceeded those that could be attributable to their objective medical findings, and Paulson’s activities contradict his reported limitations.
The ALJ also provided clear and convincing reasons for discrediting the opinions of Drs. Kruger, Anderson, Jacobs, Green, and Gritzka.1 See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.1999). The ALJ properly discredited Dr. Kruger’s opinion because it was based solely on an interview with Paulson, whom the ALJ properly found not credible for the reasons given above. The ALJ also properly discredited Dr. Anderson’s opinion because it was similarly based on Paulson’s report of his subjective symptoms. The ALJ properly discredited Dr. Jacobs’s opinion because it was inconsistent with Dr. Jacobs’s own prior treatment notes, including those indicating that Paulson’s subjective symptoms could not be explained by objective medical evidence. The ALJ, therefore, also properly discredited Dr. Green’s opinion, which was based heavily on Dr. Jacobs’s opinion. Further, the ALJ properly discredited Dr. Gritzka’s opinion because Gritzka was neither a treating nor an examining physician, and thus his opinion was superseded by the opinions of Paul-son’s treating and examining physicians. Finally, the ALJ did not err in relying on Dr. Carvalho’s opinion, which constituted competent evidence.
We further hold that the ALJ did not commit reversible error in failing to consider the opinion of Paulson’s chiropractor, Dr. Christensen, because Dr. Christensen’s opinion was also based on Paulson’s report of his subjective symptoms. Dr. Christensen’s opinion also contradicts acceptable medical sources, which are generally given greater weight. See 20 C.F.R. § 404.1513(d)(1); SSR 06-3p (“The fact that a medical opinion is from an ‘acceptable medical source’ is a factor that may justify giving that opinion greater weight than an opinion from a medical source who is not an ‘acceptable medical source’ because ... ‘acceptable medical sources’ ‘are the most qualified health care professionals.’ ”).
*761Third, we hold that the ALJ’s determination that Paulson’s condition does not meet or equal the requirements of Listing 1.04B, Disorders of the Spine, 20 C.F.R. Pt. 404, Subpt. P, § 1.04, is supported by substantial evidence. The ALJ noted that Paulson’s medical record contains various medical images of Paulson’s back and related medical findings, none of which mention spinal arachnoiditis. See 20 C.F.R. Pt. 404, Subpt. P, § 1.04 (stating that arachnoiditis may be “confirmed by ... appropriate medically acceptable imaging”). The ALJ also did not err in concluding that Paulson’s combined physical and mental impairments did not equal this listing.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because we affirm the AU’s challenged determinations on the merits, we do not address the Commissioner's alternative argument that the law of the case precludes Paulson from challenging them here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478288/ | MEMORANDUM **
Gregory Morris Powderface appeals from the nine-month sentence imposed following revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Powderface contends his nine-month sentence is substantively unreasonable because prison alone does not serve the sentencing purposes of deterrence, protection of the public, and rehabilitation. In light of the totality of the circumstances of this case and the applicable 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See 18 U.S.C. § 3583(e)(3); Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Cope, 527 F.3d 944, 952 (9th Cir.2008) (applying reasonableness requirements to supervised release term).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478290/ | ORDER CERTIFYING STATE LAW QUESTION
ROBERT H. HENRY, Chief Judge.
Weed Warrior Services and Brenda Et-cheverry appeal the district court’s grant of summary judgment in favor of Progressive Northwestern Insurance Company (“Progressive”). At issue is whether the Etcheverrys’ decision to take uninsured/underinsured motorist (UM/UIM) coverage in a lesser amount than the general coverage under a commercial automobile insurance policy constitutes a “rejection” under the New Mexico uninsured *854motorist statute. The district court ruled that the Etcheverrys’ decision to take UM/ UIM coverage in a lesser amount did not constitute a rejection. This conclusion conflicts with another federal district court opinion and three New Mexico Court of Appeals decisions. Because the disposition of this appeal turns on an important and unsettled question of New Mexico law, we respectfully request the New Mexico Supreme Court to exercise its discretion to accept the following certified question:
Does the election to take UM/UIM coverage for less than the general policy liability limits constitute a rejection under the New Mexico uninsured motorist statute, N.M. Stat. §§ 66-5-301(A)?
The facts relevant to the determination of this certified question are set forth below.
Background
On September 26, 2000, Brenda Etchev-erry suffered injuries in a motor vehicle accident. She settled against the other driver involved for that driver’s policy limit — $100,000. Mrs. Etcheverry then sought additional recovery for her injuries from Progressive Northwestern Insurance Company under a commercial automobile insurance policy taken out by her husband for his company, Weed Warrior Services.1
The Etcheverrys’ policy with Progressive had general liability coverage for $1,000,000 and uninsured/underinsured (UM/UIM) motorist coverage for $100,000. Above the signature line on the application, signed by Mr. Etcheverry, were a number of statements, including: “I understand several options of Uninsured/Un-derinsured Motorists Coverage are available and they have been explained to me. The option selected on this application is the option I desire.” Aplt’s App. at 322 (Mem. Op. and Order, filed Dec. 5, 2008, 588 F.Supp.2d 1281).
Progressive filed suit, a diversity action in federal district court, requesting a declaratory judgment that it is not liable to Mrs. Etcheverry under the policy. The district court issued a memorandum opinion and order granting Progressive’s motion for summary judgment and issuing a declaratory judgment in its favor.
Mrs. Etcheverry then obtained new counsel and moved to amend the judgment pursuant to Fed.R.Civ.P. 59(e), arguing that her previous counsel had failed to notify her of Progressive’s declaratory judgment lawsuit. The district court entered an order allowing her to file an amended answer with a counterclaim.
Mrs. Etcheverry then filed a motion for summary judgment on her counterclaim, seeking reformation of Progressive’s coverage to raise the UM/UIM limits to match the liability limits of Progressive’s policy. Mrs. Etcheverry argued that the coverage under the UM/UIM provision of the policy should be deemed to be the same as the general liability limit — $1,000,-000 — because her election to take lesser coverage constituted a rejection under the New Mexico uninsured motorist statute. Rejections are strictly governed by the statute and must conform to specific provisions. Because the election of coverage of $100,000 did not conform to those provisions, Mrs. Etcheverry argued, the policy *855should be construed against Progressive and in favor of the general liability limit. The district court denied Mrs. Etchever-ry’s motion and dismissed the case with prejudice.
In dismissing the case, the district court ruled that the UM/UIM coverage provided to Mrs. Etcheverry was limited to $100,000. The district court considered whether “New Mexico law requires that anyone selecting UM/UIM coverage at a level less than their policy’s liability limits must execute a written rejection of the maximum limits and, in the absence of such a written rejection, a court must reform the policy to reflect UM/UIM coverage equal to the policy’s liability limits.” Id. The court, applying New Mexico state law, ruled that the selection of an amount of UM/UIM coverage less than a general liability amount did not constitute a rejection and thus refused to reform the policy.
The court first looked to the New Mexico statute regarding uninsured motorists, N.M. Stat. § 66-5-301(A). The statute requires that every automobile liability policy include the option of uninsured and underinsured motorist coverage. Prospective policyholders may choose not to purchase any UM/UIM coverage so long as the refusal is in writing. Additionally, the New Mexico Superintendent of Insurance has promulgated rules regarding UM/UIM coverage that require any rejection of coverage be made in writing as “part of the policy of bodily injury and property damage insurance.” Aplt’s App. at 323 (quoting N.M.Code R. § 13.12.3.9). Unless completely rejected, however, the New Mexico statute requires that the level of UM/UIM coverage provided by an insurance company must meet at least the minimum floor set by the Mandatory Financial Responsibility Act, N.M Stat. § 66-5-215, which is $25,000. The maximum amount available is the amount of the general coverage under the policy. Accordingly, as the district court acknowledged, “New Mexico’s statute stands in contrast to statutes in a number of other states that require an insured to purchase UM/UIM coverage with limits equal to their liability limits unless they specifically opt out.” Aplt’s App. at 323 (emphasis in original).
The court found that, in selecting the policy “Mr. Etcheverry affirmatively purchased” a higher limit than the minimum set out by the statute. Id. at 324. Thus, it concluded that the only way for Mrs. Etcheverry to prevail “is for the Court to find that the affirmative selection of a UM/ UIM coverage limit in any amount less than the full liability limits constitutes a ‘rejection’ of UM/UIM coverage that must be made in writing.” Id. In determining whether the selection of the $100,000 in coverage counts as a rejection, the district court looked to the legislative intent and plain meaning of the statute, observing that “[q]uite simply, nothing in the plain language of either the statute or the regulation can be read to indicate that the selection of any level of UM/UIM coverage less than full bodily injury liability coverage constitutes a ‘rejection’ of UM/UIM coverage requiring a written waiver.” Id. at 325. It found that the purpose of the statute and regulations is not to require or even encourage a particular amount of insurance to be purchased; rather, the purpose of the statute and regulations is to encourage some coverage of UM/UIM insurance and to ensure that any waiver or rejection of the UM/UIM coverage is done knowingly and voluntary. That purpose was satisfied here: the Etcheverrys had $100,000 UM/UIM coverage. Finally, the district court emphasized that the coverage amount was clearly stated in the insurance contract — in contrast to other cases in which the amount selected may have been confusing for the insured. Thus, the court granted summary judgment for Progressive.
*856Mrs. Etcheverry and Weed Warrior Services filed this appeal to overturn the district court’s ruling. In addition, they motioned the court to certify this case to the New Mexico Supreme Court. Progressive responded that it has “no position” on the motion to certify. However, it added that certification is unnecessary because there is sufficient precedent on this matter.
DISCUSSION
A. New Mexico certification statute
Under Tenth Circuit rules, “[w]hen state law permits, this court may .... certify a question arising under state law to that state’s highest court according to that court’s rules.” 10th Cir. R. 27.1(A). ‘Whether to certify a question of state law to the state supreme court is within the discretion of the federal court.” Armijo v. Ex Cam Inc., 843 F.2d 406, 407 (10th Cir.1988). The New Mexico certification statute states: “The supreme court of this state may answer a question of law certified to it by a court of the United States ... if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision or statute of this state.” N.M. Stat. § 39-7-4.
B. Ambiguity exists on the meaning of the New Mexico Uninsured Statute
Section A of the New Mexico uninsured motorist statute states that:
“No motor vehicle or automobile liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person and for injury to or destruction of property of others arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in New Mexico with respect to any motor vehicle registered or principally garaged in New Mexico unless coverage is provided therein or supplemental thereto ... for the protection of persons insured there under who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, and for injury to or destruction of property resulting therefrom, according to the rules and regulations promulgated by, and under provisions filed with and approved by, the superintendent of insurance.”
N.M. Stat. § 66-5-301(A). Section B of the statute expands this language to include underinsured motorist coverage. Id. § 66-5-301(B). Section C of the statute states: “The named insured shall have the right to reject uninsured motorist coverage as described in Subsections A and B of this section[.]” Id. § 66-5-301(C). The New Mexico Administrative Code, Tit. 13, Ch. 12, Part 3, “Uninsured and Unknown Motorist Coverage,” states the requirements for rejection of UM/UIM coverage — “[t]he rejection of the provisions covering damage caused by an uninsured or unknown motor vehicle as required in writing by the provisions of Section 66-5-301 N.M. Stat. 1978 must be endorsed, attached, stamped or otherwise made a part of the policy of bodily injury and property damage insurance.” N.M.Code R. § 13.12.3.9.
Four courts — a federal district court and three New Mexico courts of appeals — have decided the question of what rejection means under the statute differently from the district court below. See Farm Bur. Mut. Ins. Co. v. Jameson, 472 F.Supp.2d 1272 (D.N.M.2006); Romero v. Progressive Nw. Ins. Co., 148 N.M. 97, 230 P.3d 844, 849 (2009), cert. denied, No. 32,065, 147 N.M. 673, 227 P.3d 1055 (Jan. 7, 2010); Jordan v. Allstate Ins. Co., No. 28,638, 2009 WL 6634039, slip op. at 6 (N.M.Ct.App. Oct. 29, 2009), cert. denied, No. 32,063, 147 N.M. 673, 227 P.3d 1055 (Jan. 7, *8572010); Farmers Ins. Co. of Ariz. v. Chen, 148 N.M. 151, 231 P.3d 607, 608 (2010).
First, the federal district court in Farm Bureau Mutual Insurance Company v. Jameson, ruled that the election to take UM/UIM coverage in amount less than the general coverage constitutes a rejection under the New Mexico statute. 472 F.Supp.2d at 1280. The court looked first to a line of cases which equated the coverage for general liability and UM/UIM insurance. For example, the court pointed to a case where a state court found that the geographic parameters of the general liability coverage sets the geographic parameters for the UM/UIM coverage. See State Farm Mut. Auto. Ins. Co. v. Marquez, 130 N.M. 591, 28 P.3d 1132, 1135 (2001). This general line of cases, “suggests that the New Mexico judiciary reads § 66-5-301 as requiring UM coverage to be offered in an amount equal to liability coverage and as requiring that a rejection of such must be signed, written, and attached, stamped, or otherwise made a part of the policy.” Jameson, 472 F.Supp.2d at 1282. The court in Jameson also considered what it saw as the overarching aim and purpose of the statute — to make coverage as widely available as possible and to ensure the full range of coverage is offered to the consumer. Implementation of that policy, according to the Jameson court, requires proof that UM coverage was offered up to the maximum limits and, if not elected, evidence that the consumer affirmatively rejected such limits: “the Legislature has chosen statutorily to require that UM coverage be made available up to the liability limits .... the only way to effectively implement that is to place a duty on the insurance company to make that offer and to determine whether there has been a knowing rejection of that offer.” Id. (internal quotation marks and citations omitted). Finally, the court emphasized that a number of other states have similarly found that a decision to take less UM/UIM coverage than the general coverage amount is equivalent to a “rejection.” Id. (“The Court, moreover, recognizes that courts in several other states have reached similar conclusions to the one it reaches here on this issue. In interpreting their states’ UM statutes, the Supreme Court of Delaware and the Courts of Appeals in North Carolina, South Carolina, and Oregon have all done so.”).
