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MEMORANDUM ***
Carl E. Person, pro se, appeals the district court’s dismissal of his Second Amended Complaint (“SAC”) against Google, Inc. Person alleged that Google violated the Sherman Act § 2 for “monopolizing and combining to monopolize the search advertising market and submarket for monetizing the traffic of community search websites.” Person alleges, in the alternative, attempted monopolization under the Sherman Act § 2. The district court dismissed Person’s SAC under Federal Rule of Civil Procedure 12(b)(6). We affirm.
Person has failed to plead facts sufficient to raise the allegations in his complaint that Google engaged in exclusionary, anticompetitive, or predatory behavior beyond a speculative level. See Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Because we hold that Person has failed adequately to allege that Google engaged in exclusionary, anticompetitive, or predatory behavior, we do not reach the question whether Person pleaded facts sufficient to show a relevant market.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Chandan S. Vora appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. § 1915(e)(2)(B) her “petition for removal” filed on April 6, 2009.
As she has done repeatedly before, Vora filed a “petition for removal” in the District Court. She wanted all charges against her dismissed and she sought federal court oversight of and protection from “conspirators” employed by Cambria County police officers and the magisterial district court, who, she said, issued false citations against her and demanded that she pay overdue fines and costs to the county, despite her inability to pay. She claimed that racial and religious bigotry motivated these charges. In her supplement to the petition, Vora attached a non-traffic citation (No. NT-0000222-09) charging her with “scatter rubbish upon land/stream” dated April 1, 2009, two notices of overdue fines and costs (in CP-11CR-0002644-2006 and CP-ll-CR-0000409-2000) totaling $750, and an undated “petition” submitted by the City of Johnstown, in which the City sought a court order permitting it to enter Vora’s property for the purpose of removing trash and to sell any items of value, the proceeds of which would be applied to the cost of the trash removal by the City.
The District Court concluded that the “Petition for Removal” sought to attack state court proceedings over which the District Court had no jurisdiction. Vora filed a timely motion to vacate, in which *759she reasserted, inter alia, that she has been totally disabled since 1983.1 The District Court denied the motion. This timely appeal followed.
Vora has been granted leave to proceed in forma pauperis on appeal. Because her appeal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
Although we sympathize with Vora’s personal hardships, after reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that her petition was correctly denied. Vora petitioned for removal, presumably under the civil rights removal statute, 28 U.S.C. § 1443. The civil rights removal statute applies only to the removal of state court proceedings. Id.; see also 28 U.S.C. § 1447(a). We doubt that any of the proceedings Vora seeks to remove qualifies as a state court proceeding. Even if we assume arguendo that the civil rights removal statute applies to municipal code violation proceedings, to the municipal petition to enter onto Vora’s land, and to notices of overdue fines issued by the Cambria County Court of Common Pleas, Vora’s rambling, generalized, and unsupported allegations do not meet the specific criterion for § 1443 removal. See City of Greenwood, v. Peacock, 384 U.S. 808, 827, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Roman v. Stone, 396 F.2d 502, 503 (1st Cir.1968).
Having found no legal merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). Vora’s motion for a stay is denied.
. Vora states that due to the alleged conspiratorial activities, she "does not have time to eat also, many times[.][A]nd Vora has to make sure that she can get around, as she has nobody to bank on, or [anybody] who will take care of her at anytime as her parents are dead and circumstances got perpetrated on Vora [so] that she could not even make visits to India to her sister [and] brothers, such that by filing such false charges on me, time and again, more than 50, these conspirators have managed to cut me off completely from my kins [so] that nobody wants to accept me as a family member and ... it is impossible for Vora to live alone in India without a family member taking care of her.” See Motion to Vacate at 19.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond W. Carter 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. Carter v. Anderson, Case No. 6:08-cv-00497-GRA, 2009 WL 2152439 (D.S.C. July 17, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
Universal Trading & Investment Co. (“UTI”) appeals the district court’s order granting summary judgment in favor of defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s determination regarding standing, as well as the district court’s interpretation of foreign law. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.2009); Brady v. Brown, 51 F.3d 810, 816 (9th Cir.1995). We affirm.