In Romero v. Progressive Northwestern Insurance Comany, the New Mexico Court of Appeals, reached the same conclusion. 230 P.3d 844, 849. The Romero court first ruled that “New Mexico’s uninsured motorist statute requires insurers to offer UM/UIM coverage of not less than the minimum amount statutorily required and up to the level of the liability coverage contained within the policy.” Id. at 849. Next, the court stated that, given this requirement, it “logically follows that when an insured purchases UM/UIM coverage either in an amount less than their liability coverage or declines UM/UIM coverage altogether, the insured has rejected some or all of the available UM/UIM coverage.” Id. In another New Mexico Court of Appeals decision, Jordan v. Allstate Insurance Company, the court applied Romero and concluded that “a purchase of an amount less than the liability limit by the insured is a rejection of the UM/UIM coverage that is statutorily available to the insured.” 230 P.3d 844, 849. The New Mexico Court of Appeals also applied this decision in Farmers Insurance Company v. Chen, finding that “a purchase of an amount less than the liability limit by the insured is a rejection of the UM/UIM coverage that is statutorily available to the insured.” 231 P.3d 607, 609.
These cases demonstrate the ambiguity of the statute, § 66-5-301, and indicate the need for a definitive answer from the New Mexico Supreme Court. At the crux of *858this debate is the determination of the New Mexico legislature’s intent in passing the statute. See Smith Mach. Corp. v. Hesston, Inc., 102 N.M. 245, 694 P.2d 501, 503 (1985) (in interpreting a statute the court’s “duty is to find that interpretation which can most fairly be said to be imbedded in the statute in the sense of being most harmonious with its scheme and with the general purpose of the legislature” (quoting Pittsburgh and Midway Coal Mining Co. v. Revenue Division, Taxation and Revenue Dept., 99 N.M. 545, 660 P.2d 1027, 1041 (1983))). In our view, it is unclear whether the goal of the statute is simply to ensure that UM/UIM coverage is offered, or whether the goal is to encourage the greatest amount of UM/UIM coverage and to ensure that a consumer has specifically rejected UM/UIM limits equal to general liability limits.
As previously stated, there is support for both views of the statute’s purpose. The district court’s decision below, as well as the New Mexico Court of Appeal’s decision in Pielhau v. RLI Insurance Company, 144 N.M. 554, 189 P.3d 687, 691 (2008), conclude that offering some coverage is the goal. See Aplt’s App. at 323-24; Pielhau, 189 P.3d at 691 (“Our UM/UIM statute ... is a ‘minimum liability5 statute. New Mexico has no requirement that uninsured coverage must equal the policy’s coverage for bodily injury and property liability.... Athough, under the statute, the insured has the option of purchasing coverage up to these limits, coverage is statutorily required only to the minimum amounts set by the legislature. Accordingly, the policy purpose of the statute is met when the insured’s underlying automobile coverage provides minimum UM/ UIM coverage.”) Id. (emphasis added) (citations omitted). On the other hand, however, there are persuasive arguments lodged by other courts, such as the district court in Jameson, that the decision to take UM/UIM coverage in a lesser amount than the general coverage is a rejection of some coverage.
We also acknowledge the general trend to interpret the New Mexico uninsured statute broadly. The New Mexico Supreme Court has stated that the statute has a remedial purpose and thus, that the language of the statute must be interpreted liberally to further its objectives. Kaiser v. DeCarrera, 122 N.M. 221, 923 P.2d 588, 590 (1996). Thus, although a plausible reading of the statute supports Progressive’s position, other precedents suggest that the statute should be read liberally to aid policyholders who attempt to broaden the reach of this statute.
Given the tension between the cases addressing the issue, the ambiguity in the statute, and the lack of a New Mexico Supreme Court case settling this issue, we thus respectfully request that the New Mexico Supreme Court resolve this question of New Mexico state law. •
CONCLUSION
This court concludes that certification of this question of New Mexico state law will further the interests of comity and federalism by giving the New Mexico Supreme Court the opportunity to answer the question in the first instance, should it elect to do so. This court recognizes and appreciates the discretion of the New Mexico Supreme Court to reformulate the question posed herein.
The Clerk of this court shall transmit a copy of this certification order to counsel for all parties. The Clerk shall also forward, under the Tenth Circuit’s official seal, a copy of this certification order and the briefs filed in this court to the New Mexico Supreme Court. This appeal is ordered ABATED pending resolution of the certified question.
*859We greatly appreciate the consideration of this request by our honorable colleagues on the New Mexico Supreme Court.
. Before the district court, Progressive attempted to argue that the policy did not cover Mrs. Etcheverry. The district court ruled that Progressive had waived this argument by earlier making substantive arguments regarding the coverage. The court wrote that: "it considers Mrs. Etcheverry to be a covered insured in this case solely because of Progressive’s initial admissions. It expresses no opinion as to whether Mrs. Etcheverry would otherwise be considered a covered insured or if a similarly situated person under a similar policy should be considered a covered insured if injured while occupying a non-covered vehicle." (Aplt's App. 321 n. 5.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478291/ | PER CURIAM:
Gerald S. Bettman, appointed counsel for Jermaine Garfield Kerr in these two direct criminal appeals, has moved to withdraw from further representation of the appellant in both cases and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeals is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw from both appeals is GRANTED, and Kerr’s convictions and sentences are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478301/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478305/ | ORDER
Absent a response from the plaintiffs-appellants, Wylmina E. Hettinga, et al. to show cause why this appeal should not be transferred pursuant to this court’s order filed September 30, 2009,
IT IS ORDERED THAT:
The appeal is hereby transferred to the U.S. Court of Appeals for the Ninth Circuit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478310/ | ORDER
Petitioner having tiled the required Statement Concerning Discrimination, it is. ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 21 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478321/ | ORDER
PER CURIAM.
The judgment in this case is aj(firmed. We uphold the district court’s grant of summary judgment of no infringement based on the court’s determination that there are no genuine issues of material fact and that no reasonable jury could find that the accused devices of Microsoft and Nintendo meet the pulse width limitation of the asserted claims of Fenner’s U.S. Patent No. 6,297,751 literally or under the doctrine of equivalents. We need not and do not address Microsoft’s alternate ground for affirmance, nor do we address the question raised by Fenner whether the district court erred in its construction of the claim term “processor.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478323/ | SUMMARY ORDER
Appellant Michael Edwards appeals the district court’s judgment following a jury verdict for the defendants. He has also filed a “Motion for Relief on Pleadings for Denial of Access to Court,” and a “Motion Requesting Court of Appeals to Reverse Judgment.” We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues, and hold as follows.
Insofar as Edwards’s claim that his constitutional rights were violated when he was sexually assaulted during the body cavity search can be construed as challenging the sufficiency of the evidence at trial, that claim is without merit. In reviewing the sufficiency of the evidence in support of a jury verdict, this Court “examine[s] the evidence in the light most favorable to the party in whose favor the jury decided, drawing all reasonable inferences in the *184winning party’s favor.” Gronowski v. Spencer, 424 F.3d 285, 291 (2d Cir.2005). “In so doing, [the Court] cannot weigh conflicting evidence, determine the credibility of witnesses, or substitute [its] judgment for that of the jury.” Id. at 292. This Court “will overturn a verdict only if there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the [appellant] that reasonable and fair minded men could not arrive at a verdict against [the appellant].” Id. (internal quotation omitted). Here, the trial testimony constitutes sufficient evidence to support a finding that defendants did not violate Edwards’s constitutional rights because defendants each testified that no sexual assault took place, and the videotape of the incident did not demonstrate that any sexual assault had occurred. The credibility of the defendants’ testimony and the videotape was an issue for the jury and cannot be determined by this Court. See Gronowski, 424 F.3d at 292. Accordingly, there is no basis on which to challenge the jury verdict.
As for Edwards’s claim that the district court erroneously instructed the jury that a violation of the Department of Correction’s internal directives was not tantamount to a violation of plaintiffs constitutional rights, the claim is subject to the plain error standard where, as here, plaintiff did not object to the instruction. See Fed.R.Civ.P. 51(d); see also Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 96 (2d Cir.1998) (applying plain error review to jury instructions to which defendant did not object). Far from being plain error, the claim must fail because the instruction was a correct statement of law. The violation of a prison regulation does not automatically establish that all the elements of an Eighth Amendment violation have been satisfied. Thus, the district court did not misapply the law in its jury instruction.
Next, Edwards’s claim that defendants inflicted cruel and unusual punishment by conducting an unconstitutional visual body cavity search not within department directives is similarly unavailing. Insofar as his claim is based on the fact that the search was not contained within department directives, it is without merit. Insofar as the claim can be construed as an excessive force claim separately premised on a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment, it is also without merit. The Eighth Amendment prohibits “cruel and unusual punishments,” which includes the “ ‘unnecessary and wanton infliction of pain.’” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.1999) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). For excessive force claims, “the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). However, the credibility of defendants’ testimony that no sexual assault took place, and their proffered videotape of the incident refuting Edwards’s claims, was an issue for the jury and cannot be determined by this Court. See Gronowski, 424 F.3d at 292.
Finally, Edwards’s argument that defendants committed perjury at trial when they stated that Edwards was the only inmate who resisted the strip search is without merit. While several witnesses testified that in their experience they had not had other inmates refuse the search, Edwards has not provided any evidence, nor alleged any facts, to support his contention.
*185The judgment of the district court is hereby AFFIRMED and the pending motions are DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478325/ | SUMMARY ORDER
Appellants Edward and Rosemary Brady appeal from the district court’s judgment dismissing their complaint for lack of subject matter jurisdiction. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
We review the dismissal of a complaint for lack of subject matter jurisdiction de novo. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d Cir.2005). “A case is properly dismissed for lack of subject matter jurisdiction under [Fed.R.Civ.P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). A plaintiff asserting jurisdiction has the burden of proving that jurisdiction exists by a preponderance of the evidence. Id.
Having conducted an independent and de novo review of the record in light of these principles, we affirm the district court's judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. Accordingly, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478330/ | SUMMARY ORDER
Benjamin Mitchell, pro se, incarcerated, and proceeding informa pauperis, appeals a judgment of the district court sua sponte dismissing his complaint without prejudice. Mitchell alleged constitutional violations and violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Dismissal was for failure to effect timely service upon the defendants, pursuant to Federal Rule of Civil Procedure 4(m). The district court adopted the report and recommendation of a magistrate judge, to which Mitchell filed no objections. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court has adopted the rule that failure to timely object to a magistrate judge’s report and recommendation “may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.” United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir.1997); see also Wesolek v. Canadair Limited, 838 F.2d 55, 58 (2d Cir.1988); Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (holding that a Court of Appeals may adopt such a rule). While this rule, which applies to pro se litigants, is “a nonjurisdic-tional waiver provision whose violation we may excuse in the interests of justice,” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993), we have no basis for doing so here. None of Mitchell’s arguments on appeal has substantial merit. See Weso-lek, 838 F.2d at 58.
Since the district court dismissed the complaint without prejudice, Mitchell is *258not barred from filing (and properly serving) a new complaint raising the same allegations — although we express no opinion on whether such a complaint would be barred by the statute of limitations or other grounds.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478332/ | OPINION
PER CURIAM.
Robert Gene Rega, a Pennsylvania state prisoner proceeding pro se, appeals from an order of the United States District Court for the Western District of Pennsylvania denying his motions for an “emergency restraining order,” a permanent injunction, and for appointment of counsel. We will dismiss the appeal in part pursuant to 28 U.S.C. § 1915(e)(2)(B) and in part for lack of jurisdiction.
Rega brought a § 1983 Complaint against prison personnel, which he amended twice, asserting numerous constitutional violations related to the conditions of his confinement. In particular, he claimed that he was assaulted in his cell by another inmate in 2007, he received poor medical treatment for his injuries immediately after the assault, and there was an unnecessary eight-day delay in providing him with Prilosec for treatment of his serious gas-troesophageal reflux disease (“G.E.R.D.”) condition in 2007. Rega filed motions for an emergency restraining order and for a permanent injunction, claiming that his six-month supply of Prilosec ran out on June 23, 2009, and that the medical staff failed to reorder his prescription of Prilo-sec in time, causing him great discomfort on June 25. The defendants responded that both motions should be denied. The Magistrate Judge treated the permanent injunction and emergency restraining order motions as a request for a preliminary injunction and denied relief, ruling that Rega failed to show that such relief was warranted because he had received his medication on June 26. By order entered on October 7, 2009, the District Court overruled Rega’s objections, adopted and approved the Magistrate Judge’s Report, and denied Rega’s motions. Rega also filed two motions for appointment of counsel, which the Magistrate Judge denied. *318By order entered November 10, 2009, the District Court overruled and dismissed Rega’s objections to the Magistrate Judge’s order. This appeal followed.
We have jurisdiction of appeals from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions....” 28 U.S.C. § 1292(a)(1). An order denying a motion for a preliminary injunction is appealable where the order relates to the relief ultimately sought by the claimant. Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1277-78 (3d Cir.1991). Rega sought a preliminary injunction ordering the defendants to stop the constitutional violations related to those alleged in his complaint. The District Court’s order denying Rega’s motion relates to the relief he ultimately sought. Thus, the order is appeal-able under § 1292(a)(1).
The District Court did not err in denying Rega’s motion for a preliminary injunction. Rega was required to show that he was likely to succeed on the merits of his claim, that the denial of relief would result in irreparable harm, and that granting the injunction would not result in irreparable harm to the defendants and was in the public interest. Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir.1998). We agree with the Magistrate Judge’s conclusion that Rega failed to make such a showing as he cannot demonstrate that denial of relief would result in irreparable harm. The prison was in the process of reordering the prescription when Rega requested the District Court’s immediate intervention. The day after he filed the motion, the prison provided him with a six-month supply of Prilosec.
To the extent that Rega appeals from the District Court’s order denying appointment of counsel, we will dismiss the appeal without prejudice for lack of jurisdiction because the order is not appealable at this time. See 28 U.S.C. § 1291; Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.1984) (concluding that a district court order denying a motion for appointment of counsel may normally be reviewed only after a final judgment has been entered in the case).
Accordingly, we will dismiss the appeal in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and in part for lack of jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478333/ | OPINION
PER CURIAM.
Charles Murray, proceeding pro se, appeals from the District Court’s orders dismissing his case and denying his motion for reconsideration, respectively. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In June 2009, Murray filed a pro se petition under 28 U.S.C. § 1361 for a writ of mandamus in the District of New Jersey, seeking an order to compel federal prison officials to authorize his pre-release transfer to a Residential Re-Entry Center (“RRC”). In his complaint, Murray alleged that while he had been approved for a pre-release transfer to an RRC, he was informed that the transfer was dependent upon his executing a Community Based Agreement Form. This form includes a provision that Murray would agree to make payments to contribute to the cost of the residence. Murray challenged that term of the agreement, asserting that all expenses attendant to his incarceration must be paid out of the United States Treasury, pursuant to 18 U.S.C. § 4007, and that he is exempt from paying any cost of incarceration fee, pursuant to 28 C.F.R. § 505.3. Murray also argued that his failure to exhaust administrative remedies prior to filing the complaint should be excused, as exhaustion would be “an exercise in futility” and the time lost during the administrative appeal process would be highly prejudicial.1
*320The District Court interpreted Murrays petition for a writ of mandamus as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. On July 10, 2009, 2009 WL 2044821, the District Court dismissed Murray’s petition sua sponte for failure to exhaust administrative remedies. The District Court also found that, to the extent failure to exhaust could be excused, Mur-rays petition is without merit because the Bureau of Prisons (“BOP”) acted within its statutory authority in conditioning pre-re-lease transfer upon execution of a Community Based Program Agreement. On September 28, 2009, the District Court denied Murrays motion for reconsideration. Murray now appeals to this Court from the District Court’s July 10 and September 28 orders.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s dismissal. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.1996); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n. 3 (3d Cir.2005). We generally review a district court’s decision on a motion for reconsideration for abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999). Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
Murray filed his petition for a writ of mandamus pursuant to 28 U.S.C. § 1361. A district court has jurisdiction over mandamus actions “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is to be issued only in extraordinary circumstances, where the petitioner demonstrates that he has no alternative means to achieve the relief sought, and that he has a clear and indisputable right to the writ. See Stehney, 101 F.3d at 934 & n. 6.
We agree with the District Court that Murray has failed to establish that he has a clear and indisputable right to pre-re-lease placement in an RRC without participating in the subsistence program.2 The BOP is authorized to collect a subsistence fee from a federal prisoner for the costs of his confinement in community corrections centers, including RRC’s. The subsistence program, which requires inmates to pay a portion of the cost of the RRC, is a condition of placement in the RRC imposed to encourage financial responsibility in order that inmates may reintegrate into society. The subsistence program arises from BOP policy and emanates from the BOP’s general statutory authority to manage the prisons. See 18 U.S.C. §§ 4042(a), 3624(c)(1).
Accordingly, we will summarily affirm the District Court’s orders dismissing the *321complaint and denying Murray’s motion for reconsideration.
. When presented with the form, Murray attempted to challenge the provision by amending the language to state that he would only make payments “when authorized under statutory law or code of federal regulations." The BOP thereafter charged and sanctioned Murray with forgery and counterfeit of an official document. As a result of this incident, Murray filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. In this *320complaint, which is currently pending in the District of New Jersey, Murray has asked the District Court to order the BOP to reverse its findings of forgery and to restore all privileges that were lost as sanctions. See D.N.J. l:09-cv-4347.
. We note that the District Court treated Murray's petition as a petition for writ of habeas corpus instead of a petition for mandamus. This Court has held that a habeas petition pursuant to 28 U.S.C. § 2241 is the appropriate way to challenge BOP regulations (including placement in a community correction center or halfway house) because what is at issue is the “execution” of the prisoner’s sentence and not the "conditions” of his confinement. See Woodall, 432 F.3d at 241-44. Regardless, we agree with the District Court in its September 28 order that Murray’s petition is meritless whether it is construed as arising under § 2241 or§ 1631. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478337/ | OPINION
PER CURIAM.
Kermit Ceasar appeals from the District Court’s order dismissing his habeas petition pursuant to 28 U.S.C. § 2241 for lack of subject matter jurisdiction. We will summarily affirm because we agree that Ceasar cannot challenge his conviction by means of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
I.
In December 2002, the United States District Court for the District of New Hampshire imposed a 324-month sentence based on Ceasar’s guilty plea to distribution of crack cocaine and conspiracy to distribute and possess with intent to distribute crack cocaine.1 The United States Court of Appeals for the First Circuit affirmed. In July 2009, Ceasar filed this petition, his third collateral attack on his conviction, but his first attempt at proceeding under § 2241, claiming that he was denied the right to counsel during plea negotiations, that he is actually innocent of the conspiracy charge, and that the trial court lacked subject matter jurisdiction. After determining that the sentencing court could have entertained Ceasar’s claims, the District Court concluded that § 2255 was not “inadequate” or “ineffee-*324tive.” See § 2255; In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). Therefore, the District Court dismissed the § 2241 petition for lack of jurisdiction. Ceasar appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A certificate of appeala-bility is not required to appeal from the denial of this § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
III.
The District Court properly dismissed Ceasar’s petition. A federal prisoner can seek relief under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002); Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Lack of success in a previous § 2255 motion, without more, does not render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive § 2255 motions. See Cradle, 290 F.3d at 539. We agree with the District Court that Ceasar’s case does not fit within the narrow class of circumstances in which a § 2255 motion would be inadequate or ineffective to challenge a conviction. Accordingly, the District Court’s dismissal of the petition on jurisdictional grounds was proper. Because no “substantial question” is presented by this appeal, we will affirm the order of the District Court.
. The sentence later was reduced to 262 months pursuant to 18 U.S.C. § 3582(c)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478339/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellant Diana DiMare filed a complaint against her former employer, Met-Life Insurance Company (“MetLife”), asserting claims under the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq., and tort claims under New Jersey common law. DiMare appeals the District Court’s decisions to grant MetLife’s motion to dismiss certain claims and motion for summary judgment on the remaining claims. For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will recite only the facts essential to our analysis. DiMare joined MetLife as a financial associate in August 1991. She held various positions there until February 2006. On February 10, 2006, DiMare went on short-term disability leave due to a diagnosis of breast cancer. In August 2006, DiMare transitioned to long-term disability leave. In late January 2007, DiMare informed MetLife that she would return to work on February 12, 2007. However, DiMare’s previous position had been filled during her absence by Paula Fitzgibbon, another female employee. Prior to DiMare’s return, MetLife notified her that her position had been filled and that she was eligible for the MetLife Plan for Transition Assistance for Officers severance package, or in the alternative, she could attempt to find another position within MetLife. MetLife further *327advised DiMare that if she was unsuccessful in securing another job within thirty days, she would be terminated and immediately eligible for the severance package. From early February 2007 until March 15, 2007, DiMare did not receive a salary. She instead utilized her outstanding paid time off while she attempted to find another position within MetLife. DiMare failed to secure another position, and on March 15, 2007 MetLife terminated her employment.
On August 9, 2007, DiMare filed a complaint against MetLife in New Jersey Superior Court. MetLife removed the action to the District Court on September 7, 2007. DiMare’s complaint alleged employment discrimination based on medical disability and gender and reprisal in violation of the NJLAD, breach of express contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation.
MetLife filed a motion to dismiss on October 8, 2007. The District Court dismissed the reprisal claim because DiMare failed to establish that a medical leave of absence is a protected activity under the NJLAD and even if it were, DiMare failed to establish a causal link between her medical leave of absence and her termination. The District Court dismissed both breach of contract claims, as well as the claims for breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and intentional infliction of emotional distress as preempted by the NJLAD claims. The District Court dismissed the fraudulent misrepresentation claim because it failed to allege the specific facts required to withstand a motion to dismiss.
On September 12, 2008, MetLife moved for summary judgment on the remaining causes of action, discrimination based on medical disability and gender. MetLife asserted that it terminated DiMare because of the “elimination of her position and her failure to secure another position within 30 days after returning from a leave of absence in accordance with MetLife’s Leave Discontinuance Procedure [the “Procedure”].” Appellant’s Appendix (“Appellant’s App.”) 18. The District Court held that DiMare failed to demonstrate that MetLife’s proffered explanation was a pretext for discrimination, and granted MetLife’s motion for summary judgment. DiMare appealed to this Court.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1382. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). We will view the evidence in the light most favorable to DiMare and draw all justifiable, reasonable inferences in her favor. Id. We will affirm if “there is no genuine issue as to any material fact” and the defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
We exercise plenary review of the District Court’s dismissal of DiMare’s claims under Fed.R.Civ.P. 12(b)(6). See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). We must “ ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’ ” Grammer v. John J. Kane Reg’l Ctrs. Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009) (quoting Phillips v. County of *328Allegheny, 515 F.3d 224, 233 (3d Cir.2008)).
III.
A.
DiMare appeals the District Court’s decision to grant summary judgment to MetLife on her gender and disability discrimination claims.1 In the absence of direct evidence of discrimination, an employee asserting a claim under the NJLAD may prove discrimination using the three-step burden-shifting inquiry established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Bergen Commercial Bank v. Sisler, 157 N.J. 188, 723 A.2d 944, 954-55 (1999). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff succeeds, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s termination. Id. Once the employer meets its “relatively light burden,” the burden of production returns to the plaintiff, who must show by a preponderance of the evidence that the employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). To defeat summary judgment at the pretext stage, “the plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Id. at 764. Despite the burden-shifting, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
MetLife asserts that DiMare was terminated due to the elimination of her position and her failure to secure another position within thirty days of her return from leave, in accordance with the Procedure. Assuming, without deciding, that DiMare has established a prima facie case of discrimination, she fails to come forth with any evidence whatsoever that Met-Life’s articulated reason for terminating her employment was a pretext for discrimination.
The evidence shows that MetLife replaced and later terminated DiMare in accordance with the Procedure. The Procedure states that “[an employee] may be replaced if he/she does not return to work after FMLA/state law leave has been exhausted unless the manager grants a leave of absence. However, unless there is a significant business need, Company practice is not to replace until such time that the [employee] moves onto long term disability.” Appellant’s App. 461 (emphasis added). MetLife’s practice is to hold a position open for an employee on an approved leave of absence for a maximum of six months. Id. at 456. If MetLife has replaced an employee who was out on *329long-term disability and that employee wants to return to work, the Procedure instructs human resources to “put the [employee] on an unpaid leave of absence so equivalent opportunities can be explored .... If no opportunity is found within about 30 days, proceed with termination due to job elimination.” Id. at 461.
DiMare’s leave extended from February 2006 to January 2007, and her long-term disability began in August 2006. Thus, MetLife’s decision to fill DiMare’s position was consistent with the Procedure. Furthermore, the evidence shows that Gina Cochran of MetLife Human Resources circulated DiMare’s resume to other departments of the organization in which DiMare had expressed an interest. DiMare fails to proffer any evidence whatsoever that Met-Life’s decision not to hire her for another position was a pretext for discrimination.
The undisputed evidence is that MetLife had in place a non-discriminatory policy that allowed it to fill DiMare’s position while she was on leave and that it adhered to that policy. In sum, DiMare has failed to establish a genuine issue of material fact sufficient for a factfinder to reasonably either: 1) disbelieve MetLife’s assertion that it terminated DiMare because her position had been filled while she was on long term disability and she failed to secure another position within thirty days; or 2) believe that invidious discrimination was more likely the motivating cause of MetLife’s actions. See Fuentes, 32 F.3d at 764. Accordingly, the District Court properly granted MetLife’s motion for summary judgment on DiMare’s claims of gender and disability discrimination.
B.
DiMare also appeals the District Court’s Rule 12(b)(6) dismissal of her claims for breach of implied contract, intentional infliction of emotional distress, and fraudulent misrepresentation.2
1.
A fraudulent misrepresentation under New Jersey law “consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.” Voilas v. Gen. Motors Corp., 170 F.3d 367, 376 (3d Cir.1999) (internal citations omitted). A party alleging fraud “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). This Court has held that to satisfy Rule 9(b), a plaintiff “must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the ‘precise misconduct with which [it is] charged.’ ” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.2007) (alteration in original) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir.2004)). This requires a plaintiff to either plead the date, time, and place of the alleged fraud, or inject precision into the allegations by some alternative means. See id.
The District Court found that the fraud claim was supported only by a “conclusory allegation” that “MetLife had expressly knowingly, intentionally, recklessly and/or negligently misrepresented its intent to continue to gainfully employ Plaintiff ... with the intention/knowledge that Plaintiff *330would rely upon same.” Appellant’s App. 10-11 (citing Compl. ¶ 32).
On appeal, DiMare argues that the complaint “describes the misrepresentation that Plaintiff was promised her job position would be held open for her when she returned from medical leave” and “the misrepresentation wherein Appellant was promised that she would be continually employed.” DiMare Br. 22. In determining the sufficiency of DiMare’s allegations under Rule 9(b), we look only to the complaint; we will not consider the allegations in DiMare’s brief. See Frederico, 507 F.3d at 201-02 (refusing to consider allegations in appellant’s brief that did not appear in the complaint).
The complaint does not support Di-Mare’s argument. In her complaint, Di-Mare makes generic references to the fact that she was “welcomed back” to work at the Bridgewater facility and was “welcomed back” at a bi-annual meeting on January 30, 2007 before she was told that her job had been eliminated. Appellant’s App. 538. The complaint does not describe any representations whatsoever made by MetLife either before or after DiMare’s absence that DiMare’s job would be “held open for her” or that she would remain “continually employed.” DiMare’s complaint also fails to disclose the identity of the person who made the allegedly fraudulent misrepresentations.
Without such details MetLife was not placed “on notice of the precise misconduct with which [it was] charged.” Frederico, 507 F.3d at 200-01 (quotations omitted) (noting that plaintiff failed to place defendant on notice by neglecting to plead the substance of the alleged misrepresentations, the circumstances surrounding the alleged fraudulent statements and any information about the individual who made the statements); see also Lum, 361 F.3d at 224 (“Plaintiffs also must allege who made a misrepresentation to whom and the general content of the misrepresentation.”); Klein v. Gen. Nutrition Cos., Inc., 186 F.3d 338, 345 (3d Cir.1999) (holding that Rule 9(b) “requires, at a minimum, that the plaintiff identify the speaker of allegedly fraudulent statements”).