UTI’s only possible basis of standing was as the assignee of claims belonging to Ukraine, and UTI bore the burden of proving the assignment’s validity. Britton v. Co-op Banking Group, 4 F.3d 742, 746 (9th Cir.1993). The district court did not err in concluding the assignment was invalid under Ukrainian law. The purported assignment of claims by Ukraine was a sham created only to overcome defendants’ initial challenge to UTI’s standing. Even were it not, UTI failed to prove the assignment was valid under Ukrainian law. UTI failed to prove a deputy prosecutor general had the authority to assign the rights of the Ukrainian government against Kiritchenko and Lazarenko to UTI. UTI has also failed to demonstrate that the assignment constitutes the act of a foreign sovereign power; the act of state doctrine is therefore inapplicable. See Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir.1989) (“The burden of proving acts of *233state rests on the party asserting the applicability of the doctrine”).
We have considered the other issues raised by UTI in its opening brief and reject them as meritless. Issues raised for the first time in UTI’s reply brief are waived.1 Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Appellees’ motion to strike portions of UTI's reply brief is denied as moot. UTI's motion for this court to take judicial notice of three certified Ukrainian court decisions is granted.
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MEMORANDUM **
Eun Hee Lee and her two children, Jung Woo Kim and Joo Yon Kim, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s order of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing “whether substantial evidence supports a finding by clear and convincing evidence” that petitioners are removable, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.2004), we deny the petition for review.
We reject petitioners’ contention that the government failed to establish removability by clear and convincing evidence, because Lee admitted she knew her green card was not correct and proper, see Barragan-Lopez v. Mukasey, 508 F.3d 899, 905 (9th Cir.2007) (petitioner’s “own admissions constitute clear, convincing, and unequivocal evidence” of removability), the government submitted substantial evidence of the conspiracy to issue fraudulent green cards in exchange for monetary bribes, and petitioners all lacked valid entry documents, see Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1197 (9th Cir.2006) (“A determination of removability by an IJ or the BIA must be ‘based upon reasonable, substantial, and probative evidence.’ ” (quoting 8 U.S.C. § 1229a(c)(3)(A))).
We also reject petitioners’ contention that the government should be equitably estopped from ordering their removal. Although a government employee, Leland Sustaire, issued petitioners’ fraudulent alien registration cards, the record shows Lee was not “ignorant of the true facts” when she procured the cards, see Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.2008), and “[i]n any event, estoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.2000).
Finally, we find no defects amounting to a due process violation. See Shin, 547 F.3d at 1024-25; Hong v. Mukasey, 518 F.3d 1030, 1035-36 (9th Cir.2008).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Francisco Alejandro Ortiz-Ventura, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Ortiz-Ventura’s motion to reopen as untimely because the motion was filed more than 23 months after the BIA’s March 31, 2005 order dismissing the underlying appeal, and Ortiz-Ventura failed to establish that an exception to the 90-day filing deadline applied. See 8 C.F.R. § 1003.2(c)(2) — (3); cf. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir.2006) (8 C.F.R. § 1003.2(d) did not bar BIA from considering removed alien’s timely motion to reopen where vacated conviction was “key part” of removal proceeding); Wiedersperg v. INS, 896 F.2d 1179, 1181-82 (9th Cir.1990) (former 8 C.F.R. § 3.2 and 8 U.S.C. § 1105a(c) did not bar BIA from reopening where deported alien’s subsequently vacated conviction was the “sole ground” of deportation); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir.1981) (former 8 C.F.R. § 3.2 and 8 U.S.C. § 1105a(c) did not bar BIA from reopening because deportation was not “legally executed” where IJ relied on invalid and subsequently vacated alien smuggling conviction that was “key part” of government’s case).
*236We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Ortiz-Ventura’s motion for an expedited decision is denied as moot.
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.
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*237MEMORANDUM **
Jayoung Moon and her sister, Hayoung Moon, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s order of removal and denying their motion to remand to apply for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing “whether substantial evidence supports a finding by clear and convincing evidence” that petitioners are removable, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.2004), we deny the petition for review.