DiMare argues that this Court should apply a relaxed particularity standard because the factual information relating to the fraud is peculiarly within Met-Life’s knowledge or control. This Court has held that in cases such as corporate fraud, a plaintiff “cannot be expected to have personal knowledge of the details of corporate internal affairs” and thus has “relaxed the rule when factual information is peculiarly within the defendant’s knowledge or control.” In re Craftmatic Sec. Litig., 890 F.2d 628, 645 (3d Cir.1989). However, in such circumstances, the plaintiff must expressly allege that the necessary information lies within the defendant’s exclusive control and provide facts sufficient to indicate that the charges are not baseless. F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir.1994). DiMare has done neither. Furthermore, information about the person who made the allegedly fraudulent statements and the content of those statements is not peculiarly within MetLife’s knowledge or control.
2.
DiMare’s argument that the District Court erred in dismissing her claims for breach of implied contract and intentional infliction of emotional distress also fails. The District Court, in dismissing these claims, held that they were preempted by the NJLAD. DiMare’s opening brief argues that she set forth a prima facie case for both of these claims, however, it completely fails to address the District Court’s determination that these claims were preempted. Although DiMare *331argues in her reply brief that the claims were not preempted, we conclude that her failure to bring the issue up in her opening brief constitutes a waiver of this argument on appeal. See In re Surrick, 838 F.3d 224, 237 (3d Cir.2003).
IV.
For the reasons stated above, we will affirm the decisions of the District Court.
. DiMare argues that the District Court erred in considering a motion for summary judgment so close to trial and without oral argument. We need not dwell on this argument. Rule 56(a)(1) of the Federal Rules of Civil Procedure provides that a party may move for summary judgment at any time once "20 days have passed from commencement of the action.” Fed.R.Civ.P. 56(a)(1) (2008) (amended 2009). Further, pursuant to Rule 78 of the Federal Rules of Civil Procedure and N.J. Civil Local Rule 78.1, motions may be decided on the briefs and without oral argument. The District Court properly considered Met-Life's motion for summary judgment.
. DiMare does not appeal the District Court's decision to dismiss her claims of breach of express contract, breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and her reprisal claim under the NJLAD. Thus, DiMare has “abandoned and waived" those issues and this Court need not address them. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478342/ | *332OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Manley Grey a/k/a John Low pleaded guilty to conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) and use of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)). Grey was sentenced to 191 months imprisonment. Grey challenges his sentence. We will affirm.
I.
Grey conspired along with three others to rob an armored car. Enlisting Evrol Dean, an employee of the armored car company, the four planned to sneak Grey and another co-conspirator into the armored car through an unlocked door. Grey and the cohort would then “instruct” Dean to drive to a secluded location. The fourth member of the conspiracy, Marvin Tillman, agreed to follow the armored car and transfer the money to his getaway vehicle. According to Grey, the amount they planned to steal was approximately $150,000. However, the targeted armored car would be carrying over $1 million on the day of the robbery.
The four men committed the robbery on February 14, 2006. Dean, as planned, left one of the doors to the armored vehicle unlocked as he entered a bank in Livingston, New Jersey with his unwitting partner. Grey and a fellow co-conspirator, armed with handguns, entered the truck and waited while the vehicle was stopped tó pick up a deposit. Once Dean and his partner returned, Grey pointed his gun at Dean’s partner and instructed him not to move. When Dean’s partner attempted to foil the robbery, Grey shot him twice at point-blank range. The partner leaped from the armored car and called for help. His life was saved only by his bullet-proof vest.
Grey and his co-conspirators, now in sole possession of the armored car, drove approximately 200 feet. They then stopped, exited the armored car, and emptied sacks of money (approximately $90,000) into Tillman’s getaway vehicle. Police apprehended Grey and his co-conspirators after a high speed chase.
Grey was charged in three counts of a four-count indictment and pleaded guilty to two charges: conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). At sentencing, the District Court found Grey responsible for over $1 million in loss, stating that “for a period of time [the defendants] were in sole control of an armored car with $ 1.1 million.” Consequently, the District Court imposed a four-level sentencing enhancement under United States Sentencing Guideline § 2B3.1(b)(7)(E) (2008).1 Grey challenges his sentence on two grounds, arguing the District Court erred in its loss calculation and failed to give adequate consideration to the 18 U.S.C. § 3553(a) factors.2
*333II.
Grey contends the court erred by calculating loss to be $1.165 million because the conspirators did not intend to steal more than $150,000 and in fact only “stole” approximately $90,000. Grey argues that loss, as outlined in U.S.S.G. § 2B1.1 cmt. n. 3(A)(ii), must be calculated only on the pecuniary harm that was intended to result from the offense.3 The District Court here correctly calculated loss in accordance with § 2B3.1, which addresses robbery, not § 2B1.1 cmt. n. 3, which addresses theft, embezzlement, receipt of stolen property, property destruction and offenses involving fraud or deceit. See United States v. Allen, 516 F.3d 364, 378-379 (6th Cir.2008) (finding the Commission’s amendment to § 2B1.1, instructing courts to use “the greater of actual loss or intended loss,” did not affect the definition of loss under § 2B3.1).
Section 2B3.1 cmt. n. 3 defines “loss” for purposes of robbery as “the value of the property taken, damaged or destroyed.” It is undisputed that the total amount of cash in the armored car was $1.165 million. When Grey and his co-conspirators commandeered the armored car, they took dominion and control over the total amount of $1.165 million. By exercising such dominion and control, Grey and his co-eon-spirators had “taken” all the money in the armored car as that term is set forth under § 2B3.1 cmt. n. 3. Grey and his co-conspirators moved the cash at will when they drove away in the armored car. They had seized the entire amount. Accordingly, the loss calculation must include the entire amount. Thus, the District Court’s loss calculation correctly reflects the amount which Grey had “taken” as $1.165 million.4
In United States v. Allen, the Court of Appeals for the Sixth Circuit held “a robber ‘takes’ an object, for purposes of § 2B3.1, when the robber exercises dominion and control over that object, such that the robber has completed the acts necessary to seize that object.” 516 F.3d at 380. In Allen, all co-conspirators pleaded guilty to stealing rare, expensive books from a university library. Id. at 366. In the course of the theft, defendants realized they were ill-prepared to remove such a large number of books, so they decided to leave those they could not carry. Id. at 369. The defendants were caught attempting to escape via a stairwell by a librarian. Id. Frightened at being discovered, they dropped several of the stolen books before fleeing the library. Id. The district court declined to include in the loss calculation the value of the books the defendants could not carry or dropped.
*334The government appealed the sentence and the Sixth Circuit concluded the district court’s loss calculation should have included the books left behind and dropped by the defendants. Id. at 381. The court found that the defendants had taken all the books because “they moved them at will; they could have damaged them, destroyed them, hidden them, played with them or — as they did — prepared them to be carried away.” Id.
Similarly, the Second Circuit has held loss calculation includes property over which the defendant exercised only temporary dominion and control. United States v. Parker; 903 F.2d 91, 105 (2d Cir.1990).5 The defendants in Parker conspired to rob a deposit vehicle belonging to a check cashing firm. Id. at 95-96. After stealing the vehicle, the defendants transferred a substantial portion, but not all, of the money into a getaway car and fled. Id. at 96. The court found the defendants responsible for the entire amount of money in the stolen deposit vehicle because they had exercised dominion and control over the entire lot of cash. Id. at 105. Although a portion of the money was not transferred into the getaway car that “[did] not mean that they had not taken it.” Id.
Accordingly, the District Court correctly calculated loss under the Sentencing Guidelines.
III.
Grey also argues the District Court’s sentence is unreasonable because it failed to adequately consider the 18 U.S.C. § 3553(a) factors in sentencing him at the high end of the advisory guideline range.
We evaluate a sentence by reviewing the court’s record considering the relevant factors in § 3553(a). United States v. King, 454 F.3d 187, 194 (3d Cir.2006). The sentencing judge need not explicitly comment on every factor if “the record makes clear the court took the factors into account in sentencing.” United States v. Howe, 543 F.3d 128, 137 (3d Cir.2008). We are satisfied that the District Court adequately considered and weighed the § 3553(a) factors.
The District Court took care to consider and explain its sentence to Grey. Grey argued he was less culpable than his co-defendants, that he had no intent to shoot the security guard, and that the poor conditions at the jail in which Grey was held before trial warranted a reduction in sentence. Despite Grey’s mitigating arguments, the District Court reasonably cited the seriousness of the offense6 under 18 U.S.C. § 3553(a)(1) and (2)(A) and the need to deter Grey and others under § 3553(a)(2)(B).
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. Under U.S.S.G. § 2B3.1(b)(7)(E), a four-level enhancement is applied for a loss of more than $800,000 but less than $1,500,000.
Applying the four-level enhancement provided in U.S.S.G. § 2B3.1(b)(7)(E), the Court arrived at a total offense level of 25, which, when coupled with Grey's criminal history of I, yielded an advisory Guidelines range of 57-71 months on the conspiracy count, to be followed by a mandatory consecutive sentence of 120 months on the § 924(c) conviction. As noted, the court sentenced Grey to 191 months imprisonment; 71 months on Count 1 followed by a mandatory consecutive 120-month sentence on Count 4.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over Grey’s appeal under 18 U.S.C. § 3742(a). We review a district *333court’s determination of loss for clear error. United States v. Brennan, 326 F.3d 176, 194 (3d Cir.2003). We review a district court's sentence for reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. Grey fails to note that “intended loss” also “includes intended pecuniary harm that would have been impossible or unlikely to occur....” See U.S.S.G. § 2B1.1. cmt. n. 3(A)(ii)(II).
. Relying on United States v. Collado, 975 F.2d 985 (3d Cir.1992), Grey also argues he should not be held responsible for the amount of money stolen by his co-conspirators because he only agreed to steal between $100,000 and $150,000. However, in Collado we addressed an issue of accomplice attribution in which the defendant in a conspiracy had not performed the criminal acts charged. That argument is inapplicable here. Grey acted with his co-conspirators in stealing the armored car and the cash inside. The District Court did not rely upon the actions of others, exclusive of Grey’s own actions, to calculate Grey's base offense level. Thus, because Grey actively participated in the robbery, Collado's accomplice attribution argument does not apply.
. The Parker court interpreted the same language contained in what is now § 2B3.1 cmt. n. 3 prior to the Commission's amendments to § 2B 1.1. At the time Parker was decided, § 2B1.1 defined "loss” as "the value of the property taken, damaged or destroyed.” U.S.S.G. § 2B1.1. cmt. n. 2 (1990).
. As the Government properly pointed out, Grey was “the most culpable of all the defendants involved in this case,” as he "actually shot an innocent man” after pointing a loaded gun at him. The Court stressed the seriousness of this conduct, noting that a mere fortuity was all that prevented this prosecution from being one for "murder.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478344/ | OPINION
PER CURIAM.
Petitioner, Jian Jiang, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the *336following reasons, we will deny his petition.
I.
Jiang, a native and citizen of China, entered the United States without inspection on October 27, 2006. At a credible fear interview several days later, he told an asylum officer that he left China because he was Catholic, and Catholics are not permitted to practice their religion, attend high school or university, or earn a decent living in China. When the asylum officer asked him whether anything in particular happened to convince him to leave home, he stated as follows: “By then I figured out that I could not make a living in China. I decided to come to the Untied States. In China the work I can do only pays minimum money and I cannot make a living there.” (AR 000290.)
On June 7, 2007, Jiang filed an application for asylum and related relief. At his removal hearing, Jiang testified that he had been arrested, beaten, and detained on two separate occasions for participating in an underground Catholic church. First, on November 15, 2000, security officers at his school detained him and accused him of propagating Catholicism to his classmates. According to Jiang, the officers beat him and held him for ten hours before releasing him. Next, in December 2004, local officials raided a youth church gathering he was attending, arrested him, beat him, and detained him for two days.
Jiang told the court that, after this last incident, village officials went to his home, where they discovered religious materials. At that time, officials warned Jiang’s parents that if they caught him, he would be punished and imprisoned. As a result, Jiang fled to his aunt’s home and arranged to leave the country.1
After the hearing, the IJ found that Jiang was not credible because his testimony that day was inconsistent with the testimony he gave at his 2006 credible fear interview. The IJ also found that his story was inconsistent with the background materials submitted in his case. Therefore, the IJ found that he had failed to demonstrate eligibility for asylum on the basis of either past persecution or a well-founded fear of future persecution under INA § 101 (a)(42) (A). See 8 U.S.C. § 1101(a)(42). In light of this adverse credibility determination, the IJ also denied Jiang’s applications for withholding of removal and relief under the Convention Against Torture. Upon review, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. Jiang now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
*337On appeal, Jiang first argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree, as the record reveals important inconsistencies in Jiang’s story. Most significantly, when an asylum officer interviewed Jiang in 2006, he stated that he left China because he could not earn a living there, and did not mention to the officer that he had been arrested,2 beaten, and detained on two occasions for practicing Catholicism. Given that these arrests became the heart of his asylum claim, we cannot disagree with the BIA and IJ that this inconsistency greatly undermined Jiang’s credibility. See 8 U.S.C. § 1252(b)(4)(B).
Jiang now argues that the BIA and IJ failed to “fairly evaluate” his explanation for this omission, which — he claims — was that he did not mention the arrests at his credible fear interview because “there were no governmental law enforcement personnel involved in the arrest, nor was there any criminal allegation lodged against him.” (Br. 16-17.) This is not, however, the explanation that Jiang provided to the IJ at his removal hearing. Rather, at that time, he claimed that the reason he told the asylum officer that he had never been arrested was because the question had been asked as part of a narrower inquiry into a specific incident: “At the time I — that was asked when the, the church was being destroyed the priest and other members were not arrested and I was asked if I was also arrested and I said no.” (AR 000119.) Given that the explanation Jiang proposes on appeal was never proposed to either the IJ or the BIA, we cannot agree that the BIA failed to “fairly evaluate” it.
On appeal, Jiang also challenges the BIA’s decision insofar as it affirmed the IJ’s determination that he failed to establish eligibility for asylum on the alternative ground that he had a well-founded fear of future persecution. In order to establish a well-founded fear of persecution, an applicant must first demonstrate a subjective fear of persecution through credible testimony that his fear is genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). Second, the applicant must show that “a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question.” Id. In this case, the BIA found that Jiang had failed to make the requisite showing — apparently under the first prong — because, as discussed above, it did not credit his testimony that he was “ever even ... a member of an unregistered Catholic Church.” (AR 000004.) The BIA also noted that Jiang’s parents have remained in China without meeting harm, implying that, even if Jiang were able to demonstrate a subjective fear of returning, this fact would undermine the objective reasonableness of that fear. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005).
In his brief, Jiang argues that there was no basis for the BIA to infer that he would not be harmed if forced to return to China from the fact that his parents have remained in China unharmed because there is no evidence in the record that his parents’ religious activities were as extensive or as public as his. As noted above, however, the BIA’s brief discussion of his parents’ recent experience in China was not the primary basis for its decision to affirm the IJ’s conclusion that Jiang failed to establish a well-founded fear of future persecution. Therefore, even assuming that *338the BIA erred in this respect, we see no reason to disturb the BIA’s determination that Jiang failed to meet his burden of proof on his future persecution claim.
We have considered Jiang’s remaining arguments and conclude that they are without merit. Therefore, we will deny the petition for review.3
. After Jiang testified, he presented the testimony of Father Andrew Tsi, the assistant parish vicar at Jiang's church in New York, to corroborate his testimony that he practices Catholicism in this country.
. Although Jiang refers to his detention by school security officers as an “arrest/' the IJ clarified that the individuals who allegedly detained him were not affiliated with the government.
. The BIA construed a document that Jiang submitted in conjunction with his administrative appeal as a motion to remand, and consolidated it with his appeal pursuant to 8 C.F.R. § 1003.2(c)(4). Jiang does not challenge the Board's construction of this document, or its decision to consolidate it with his administrative appeal, in his appeal to this Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478348/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
We consider in this appeal an order of the United States District Court for the Eastern District of Pennsylvania, granting a motion to enforce a putative settlement agreement. The appellant, California Sun Tanning, USA, Inc. (“California Sun”), asserts several related claims on appeal, but in essence it challenges the District Court’s conclusion that a series of e-mails amongst the parties established an enforceable settlement agreement. Finding no error, we will affirm the District Court’s order.
I.
Because we write solely for the benefit of the parties, we will only briefly recite the essential facts. In 2003, California Sun and its principals, Michael and Tamera Hrycay, entered into a franchise agreement with appellees Electric Beach, Inc. (“Electric Beach”) and its principals, Lee and Staci Carter.1 Pursuant to the *343agreement, Electric Beach would operate a tanning salon at Trolley Square in Wilmington, Delaware, using California Sun’s trade name and trademarks (the “Trolley Square Franchise”). In early 2007, Staci Carter contacted the Hrycays to report that her husband had manipulated the computer system at the franchise for the purpose of systematically underreporting revenues — and thereby commissions — to California Sun. California Sun estimated in its amended complaint that as a result of this manipulation, Lee Carter unlawfully underreported over $250,000 in gross revenues, and consequently caused it losses in excess of $50,000.
California Sun filed this action in November 2007, and amended its complaint in early December 2007. In the amended complaint, it requested injunctive and declaratory relief under the Lanham Act, seeking to preclude Electric Beach from further operating under California Sun’s trade name and using its marks. California Sun also filed a separate arbitration action for damages, as was contemplated in the franchise agreement.2 Although the original complaint invoked subject-matter jurisdiction solely under 28 U.S.C. § 1332, the amended complaint withdrew the parties’ diverse citizenship as a jurisdictional basis, instead invoking federal-question and trademark jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.3
Beginning in late December 2007 and continuing into January 2008, the parties engaged in settlement negotiations, largely via letter and e-mail. As originally proposed by California Sun, the parties would enter into an Asset Purchase Agreement (“APA”), whereby California Sun would purchase the Trolley Square Franchise (and related assets) from Electric Beach for $100,000 less expenses, and the parties would execute mutual releases of all claims against each other. Electric Beach Appendix (“E.B.App.”) 323. By e-mail dated January 4, 2008, counsel for Electric Beach outlined the major points of agreement that had been reached during a discussion with counsel for California Sun. E.B.App. 329. Specifically, the agreed-upon purchase price had been decreased to $85,000, and all parties would execute the mutual general releases. Id. Additionally, the e-mail proposed that the agreement call for “[mjutual cooperation in the turnover” of the Trolley Square Franchise to the Hrycays, which would be completed by January 22, 2008. E.BApp. 329, 336. The e-mail stated that the agreement would be conditioned upon Staci Carter’s acceptance. Id. Counsel for California Sun responded to this e-mail on January 7, 2008, stating under each point of agreement contained in the January 4 e-mail, “AGREED,” although he included a number of minor conditions which were ultimately fulfilled. E.BApp. 333-34. Counsel for Staci Carter also responded that the agreement-in-principle was “[a]ll fine with Staci Carter.” E.B.App. 335. California Sun agreed to circulate a draft APA promptly. E.BApp. 334, 347.
On January 8, 2008, counsel for California Sun informed the District Court by letter that “the parties have agreed in principal [sic] to amicably resolve their *344differences,” and requested thirty days to reduce the agreement to muting and “consummate all aspects of that agreement.” E.B.App. 338. Counsel also confirmed in an e-mail to Electric Beach that the District Court had been informed of the settlement. E.B.App. 341. On January 10, 2008, turnover of the Trolley Square Franchise commenced, as Tamera Hrycay began monitoring operations. E.B.App. 343, 400. California Sun ultimately assumed complete control of the franchise, and it entered into a new lease for the premises on February 13, 2008. E.B.App. 202-05. The $85,000 to be paid to Electric Beach— less outstanding rent, which was disbursed to the landlord — was deposited into an escrow account managed by counsel for California Sun pending execution of the APA. E.BApp. 202-03.
Meanwhile, during the January transition, California Sun alleges that it found the Trolley Square Franchise in disarray. Specifically, it claims that in anticipation of turning over control of the salon, Lee Carter had: (1) failed to satisfy substantial obligations (particularly rent, taxes, and certain utilities); (2) allowed the facilities to fall into disrepair (for instance, California Sun purchased a new air conditioning unit, claiming that the existing unit needed replacement); and (3) absconded with various assets and merchandise that were to be covered by the APA. California Sun demanded that Electric Beach defray the costs of resolving these issues by deducting them from the settlement funds held in escrow. See E.B.App. 348, 350, 358, 371, 431. During the balance of January and early February 2008, the parties negotiated over which liabilities would be satisfied with the escrowed settlement funds, and which would be the responsibilities of California Sun upon the APA’s execution. See, e.g., E.B.App. 375, 386, 400, 431. Electric Beach agreed to “modify” the purported agreement by satisfying all unpaid rent and other obligations owed to the landlord with the settlement funds, as well as any remaining commissions owed to California Sun. Electric Beach also ultimately agreed to deduct certain minor inventory costs. E.B.App. 440-41. But, claiming that the contemplated $85,000 purchase amount was intended to encompass certain other alleged liabilities that California Sun had identified (particularly, the cost to replace the air conditioning system), it refused to agree to further deductions from the settlement funds.
Negotiations continued, but the parties ultimately never executed the APA. On February 18, 2008, Electric Beach filed a motion in the District Court to enforce the settlement agreement as set forth in the series of early January 2008 e-mails discussed above. After a two-day evidentiary hearing, the District Court granted the motion. E.B.App. 1-5. Specifically, it held that the parties had reached an enforceable settlement agreement in early January 2008, and that the various e-mails evidenced the agreement. E.B.App. 199-205. Finding implicit in the agreement a condition that the assets to be purchased come “free of all liens and encumbrances,” E.B.App. 202, the District Court confirmed the deduction of back rent and other unpaid utilities, and also ordered additional sundry offsets for costs related to repairs and inventory. E.B.App. 2-5. Finally, the District Court directed Electric Beach to return certain items that had been removed from the Trolley Square Franchise,4 and to pick up several tanning beds that it independently owned. Id. In all, *345the District Court ordered California Sun to remit $63,983.60. to Electric Beach, and that the funds be held in escrow pending allocation upon the close of the Carters’ divorce proceedings. California Sun appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338, and 15 U.S.C. § 1121. Our jurisdiction arises under 28 U.S.C. § 1291. California Sun presses two jurisdictional arguments that we must address at the outset. First, it asserts that upon assuming control of the Trolley Square Franchise, a live case or controversy over which the District Court could exercise jurisdiction ceased to exist, because at that point it had obtained the only relief sought in its complaint, i.e., cessation of Electric Beach’s use of its marks. Second, California Sun argues that once the District Court had deducted more than $10,000 in rent and utility payments from the $85,000 settlement funds, the amount in controversy no longer supported subject-matter jurisdiction. These claims test the boundaries of good faith.
“Mootness analysis traditionally begins with ‘the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.’ ” Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.1987) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). In short, “ ‘a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ ” Id. at 915 (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). A “live” controversy entails “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id. (quoting Aetna Life Ins. Co. v. Haiworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)).5 However the legal standard is formulated, “the central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Jersey Cent. Power and Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir.1985). In this case, the answer is clearly “no.”
Indulging California Sun’s unsupported claim that a case becomes moot upon recovery of the relief originally sought — notwithstanding the adversary’s counter-argument that such relief was pursuant to a settlement agreement — would undermine the courts’ ability to enforce settlement agreements when one party refuses unilaterally to comply. “It is well settled that a federal court has the inherent power to enforce and to consider challenges to settlements entered into in cases originally filed therein.” Fox v. Consol. Rail Corp., 739 F.2d 929, 932 (3d Cir.1984) (quoting Pearson v. Ecological Science Corp., 522 F.2d 171 (5th Cir.1975); cf. Washington Hosp. v. White, 889 F.2d 1294, 1298-99 (3d Cir.1989)). This maxim knows no greater force than when a putative settlement agreement is reached and partially completed during still-ongoing litigation. On appeal, it is California Sun that seeks entitlement to the settlement funds put into escrow. True, it no longer needs the equitable relief that it originally sought from the District Court. But we find it self-contradictory for California Sun to argue that there is no live dispute on the one *346hand, yet complain that the District Court’s conclusion on the merits was in error and that it should get its money back on the other. The dispute between the parties — over which each party has a manifestly cognizable interest (such as the settlement funds put into escrow while the litigation remained pending) was at all times live before the District Court, and it remains live today.
California Sun’s amount-in-controversy argument fares no better. We need not address its dubious claim that the amount actually in controversy fell below $75,000 once the liabilities were deducted. Upon amending its complaint without referencing or adopting the original, diversity jurisdiction ceased to be a basis for jurisdiction. See King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”) (citation omitted). Because federal-question and federal trademark jurisdiction — which carry no amount-in-controversy requirement, see Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 298 (2d Cir.2002) (citing 15 U.S.C. § 1121(a); 28 U.S.C. §§ 1331, 1338) — properly underlay the District Court’s exercise of subject-matter jurisdiction, the amount actually in controversy here is irrelevant.
III.
California Sun separates its claims on the merits into several sub-claims, which are all part-and-parcel of its overarching argument that the District Court erred by requiring the disbursement of the escrow funds to Electric Beach. Specifically, California Sun argues that: (1) the e-mails did not constitute an enforceable agreement because the parties only intended to be bound by a completed APA; (2) the doctrines of mutual and unilateral mistake preclude enforcement of any agreement; and (3) even if the e-mails are deemed to have established an enforceable agreement in the abstract, the agreement should not be enforced here because Electric Beach’s conduct constituted a material breach and was a product of unclean hands.6
It is by now axiomatic under Pennsylvania law that “the test for enforceability of an agreement is whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced.” Channel Home Ctrs. v. Grossman, 795 F.2d 291, 298-99 (3d Cir.1986) (citing Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 123 A.2d 663, 666 (1956); Linnet v. Hitchcock, 324 Pa.Super. 209, 471 A.2d 537, 540 (1984)). “In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.” Espenshade v. Espenshade, *347729 A.2d 1239, 1243 (Pa.Super.Ct.1999). Additionally, “[wjhere the parties have agreed on the essential terms of a contract, the fact that they intend to formalize their agreement in writing but have not yet done so does not prevent enforcement of such agreement.” Mazzella v. Koken, 559 Pa. 216, 739 A.2d 531, 536 (1999) (citations omitted). “If all of the material terms of a bargain are agreed upon, the settlement agreement will be enforced. If, however, there exist ambiguities and undetermined matters which render a settlement agreement impossible to understand and enforce, such an agreement must be set aside.” Id. (internal citation omitted).
We find no error — clear or otherwise — in the District Court’s conclusion that the early January e-mails evidenced the parties’ mutual assent and intention to be bound by the material terms of the contemplated agreement. Counsel for each party stated explicitly via e-mail that they stipulated to the essential terms of the agreement, including a release of claims by all parties, and $85,000 in exchange for unencumbered ownership of the Trolley Square Franchise. E.B.App. 200-02, 331-37. As the District Court noted, California Sun’s attorney also subsequently transmitted confirmatory e-mails during late January and early February corroborating the existence of an agreement. E.BApp. 202-03, 426, 510; 515. Retiring any lingering doubt on the issue is California Sun’s January 8, 2008 letter to the District Court advising that an agreement-in-principle had been reached, and that the “parties anticipate^] that they w[ould] be able to reduce their agreement to writing and consummate all aspects of that agreement. ...” E.BApp. 338. We find the material terms of the agreement pellueidly clear, and the parties’ intent to be bound thereby equally evident from the record. We also find lacking any evidence that the parties believed that the enforceability of any agreement would be contingent on the execution of a writing memorializing its terms. Cf. Essner v. Shoemaker, 393 Pa. 422, 143 A.2d 364, 366 (1958). Accordingly, we agree with the District Court’s conclusion that the parties entered into an enforceable settlement agreement.