We reject petitioners’ contention that the government failed to establish removability by clear and convincing evidence because petitioners admitted they lacked valid entry documents and presented no evidence to the contrary. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1195, 1197 (9th Cir.2006).
We also reject petitioners’ contention that the government should be equitably estopped from ordering their removal. Although a government employee, Leland Sustaire, issued the fraudulent alien registration card to petitioners’ father, and they were merely derivative beneficiaries, the record shows petitioners’ father was not “ignorant of the true facts” when he procured the card, Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.2008), and, “[i]n any event, estoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.2000).
In their opening brief, petitioners fail to raise, and therefore have waived, any challenge to the BIA’s denial of their motion to remand to apply for cancellation of removal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (issues not supported by argument are deemed abandoned).
Finally, we find no defects amounting to a due process violation. See Shin, 547 F.3d at 1024-25; Hong v. Mukasey, 518 F.3d 1030, 1035-36 (9th Cir.2008).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Chandan S. Vora appeals from an order of the United States District Court for the Western District of Pennsylvania dismissing pursuant to 28 U.S.C. § 1915(e)(2)(B) her “petition for removal” filed on April 6, 2009.
As she has done repeatedly before, Vora filed a “petition for removal” in the District Court. She wanted all charges against her dismissed and she sought federal court oversight of and protection from “conspirators” employed by Cambria County police officers and the magisterial district court, who, she said, issued false citations against her and demanded that she pay overdue fines and costs to the county, despite her inability to pay. She claimed that racial and religious bigotry motivated these charges. In her supplement to the petition, Vora attached a non-traffic citation (No. NT-0000222-09) charging her with “scatter rubbish upon land/stream” dated April 1, 2009, two notices of overdue fines and costs (in CP-11CR-0002644-2006 and CP-ll-CR-0000409-2000) totaling $750, and an undated “petition” submitted by the City of Johnstown, in which the City sought a court order permitting it to enter Vora’s property for the purpose of removing trash and to sell any items of value, the proceeds of which would be applied to the cost of the trash removal by the City.
The District Court concluded that the “Petition for Removal” sought to attack state court proceedings over which the District Court had no jurisdiction. Vora filed a timely motion to vacate, in which *759she reasserted, inter alia, that she has been totally disabled since 1983.1 The District Court denied the motion. This timely appeal followed.
Vora has been granted leave to proceed in forma pauperis on appeal. Because her appeal lacks arguable merit, we will dismiss it pursuant to § 1915(e)(2)(B)(i). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000).
Although we sympathize with Vora’s personal hardships, after reviewing the District Court pleadings and notice of appeal, we conclude as a matter of law that her petition was correctly denied. Vora petitioned for removal, presumably under the civil rights removal statute, 28 U.S.C. § 1443. The civil rights removal statute applies only to the removal of state court proceedings. Id.; see also 28 U.S.C. § 1447(a). We doubt that any of the proceedings Vora seeks to remove qualifies as a state court proceeding. Even if we assume arguendo that the civil rights removal statute applies to municipal code violation proceedings, to the municipal petition to enter onto Vora’s land, and to notices of overdue fines issued by the Cambria County Court of Common Pleas, Vora’s rambling, generalized, and unsupported allegations do not meet the specific criterion for § 1443 removal. See City of Greenwood, v. Peacock, 384 U.S. 808, 827, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Roman v. Stone, 396 F.2d 502, 503 (1st Cir.1968).
Having found no legal merit to this cause, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). Vora’s motion for a stay is denied.
. Vora states that due to the alleged conspiratorial activities, she "does not have time to eat also, many times[.][A]nd Vora has to make sure that she can get around, as she has nobody to bank on, or [anybody] who will take care of her at anytime as her parents are dead and circumstances got perpetrated on Vora [so] that she could not even make visits to India to her sister [and] brothers, such that by filing such false charges on me, time and again, more than 50, these conspirators have managed to cut me off completely from my kins [so] that nobody wants to accept me as a family member and ... it is impossible for Vora to live alone in India without a family member taking care of her.” See Motion to Vacate at 19.