We reject the remaining arguments. California Sun claims that because it “mistakenly” believed that Electric Beach had agreed to transfer all assets of the franchise free of encumbrances, but did not so agree in fact, it is not duty-bound to perform its own end of the bargain. We disagree. Given the District Court’s apt interpretation of the settlement agreement — that an implicit provision required the transfer of unencumbered assets, E.B.App. 202 — the doctrines of unilateral and mutual mistake are inapposite here. The doctrine of mutual mistake — a defense to contract formation— “serves as a defense to the formation of a contract and occurs when the parties to the contract have an erroneous belief as to a basic assumption of the contract at the time of formation which will have a material effect on the agreed exchange as to either party.” Hart v. Arnold, 884 A.2d 316, 333-34 (Pa.Super.Ct.2005) (internal citations and quotations omitted); see also Restatement (Second) of Contracts, § 152 (1981). The doctrine of unilateral mistake permits a mistaken party to void a contract if the effect of the mistake would render enforcement unconscionable, or if the non-mistaken party had reason to know of or caused the mistake. See Lanci v. Metro. Ins. Co., 388 Pa.Super. 1, 564 A.2d 972, 974-75 (1989) (quoting Restatement (Second) of Contracts, § 153). California Sun’s current protestations notwithstanding, the District Court found that the settlement agreement implicitly contemplated that California Sun was to receive *348the franchise assets free and clear of all encumbrances, and it deducted the corresponding amounts accordingly. As such, there is no mistake — mutual or unilateral — of which to complain; to the contrary, California Sun received everything for which it bargained.7
For similar reasons, we reject California Sun’s claim that Electric Beach is not entitled to specific performance because it: (1) materially breached the settlement agreement; and (2) seeks equity with unclean hands. It is California Sun that seeks to retain the benefit of its bargain with Electric Beach (ownership of the Trolley Square Franchise) without satisfying its corresponding obligation (paying $85,000 minus court-ordered offsets). This it may not do:
Under basic contract principles, when one party to a contract feels that the other contracting party has breached its agreement, the non-breaching party may either stop performance and assume the contract is avoided, or continue its performance and sue for damages. Under no circumstances may the non-breaching party stop performance and continue to take advantage of the contract’s benefits.
Pappan Enters. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 806 (3d Cir.1998) (citation omitted). We conclude that Electric Beach has not breached the agreement, and that equity tilts in its favor.8
IV.
The District Court’s factual findings are manifestly supported by the record, and its legal analyses sound. For the foregoing reasons, we will affirm.
. Unless specifically stated otherwise, all references to Electric Beach include Lee Carter, and all references to California Sun include the Hrycays. At the time this action was *343filed, Lee and Staci Carter were separated and in the midst of divorce proceedings. Separate counsel represented Staci Carter in this matter, and she opposed the motion to enforce the settlement now under review (although she did not appeal the District Court's order). We therefore reference her separately-
. When a settlement appeared imminent, the arbitration action was withdrawn.
. The amended complaint also invoked supplemental jurisdiction under 28 U.S.C. § 1367 for the state-law claims alleged.
. Relevant here, these items included a “tootsie” tanning machine, a palm tree, and 600 pairs of sunglasses. E.B.App. 3.
. Prudential considerations of mootness do not affect our analysis here, and we do not discuss them. See generally Kelly, 815 F.2d at 915.
. Settlement agreements are nothing more than contracts, and therefore basic contracts principles apply. This Court's review of the existence and legal consequences of a settlement agreement is plenary. See Flemming v. Air Sunshine, Inc., 311 F.3d 282, 289 (3d Cir.2002). Where, as here, there has been an evidentiary hearing and explicit findings of fact have been made — including a finding that the parties agreed to certain settlement terms and intended to be bound thereby — we review those findings for clear error. See In re Cendant Corp.Prides Litig., 233 F.3d 188, 193 (3d Cir.2000); Tieman v. Devoe, 923 F.2d 1024, 1031 n. 5 (3d Cir.1991). Although the underlying case concerned only federal claims, we see no good reason why state law should not apply in these circumstances. See Edwards v. Born, Inc., 792 F.2d 387, 389 (3d Cir.1986); Tieman, 923 F.2d at 1032-33 & n. 6. We accordingly apply Pennsylvania contract law, as the parties’ franchise agreement stipulated that the Commonwealth's law would govern their relationship.
. We note that California Sun does not challenge the correctness of the itemized offsets for back rent, utilities, repairs, and inventory, or the District Court's refusal to grant specific deductions. See generally E.B.App. 2-4. In any event, having reviewed the record, we find the District Court’s allocation of funds amply supported by the record. Finally, we reject California Sun's claim that rescission or avoidance of the agreement is appropriate based on Lee Carter’s removal of certain items from the salon (e.g., the “tootsie” tanning machine, palm tree, and 600 pairs of sunglasses). The District Court specifically found that the agreement called for the return of these items, and included this term in its order. E.B.App. 3. California Sun therefore received the benefit of its bargain.
. Whether there was factual or legal merit to California Sun's underlying claims is not before us; at issue here is the settlement agreement. Having steadfastly maintained its position that it may retain full title to the Trolley Square Franchise but is not obligated to dispense any of the settlement funds in return, California Sun's appeal to equity is sorely misplaced. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478350/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Essex Insurance Company (“Essex”) appeals from a declaratory judgment entered against it by the United States District Court for the Middle District of Pennsylvania after a bench trial, obligating it to defend and indemnify Greenway Center, Inc. (“GCI”) in a wrongful death action brought against GCI in the Monroe County Court of Common Pleas by Annette Maione. The basis for the District Court’s judgment was its conclusion that a defacto merger occurred between GCI and Winco Acquisitions, Inc. d/b/a Greenway Center (“Winco”). Winco is the former operator of the Greenway Center (the “Center”), a drug and alcohol treatment facility in Hen-ryville, Pennsylvania, and the insured on a 1997 policy issued by Essex.1 Because we conclude that GCI is not a successor to Winco under Pennsylvania law, we will vacate the District Court’s judgment and remand for further proceedings consistent with this opinion.
I. Background
On June 24, 1997, Mark Willet passed away the day after having checked into the Center for treatment of his drug and alcohol addictions. At the time of Willet’s death, Winco operated the Center. However, as discussed in more detail below, GCI, which was incorporated in 1998, eventually took over the Center’s operations. In 1999, Maione brought a wrongful death action against GCI in connection with her husband’s death.
*350GCI filed the instant lawsuit against Essex and Maione, individually and in her capacity as the administrator of her husband’s estate, in the Monroe County Court of Common Pleas in December of 2008, seeking a declaratory judgment that Essex is obligated to indemnify and defend GCI in Maione’s wrongful death action. The matter was removed to the District Court in 2004. After a bench trial on April 19, 2005, the Court found in favor of GCI, holding that the state court in the underlying negligence action had already found GCI to be a successor of Winco and that issue preclusion prevented Essex from challenging that finding. We reversed on appeal, holding that issue preclusion was inapplicable, and remanded for a determination as to whether GCI was a successor in interest to Winco. Greenway Ctr. Inc. v. Essex Ins. Co., 475 F.3d 139 (3d Cir.2007).
On remand, the District Court held a supplemental bench trial and, in an August 6, 2008 memorandum opinion, 2008 WL 3165874, the following facts emerged. Winco operated the Center as an alcohol and drug rehabilitation center pursuant to a license issued by the Pennsylvania Department of Health (“DOH”). After Wil-let’s death, the DOH revoked Winco’s license, and the Center was shut down in November 1997. Winco had previously filed for bankruptcy in June of 1997 and had developed a reorganization plan pursuant to which all of its stock was to be vested in or reissued to GCI. Ultimately, however, no stock was ever transferred from Winco to GCI. Furthermore, GCI did not purchase any of Winco’s assets.
Heath Management Associates (“HMA”), a management company, was authorized by the Bankruptcy Court to operate the Center during the transition period. HMA began running the Center in February 1998 pursuant to a management agreement with Winco, and reopened the Center in March 1998 “with the aim of eventually turning the business over to GCI.” (App. at 16.) Financing for the Center’s operation was provided by Via-care. HMA, Yiacare, and GCI all had the same individuals serving on their boards of directors. However, none of the shareholders, officers, or directors of Winco were shareholders, officers, or directors of GCI.2
HMA became the holder of Winco’s license, though the license remained in Win-co’s name. Since most of Winco’s employees left the Center after it closed, HMA hired new employees upon reopening with the exception of two individuals from the previous administration. While running the Center, HMA did not take any direction from any of Winco’s stockholders or owners. In fact, it was prohibited from doing so by the DOH, which only permitted the Center to reopen on the condition that Winco’s management be prohibited from participating in the Center’s operations.3 Greenway Ctr. Inc., 475 F.3d at 143 n. 3. In other words, Winco’s management was forbidden to, and in fact never again did, play any role in running the Center after it was shut down.
The boards of HMA, Viacare, and GCI met between 1998 and 2000 to discuss the Center’s operations. No one from Winco was present at those meetings, and thus GCI’s executive director made decisions for Winco. Winco was the licensee and the named insured on relevant insurance policies during this time period, and it *351maintained bank accounts to pay employees, even though it played no role in running the Center. Additionally, Winco remained a party to contracts with various counties that referred patients to the Center for court-supervised treatment so that referrals pursuant to those contracts could continue uninterrupted. In short, after HMA took over operations, Winco essentially existed only as a shell, its shareholders had abandoned the corporation and other entities ran the business, but Winco was not dissolved because of the pendency of Willet’s state court suit and “because it was convenient to allow Winco to remain a party to third party contracts that were serviced by Greenway Center.” (App. at 17.) By the time Maione sued Winco— after suing GCI and presumably realizing that she had mistakenly sued the wrong-defendant — the statute of limitations had run and her lawsuit against Winco was dismissed as time-barred. Essex defended Winco in that action. The persistent efforts to find GCI to be Winco’s successor appear to stem from Maione’s initial mistake in suing the improper defendant.
On June 28, 2000, GCI became the holder of the license to run the Center. Regardless of who was operating the facility, the Center was always known as the Greenway Center; its business did not change; it was always located on the same premises, and its letterhead and phone number did not change.
The District Court, applying Pennsylvania law, held that a de facto merger had occurred between Winco and GCI, such that GCI could take advantage of Essex’s insurance policy. In making that determination, the Court considered four factors set forth under Pennsylvania law for assessing a claim of de facto merger: “(1) continuity of ownership; (2) cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable; (3) assumption by the successor of liabilities ordinarily necessary for uninterrupted continuation of the business; and (4) continuity of the management, personnel, physical location, and the general business operation.” (App. at 15 (quoting Continental Ins. Co. v. Schneider, Inc., 810 A.2d 127, 135 (Pa.Super.Ct.2002).))
The Court held that the first factor, continuity of ownership, was met because HMA “had in effect been running Winco to the extent that it needed running” and the shareholders of HMA are identical to those of GCI. (App. at 19.) The Court found that the second factor, earliest practicable dissolution, weighed in favor of de facto merger because, even though Winco was never officially dissolved, “it has no shareholders, no business and does nothing.” (App. at 19.) The Court found that the third factor, assumption of liabilities necessary for continuation of business, weighed in favor of de facto merger because the Center’s contracts remained in Winco’s name but were carried out by HMA and GCI. Finally, the Court found that the fourth factor, continuity of management and general business operation, weighed in favor of merger because there was a continuity “in the physical location and general business operations of the Greenway Center” and a continuation of personnel to a certain extent. (App. at 20.) The Court accordingly entered declaratory judgment in favor of GCI, obligating Essex to defend and indemnify GCI in Maione’s wrongful death action based on its finding that a de facto merger had occurred.4 Essex timely appealed.
*352II. Discussion5
“We review a district court’s findings of fact following a bench trial under the clearly erroneous standard.” Am. Soc’y for Testing & Materials v. Corrpro Cos., Inc., 478 F.3d 557, 566 (3d Cir.2007). In contrast, we exercise plenary review over a district court’s legal conclusions. Id. Since this action is governed by Pennsylvania law, we must “apply existing state law as interpreted by the state’s highest court in an effort to predict how that court would decide the precise legal issues before us.” See Koppers Co. v. Aetna Cas. and Sur. Co., 98 F.3d 1440, 1445 (3d Cir.1996). If the highest state court has not spoken on the pertinent issue, we may look for guidance to, among other things, decisions of state intermediate appellate courts and decisions of federal courts interpreting that state’s law. Id.
The general rule in Pennsylvania is that, when one company sells all or substantially all of its assets to another company, the purchasing company is not liable as a successor. Continental Ins. Co. v. Schneider, Inc., 582 Pa. 591, 873 A.2d 1286, 1291 (2005). One exception to that rule occurs when the purchasing company is “merely a continuation of the selling corporation,” id. at 1291, also known as a de facto merger, Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 468 (3d Cir.2006) (noting that courts treat de facto merger and continuation identically). A de facto merger or mere continuation occurs when a new eor-poration is formed to acquire the assets of or take over a second corporation, which then ceases to exist. See Schneider, 810 A.2d at 134-35.
Again, as the District Court recognized, Pennsylvania law requires courts to consider the following four factors in determining whether a de facto merger has occurred between two entities, “(1) continuity of ownership; (2) cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable; (3) assumption by the successor of liabilities ordinarily necessary for uninterrupted continuation of the business; and (4) continuity of the management, personnel, physical location, and the general business operation.” Id. at 135; see also Berg Chilling, 435 F.3d at 468-69. In Berg, we explained that the first factor, continuity of ownership, is the most important factor in the analysis, and that the absence of any continuity of ownership therefore creates a “strong presumption against imposing successor liability.” 435 F.3d at 469. Recently, the Pennsylvania Superior Court confirmed that continuity of ownership is “a key element that must exist in order to apply the de facto merger doctrine, since in the absence of a transfer of stock for assets the consequence of the transaction is not the functional equivalent of a merger.” Fizzano Bros. Concrete Prods., Inc. v. XLN, Inc., 973 A.2d 1016, 1020 (Pa.Super.Ct.2009).6 “The objective *353of [the continuity of ownership] requirement is usually to identify situations in which shareholders of a seller corporation unfairly attempt to impose their costs or misdeeds on third parties by retaining assets that have been artificially cleansed of liability.” Berg, 435 F.3d at 469.
The District Court erred in concluding that a de facto merger occurred between GCI and Winco because there is no evidence of continuity of ownership. GCI never purchased, any of Winco’s assets and no stock was ever transferred from Win-co’s shareholders to GCI’s shareholders. Furthermore, Winco’s owners never participated in running the Center after it was closed in November 1997 and, importantly, were prohibited from doing so as a condition of the reopening of the Center under HMA’s management. The record does not show that the ownership of Winco passed to HMA in any fashion.
The District Court found a continuity of ownership between HMA and Winco “to a certain extent” because HMA ran “Winco to the extent that it needed running.” (App. at 19.) Presumably, the District Court was referring to the fact that HMA ran the Center after it reopened and carried out contracts to which Winco was still a party. That does not mean, however, that the officers and directors of HMA somehow became owners of Winco. And, to the extent that overlapping management is meaningful, none of Winco’s management played any role at all in the Center’s operation once it reopened. Accordingly, there was no continuity of ownership between Winco and HMA, and the fact that GCI and HMA share the same management is irrelevant.7
GCI asserts that the “gradual metamorphoses [where] the operations of [the Center] went from Winco to HMA to GCI over a course of time” establishes continuity of ownership. (Appellee’s Ans. Br. at 21.) Although it is true that HMA, and GCI thereafter, assumed operation of the Center, there was no continuity of ownership between Winco and HMA (and thus, GCI) — an important distinction. In the absence of a stock transfer, asset purchase, or any other evidence establishing that the owners of Winco became the owners of GCI, there is no basis for finding a continuity of ownership.
Although our conclusion is sufficient to preclude application of the de facto merger doctrine, see Fizzano, 973 A.2d at 1020 (concluding that “since there was no continuity of ownership, the de facto merger doctrine does not apply”), we also note that the remaining factors — earliest practicable dissolution of the predecessor, assumption by the successor of the necessary liabilities, and the continuity of the management and general operations — do not support a finding of de facto merger. First, regardless of whether Winco conducted any business, it was never dissolved and was capable of responding to the action Maione filed against it. Second, although GCI serviced several of Winco’s contracts, GCI did not purchase Winco’s service agreements or assume Winco’s liabilities. Finally, although the general business operations and physical location of the Center did not change under GCI’s ownership, the management was new and the personnel was, for the *354most part, different from personnel under Winco’s management. Taking the four factors together, we cannot conclude that GCI is a continuation of Winco and, thus, the District Court’s conclusion to the contrary was erroneous.8 Since GCI is not Winco’s successor, GCI cannot take advantage of Essex’s insurance policy on that basis.
III. Conclusion
No de facto merger or continuation occurred between GCI and Winco that would permit GCI to take advantage of Essex’s insurance policy as Winco’s successor. We must therefore vacate the District Court’s declaratory judgment and remand for further proceedings consistent with this opinion.
. The policy was issued on February 3, 1997 and had a term of one year.
. HMA, GCI, and Winco did, however, have the same attorney.
. Although the District Court did not expressly acknowledge this fact, it is apparent from the record and our prior opinion in this matter.
. The District Court rejected GCI’s other theories of recovery. Those issues are not before us on appeal.
. This case was removed to District Court pursuant to 28 U.S.C. § 1441. The District Court's jurisdiction was based upon diversity because the parties are citizens of different states — GCI is a citizen of Pennsylvania while Essex is a citizen of Delaware and Virginia and Maione and Willet are both citizens of New Jersey — and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. We have jurisdiction over this appeal based on 28 U.S.C. § 1291.
. In its supplemental brief, GCI claims that Fizzano is somehow irrelevant to our analysis, because Fizzano concerned an asset purchase while no asset purchase occurred in this case. Fizzano is the Pennsylvania Superior Court's latest pronouncement on the de facto merger doctrine, and its legal principles are applicable here even if there are factual differences in the cases. Indeed, GCI itself cites cases in its answering brief as applicable law on the issue which themselves concern asset purchases. Nor does Fizzano conflict with the *353Pennsylvania Superior Court's earlier decision in Schneider, 810 A.2d 127 (Pa.Super.Ct.2002). Instead, Fizzano clarified Schneider, explaining that Schneider emphasized “the importance of continuity of ownership in the de facto merger analysis.” Fizzano, 973 A.2d at 1021.
. GCI's reliance on the bankruptcy plan, which sought to transfer Winco’s stock to GCI, is misplaced, not least because there was no such transfer.
. At the end of its analysis, the District Court focused on the fact that “GCI maintained the insurance in Winco's name even when Winco was clearly doing nothing to operate the business.” Although it may have appeared equitable to the Court to permit GCI to recover insurance proceeds from Essex when GCI was running the Center, Willet's death took place in June of 1997, when Winco was running the Center. Furthermore, the insurance policy in question was issued to Winco for a term of one year, beginning on February 3, 1997. Accordingly, that particular policy would have expired before HMA — and certainly before GCI — began running the Center. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478352/ | OPINION OF THE COURT
CONNER, District Judge.
Yusuf Howard was convicted of one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), one count of carrying a firearm during or in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). After this Court vacated the sentence imposed by the District Court and remanded for Booker re-sentencing,1 he was re-sentenced to 240 months. Howard now challenges that sentence. We will affirm.
I.
Because we write primarily for the benefit of the parties, we recount the facts and procedural history only as they are relevant to the disposition of the case. After a traffic stop on April 26, 2003, police found in Howard’s pants a .38 caliber revolver and a pill bottle containing multiple packets of cocaine base with an aggregate weight of 3.618 grams. He was indicted and was subsequently tried and convicted for the above-described offenses. On September 9, 2004, Howard was sentenced to terms of 240 months imprisonment on the drug offense (Count I) and 262 months imprisonment for the felon-in-possession offense (Count III), which terms were to run concurrently. The District Court also imposed a consecutive sentence of 60 months on Count II, the offense of carrying a firearm in connection with a drug trafficking offense. Thus, the District Court imposed a total term of imprisonment of 322 months. We subsequently vacated his sentence and remanded the case. See United States v. Howard 248 Fed.Appx. 437 (3d Cir.2007). At the re-sentencing hearing, the District Court granted a downward variance based upon: (1) the less egregious circumstances of past convictions which qualified Howard as an armed career criminal, and (2) its finding that a sentence within the guidelines range — which called for 262 to 327 months’ imprisonment — would be greater than necessary. The District Court sentenced Howard to a total term of imprisonment of 240 months,2 a six-year term of supervised release, a fine of $500, and a special assessment of $300. Howard now appeals.
*356We have jurisdiction over Howard’s appeal pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. We review the reasonableness of the District Court’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the District Court’s findings of fact for clear error, and we exercise plenary review over its interpretations of law. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
II.
Howard argues that the District Court erred insofar as it failed to take into consideration further downward departures which were available and applied the sentencing guidelines too rigidly. He also contends that the District Court failed to justify its sentence in light of the factors provided in 18 U.S.C. § 3553, and the mandate to “impose a sentence sufficient, but not greater than necessary, to comply with” sentencing purposes.
Howard’s contentions are wholly without merit in that the District Court imposed the minimum sentence permitted under the applicable federal statutes. His suggestion that the District Court had the authority to impose a lesser sentence is incorrect. To the contrary, federal law mandated that the District Court impose, at an absolute minimum, a sentence of 240 months. See 18 U.S.C. § 924(c), (e). The District Court was unquestionably required to follow that mandate. Although Booker abolished the mandatory nature of the Sentencing Guidelines,3 it had no effect on the mandatory application of statutory minimum sentences. See, e.g., United States v. Doe, 564 F.3d 305, 314 (3d Cir.2009) (“The Guidelines are no longer mandatory, but that does not render optional statutory directives.” (quoting United States v. Wise, 515 F.3d 207, 220 (3d Cir.2008)) (internal quotation marks omitted)), United States v. Williams, 464 F.3d 443, 449 (3d Cir.2006) (upholding the application of a statutory mandatory minimum sentence for a conviction of possession of a firearm, and declining to remand that conviction for Booker re-sentencing). Our enforcement of statutory minimum sentences as mandatory directives is entirely consistent with the decision of the Supreme Court in Kimbrough v. United States, 552 U.S. 85, 104-05, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (holding that, although sentencing courts are not required “to adhere to the 100-to-l ratio” for quantities of cocaine base as a general rule, they must do so in cases that implicate “the statutory mandatory minimum sentences”). Our decision is also supported by other circuits that have addressed this issue. See United States v. Bermudez, 407 F.3d 536, 545 (1st Cir.2005); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir.2005); United States v. Groce, 398 F.3d 679, 682 n. 2 (4th Cir.2005); United States v. Farias, 481 F.3d 289, 291-92 (5th Cir.2007); United States v. Franklin, 499 F.3d 578, 584 (6th Cir.2007); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); United States v. Freemont, 513 F.3d 884, 890 (8th Cir.2008); United States v. Hernandez-Castro, 473 F.3d 1004, 1007 (9th Cir.2007); United States v. Harris, 447 F.3d 1300, 1307 (10th Cir.2006); United States v. Shelton, 400 F.3d 1325, 1333 n. 10 (11th Cir.2005). In sum, the District Court’s application of the statutory minimum sentence was entirely proper.
*357in.
For the reasons stated above, we will affirm the sentence imposed by the District Court.
. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that the U.S. Sentencing Guidelines Manual should be applied as advisory, not mandatory, guidance).
. The District Court sentenced Howard to 70 months imprisonment for Count I, and 180 months for Count III, to run concurrently, followed by a consecutive term of 60 months for Count II. The term of 180 months on Count III is the statutory minimum, because Howard's previous convictions triggered the 15-year minimum term under the Armed Career Criminal Act. See 18 U.S.C. § 924(e). The Act also mandates a five-year minimum term of imprisonment for Count II, which must run consecutive to any other term of imprisonment. See 18 U.S.C. § 924(c).
. The Court notes that the application of the Sentencing Guidelines remains mandatory in certain contexts not relevant to the instant case. See United States v. Doe, 564 F.3d 305 (3d Cir.2009) (holding that the Sentencing Guidelines are binding in sentence modification proceedings under 18 U.S.C. § 3582(c)(2)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478354/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
This case is before us on appeal following the District Court’s grant of summary *358judgment in favor of Appellees Carpenter, Bennett & Morrissey (“CBM”) and denial of Appellants Mark A. Speeney, David M. Oestreicher and Adriana Greci Green’s motion to disqualify CBM from representing Rutgers University. The District Court held an evidentiary hearing to decide Appellants’ motion for disqualification and made certain findings of fact. The District Court’s subsequent grant of summary judgment was based on its application of those factual findings to Appellants’ legal malpractice and breach of a fiduciary duty/eonstructive trust claims. The District Court held that the law of the case doctrine prevented its factual findings from being relitigated. Because Appellants did not have a full and fair opportunity to litigate their malpractice and breach of fiduciary duty claims, and because the District Court did not properly consider the new evidence Appellants presented at the summary judgment stage, we find that the law of the case doctrine does not apply. We will therefore vacate the District Court’s order and remand for further proceedings.
BACKGROUND
Appellants are alleged victims of sexual harassment by a former Rutgers professor, William Powers, who has since been de-tenured. CBM was initially retained to represent Rutgers in connection with Powers’ de-tenure hearing and to defend Rutgers against a federal lawsuit brought by Powers. Appellants believed they had an attorney-client relationship with CBM and that CBM would be representing their interests in the tenure hearings. Appellants’ Br. 6. In June 1998, Rutgers and Powers settled the internal dismissal proceedings and Powers’ claim against Rutgers, but Appellants were not consulted regarding settlement negotiations.
In 1999, Appellants filed suit against Rutgers, Powers, CBM, and other defendants in the Superior Court of New Jersey. This action was removed to the District Court for the District of New Jersey and assigned to Judge John W. Bissell. Appellants were displeased with Rutgers’ resolution of the Powers matter without consulting them and alleged that CBM and Appellants had an attorney-client relationship and that CBM breached its duty to them as clients, or, in the alternative, that CBM breached a fiduciary duty to Appellants as well as their ethical obligations by not complying with N.J. Rules of Professional Conduct.
On September 29, 2003, Judge Bissell granted CBM’s first motion for summary judgment on Appellants’ claims of breach of the Rules of Professional Conduct (not appealed) and legal malpractice, but denied this motion as to their constructive trust/breach of fiduciary duty claim. Judge Bissell also bifurcated Appellants’ claims against CBM from their claims against Rutgers and stayed all discovery against CBM until Appellants’ claims against Rutgers and Powers were resolved because of the difficulty in determining damages before the underlying action was resolved. On July 15, 2004, after the parties filed cross-motions for reconsideration, Judge Bissell reinstated Appellants’ malpractice claim due to genuine issues of material facts. In January 2005, Appellants brought a motion to disqualify CBM as counsel for Rutgers based on a conflict of interest between CBM and Appellants. Appellants maintained that they had an attorney-client relationship with CBM. On March 8, 2005, Judge Bissell held that he could not rule on Appellants’ motion to disqualify CBM before conducting an evi-dentiary hearing to determine if there was an actual or implied attorney-client relationship between CBM and Appellants.
*359The case was then transferred to Judge Dennis M. Cavanaugh who held an eviden-tiary hearing to determine if CBM and Appellants had an express or implied attorney-client relationship on January 23 through January 26, 2006. On January 27, 2006, Judge Cavanaugh denied Appellants’ motion to disqualify finding that there was no actual or implied attorney-client relationship between CBM and Appellants and that Appellants were merely witnesses in the dismissal proceedings against Powers. CBM then moved for summary judgment on Appellants’ constructive trust/breaeh of fiduciary duty and malpractice claims. On November 9, 2006, Judge Cavanaugh granted CBM’s summary judgment motion based on his factual findings from the evi-dentiary hearings regarding the relationship between CBM and Appellants. On February 9, 2007, Judge Cavanaugh denied Appellants’ motion for reconsideration of his summary judgment decision and their motion for certification as a final judgment or for interlocutory appeal.
Appellants subsequently settled their claims with all other defendants. They appeal the District Court’s grant of summary judgment as to their attorney malpractice and breach of a constructive trust/fiduciary duty claims as well as the District Court’s denial of their motion to disqualify CBM from serving as Rutgers’ counsel.
DISCUSSION1
The Law of the Case
The District Court held an evidentiary hearing on Appellants’ motion to disqualify CBM from representing Rutgers to determine if Appellants’ reasonable reliance on CBM created an implied attorney-client relationship. After finding that the Appellants did not reasonably believe that CBM was acting as then* attorney and therefore that no express or implied attorney-client relationship existed, the District Court denied the motion to disqualify.2
In its summary judgment ruling, the District Court held that its previous determination that Appellants did not reasonably rely on CBM as their attorney was the law of the case. The law of the case doctrine states that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); see also Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster-Wheeler Energy Corp., 26 F.3d 375, 396-97 (3d Cir.1994) (factual decisions explicitly reached or reached by necessary inference become the law of the case if not contested on appeal).
The law of the case doctrine “limits relit-igation of an issue once it has been decided” in an earlier stage of the same litigation. In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir.2002). We apply the doctrine with the intent that it will promote finality, consistency, and judicial economy. In re City of Philadelphia Litig., 158 F.3d 711, 717-18 (3d Cir.1998).
Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir.2003).
The law of the case doctrine is not a restriction on the court’s power, but is a discretionary doctrine. City of Phila., 158 F.3d at 718. Because the District Court previously found that there was no reasonable reliance and reasonable reliance is an *360element of Appellants’ legal malpractice and fiduciary duty/breach of constructive trust claims,3 the Court held that under the law of the case doctrine these claims could not survive summary judgment. A jury verdict cannot stand if there is no possible way for it to be reconciled with the law of the case.4 See Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 30-31 (3d Cir.1994).
A. Full and Fair Opportunity to Litigate
The law of the ease doctrine only precludes relitigation of issues that the parties had a full and fair opportunity to litigate. Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 219 (2d Cir.2002); see also Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 203, n. 13 (3d Cir.2004). Appellants contend that they did not have a full and fair opportunity to litigate the merits of their legal malpractice and breach of a fiduciary duty claims during the evidentiary hearing on the motion for disqualification.
At the beginning of the evidentiary hearing on the motion to disqualify, Judge Cavanaugh explicitly told counsel that the hearing was not a trial of the merits of Appellants’ claims and was limited to the issue of disqualification:
[Tjhis is an evidentiary hearing just on this issue of disqualification ... We’re going to have the hearing on the disqualification only.... So to the extent that people think that this is going to be a trial of the case, it is not.... This is going to be a limited hearing on the issue as Judge Bissell suggested or directed.
Transcript at 25.
Furthermore, Appellants’ lawyer stated at the end of the hearing that if he had been trying to prove his malpractice case there would have been other discovery he would have pursued and that he had not “endeavored to meet that burden of proof.” Transcript at 757-58. Appellants’ lawyer stated:
*361Were I attempting to prove, let’s say, my malpractice case, there would have been other discovery I would have pursued and things like that; but at this time, I just want to make it clear that I have not had all the discovery that I would expect to have by the time the malpractice case is tried.
Id.
Judge Cavanaugh replied “No. Well, correctly: you weren’t supposed to. So I wasn’t expecting you to do that.” Id.
It is clear that Appellants did not have a full and fair opportunity to litigate the merits of their malpractice and breach of fiduciary duty claims, including the reasonable reliance element, during the eviden-tiary hearing on the motion to disqualify. Therefore, these claims are not barred by the law of the case doctrine.
B. New Evidence
Additionally, there is an exception to the law of the case doctrine when new evidence is presented. We explore it here to provide guidance. We have said:
Reconsideration of a previously decided issue may, however, be appropriate in certain circumstances, including when the record contains new evidence. [City of Philadelphia Litig., 158 F.3d] at 718; Bridge v. United States Parole Comm’n, 981 F.2d 97, 103 (3d Cir.1992). This exception to the law of the case doctrine makes sense because when the record contains new evidence, “the question has not really been decided earlier and is posed for the first time.” Bridge, 981 F.2d at 103. But this is so only if the new evidence differs materially from the evidence of record when the issue was first decided and if it provides less support for that decision. City of Philadelphia Litig., 158 F.3d at 720. Accordingly, if the evidence at the two stages of litigation is “substantially similar,” or if the evidence at the latter stage provides more support for the decision made earlier, the law of the case doctrine -will apply. Id.
Hamilton, 322 F.3d at 787.
Appellants claim that they were unable to present certain facts at the evidentiary hearing because the District Court had stayed all discovery relating to their claims against CBM until their claims against Rutgers were complete. App. 436-41. Appellants submitted a Rule 56(f) Certification 5 to the District Court detailing their inability to present certain facts to oppose CBM’s summary judgment motion.6 App. 434-575. The District Court did not mention the Rule 56(f) certification at all in ruling on summary judgment.
Appellants argue that there was new evidence that they were unable to present at the disqualification hearing,7 which cre*362ates an exception to the law of the case doctrine. In its summary judgment opinion, the District Court determined that Appellants’ new evidence did not compel reconsideration of the Court’s order denying disqualification, but did not explicitly address what the new evidence was or why it was not persuasive. The District Court did not consider whether this new evidence compelled an exception to the law of the case doctrine and instead considered it only in the context of Appellants’ motion to reconsider the disqualification decision:
While Plaintiffs point to “new” evidence that requires reconsideration of the disqualification hearing, it is not apparent that this evidence was not previously unavailable or that this “new” evidence compels reconsideration of this Court’s January 30, 2006 Order. Specifically, Plaintiffs point to documents that, they claim, reveal that CBM considered themselves to be representing Plaintiffs. Plaintiffs argue that these documents thereby show that Plaintiffs were reasonable in their belief that CBM represented their interests. This argument is not persuasive and disregards the fact that this Court has already determined after an exhaustive hearing that any belief held by Plaintiffs that the CBM Defendants represented them was unreasonable.
App. 96.
The District Court considered the new evidence presented by Appellants only in the context of a motion for reconsideration of the disqualification motion, and not in the context of its determination as to whether the law of the case doctrine should apply. The District Court should have determined whether the new evidence was “substantially similar” to the evidence presented at the evidentiary hearing and, accordingly, whether the law of the case doctrine should apply. If the new evidence was materially different from that presented at the disqualification hearing, the law of the case doctrine would not apply and there would be a genuine issue of material fact as to whether CBM and Appellants had an implied attorney-client relationship.
In light of the foregoing, we will VACATE the order of the District Court and REMAND for further proceedings.
. The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291.
. Appellants also appeal this ruling but in light of the fact that Appellants ’ have since settled their case against Rutgers, the issue of whether CBM should have been disqualified from representing Rutgers is now moot.
. "[A] member of the bar owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” Albright v. Burns, 206 N.J.Super. 625, 503 A.2d 386, 389 (1986).
. Appellants rely largely on Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990), a case in which the Court held that — although "an equitable determination can have collateral-es-toppel effect in a subsequent legal action and that this estoppel does not violate the Seventh Amendment,” id. at 550-51, 110 S.Ct. 1331 (emphasis in original) — the Seventh Amendment precludes according collateral estoppel effect to a district court's determination of issues common to equitable and legal claims where equitable and legal claims are brought in the same action and the district court improperly dismissed the legal claims. Id. at 555, 110 S.Ct. 1331 ("We decline to extend Parklane Hosiery Co., supra, and to accord collateral-estoppel effect to a district court’s determinations of issues common to equitable and legal claims where the court resolved the equitable claims first solely because it erroneously dismissed the legal claims. To hold otherwise would seriously undermine a plaintiff’s right to a jury trial under the Seventh Amendment.”). Here, however, the District Court did not mistakenly take up equitable claims that would cut off legal claims that should go to a jury. Instead, the District Court took up, at the Appellants’ own insistence, the Appellants’ own motion to disqualify CBM. The Appellants filed the motion presumably knowing that the question of whether an attorney-client relationship existed between CBM and the Appellants was central to both the disqualification motion and to their malpractice claim. Hence, since the Appellants themselves made the pre-trial motion to disqualify CBM as Rutgers' counsel, knowing that this would require a judicial determination of whether there was an express or implied attorney-client relationship between CBM and Appellants, the present case is clearly distinguishable from Lytle.
. "Rule 56(f) of the Federal Rules of Civil Procedure gives the district court discretion to defer ruling on a summary judgment motion when a party opposing summary judgment files an affidavit indicating that it needs more discovery." Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir.1989). Rule 56(0 requires a party to explain its need for discovery, what material facts it hopes to discover, and why it has been unable to discover the information. Id. at 1393-94.
. In their Rule 56(0 certification Appellants claim that the discovery stay prevented them from subpoenaing Powers’ attorney, taking longer depositions of witnesses who testified at the disqualification hearing (only limited four-hour depositions were allowed), and looking over the privilege log from Rutgers to determine which additional documents were necessary and discoverable. App. 436-37.
.According to Appellants, new evidence presented at the summary judgment stage that was not presented during the hearing on the motion to disqualify included settlement correspondence between CBM and Powers as well as deposition testimony. (Reply Br. 6-7, citing Appellants’ Br. 14-20). In particular, Appellants contend that the settlement corre*362spondence between CBM and Powers’ attorney demonstrated that CBM made settlement demands that would benefit Appellants and might have been harmful to Rutgers’ interests. Appellants also contend that a CBM attorney wrote to Powers' attorney that she was authorized by "my clients” to negotiate a settlement “of the disciplinary proceedings, commenced by the filing of written complaint, dated May 23, 1994, by Adriana Greci Green.” App. 449-461, 462-63, 494-509. Appellants argue that CBM could not possible settle Green’s complaint unless they represented Green. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478356/ | OPINION
SLOVITER, Circuit Judge.
James Leath, convicted by a jury in 1994 of conspiracy to distribute more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 846, was sentenced to life imprisonment. In 2008, Leath filed a motion to modify his sentence based on Sentencing Guidelines Amendment 706 (effective November 1, 2007), which retroactively lowered base offense levels for certain crack cocaine offenses. Leath appeals the District Court’s denial of that motion.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo Leath’s eligibility for a reduction of sentence. See United States v. Sanchez, 562 F.3d 275, 277-278 (3d Cir.2009).
Leath’s counsel filed an Anders brief and Leath, as permitted in Anders cases, filed a pro se brief. Under Anders v. California, if, after review of the district court record and a conscientious investigation, counsel is convinced the appeal presents no issue of arguable merit, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. 386 U.S. 738, 741-42, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellate counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). “The Court’s inquiry when counsel submits an Anders brief is thus twofold [to determine]: (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements^] and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
At Leath’s February 25,1994 sentencing hearing, the District Court found Leath responsible for distributing “more than” 84 kilograms of crack cocaine, resulting in a base offense level of 42 under then-applicable Sentencing Guidelines. App. at 7. The District Court then applied a nine-level enhancement: “one level for drug trafficking activity near a school, two levels for possession of a gun during drug trafficking activity, two levels for threatening to kill the mother of a witness against him, and four levels for his role in the offense,” for a total offense level of 51 and criminal history category of IV. App. at 7. The District Court sentenced Leath to life imprisonment under the Guidelines.
In 1996, Leath moved for a reduction of sentence based on Sentencing Guidelines Amendment 505. Although Amendment 505 reduced Leath’s base offense level from 42 to 38 under § 2Dl.l(c)(l), the nine-level enhancement yielded a total offense level of 47, resulting in a Guidelines sentence of life imprisonment. The District Court denied the motion.
*364In 2007, to address sentencing disparities between offenses for powder cocaine and crack cocaine, Sentencing Guidelines Amendment 706 reduced by two levels the base offense levels for certain crack cocaine offenses. See U.S.S.G. § 2Dl.l(c), App. C, Amend. 706 (2007). Based on this amendment, Leath sought modification of his sentence under 18 U.S.C. § 3582(c)(2), which provides:
The court may not modify a term of imprisonment once it has been imposed except that ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28[§ ] U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added). The District Court denied relief because Leath’s offense involved 84 kilograms of crack cocaine, a quantity unaffected by Amendment 706. The District Court held that Leath’s term of imprisonment was not based on a sentencing range lowered by the Sentencing Commission.
Although Leath’s counsel recognizes that Leath is ineligible for relief under 18 U.S.C. § 3582(c)(2), he has nonetheless made the admirable effort to consider every possible approach. First, counsel argues that “sentencing range,” as used in § 3582(c)(2), refers “not to the span of months prescribed for any single defendant, but rather to the spectrum of ranges yielded by application of a guideline to all defendants.” Appellant’s Br. at 15. However, counsel correctly notes that this interpretation is foreclosed by the definition of “Guideline Range” in Sentencing Guidelines. See U.S.S.G. Ch. 5, Pt. A, Commentary n. 1. Second, counsel argues that “district courts need not defer to the Commission’s identification of the 4.5-kilogram limit.” Appellant’s Br. at 17. However, counsel concedes this position is not supported by authority. Third, counsel argues that “the Commission’s adoption of the 4.5-kilogram limitation is arbitrary and thus violates the Commission’s enabling legislation.” Appellant’s Br. at 18-19. However, counsel concedes that § 3582(c)(2) is not the vehicle to challenge the Commission’s sentencing determinations. Fourth, counsel argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court’s drug quantity finding of 84 kilograms should have been decided by the jury. However, counsel concedes that if Apprendi and its progeny are declared l-etroactive by the Supreme Court, then “it would be necessary for Mr. Leath to seek relief via motion under 28 U.S.C. § 2255 and/or any other appropriate mechanism.” Appellant’s Br. at 22.
Although we commend the Federal Defender’s Office for its efforts and creativity, Leath is not entitled to relief for the reasons stated by his counsel. We will accept the Anders brief, grant counsel’s motion to withdraw, deny Leath’s motion for appointment of new counsel, and affirm the District Court’s order. | 01-04-2023 | 11-05-2022 |
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