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MEMORANDUM **
The district court did not abuse its discretion in denying Allan-Selvin’s motion to dismiss for preindictment delay because its finding that Allan was not prejudiced was not clearly erroneous.
Evidence of Allan-Selvin’s prior deportations was not inadmissible under Rule 404(b) of the Federal Rules of Evidence because prior deportation is an element of the offense. Its admission therefore was not plain error. See United States v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir.2007).
The district court did not err in its determination that California Penal Code § 496(a) is categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). See Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Universal Trading & Investment Co. (“UTI”) appeals the district court’s order granting summary judgment in favor of defendants. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s determination regarding standing, as well as the district court’s interpretation of foreign law. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.2009); Brady v. Brown, 51 F.3d 810, 816 (9th Cir.1995). We affirm.
UTI’s only possible basis of standing was as the assignee of claims belonging to Ukraine, and UTI bore the burden of proving the assignment’s validity. Britton v. Co-op Banking Group, 4 F.3d 742, 746 (9th Cir.1993). The district court did not err in concluding the assignment was invalid under Ukrainian law. The purported assignment of claims by Ukraine was a sham created only to overcome defendants’ initial challenge to UTI’s standing. Even were it not, UTI failed to prove the assignment was valid under Ukrainian law. UTI failed to prove a deputy prosecutor general had the authority to assign the rights of the Ukrainian government against Kiritchenko and Lazarenko to UTI. UTI has also failed to demonstrate that the assignment constitutes the act of a foreign sovereign power; the act of state doctrine is therefore inapplicable. See Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir.1989) (“The burden of proving acts of *233state rests on the party asserting the applicability of the doctrine”).
We have considered the other issues raised by UTI in its opening brief and reject them as meritless. Issues raised for the first time in UTI’s reply brief are waived.1 Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Appellees’ motion to strike portions of UTI's reply brief is denied as moot. UTI's motion for this court to take judicial notice of three certified Ukrainian court decisions is granted.
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MEMORANDUM **
Francisco Alejandro Ortiz-Ventura, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Ortiz-Ventura’s motion to reopen as untimely because the motion was filed more than 23 months after the BIA’s March 31, 2005 order dismissing the underlying appeal, and Ortiz-Ventura failed to establish that an exception to the 90-day filing deadline applied. See 8 C.F.R. § 1003.2(c)(2) — (3); cf. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir.2006) (8 C.F.R. § 1003.2(d) did not bar BIA from considering removed alien’s timely motion to reopen where vacated conviction was “key part” of removal proceeding); Wiedersperg v. INS, 896 F.2d 1179, 1181-82 (9th Cir.1990) (former 8 C.F.R. § 3.2 and 8 U.S.C. § 1105a(c) did not bar BIA from reopening where deported alien’s subsequently vacated conviction was the “sole ground” of deportation); Estrada-Rosales v. INS, 645 F.2d 819, 821 (9th Cir.1981) (former 8 C.F.R. § 3.2 and 8 U.S.C. § 1105a(c) did not bar BIA from reopening because deportation was not “legally executed” where IJ relied on invalid and subsequently vacated alien smuggling conviction that was “key part” of government’s case).
*236We lack jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002).
Ortiz-Ventura’s motion for an expedited decision is denied as moot.
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.
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*237MEMORANDUM **
Jayoung Moon and her sister, Hayoung Moon, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s order of removal and denying their motion to remand to apply for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing “whether substantial evidence supports a finding by clear and convincing evidence” that petitioners are removable, Nakamoto v. Ashcroft, 363 F.3d 874, 881-82 (9th Cir.2004), we deny the petition for review.
We reject petitioners’ contention that the government failed to establish removability by clear and convincing evidence because petitioners admitted they lacked valid entry documents and presented no evidence to the contrary. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1195, 1197 (9th Cir.2006).
We also reject petitioners’ contention that the government should be equitably estopped from ordering their removal. Although a government employee, Leland Sustaire, issued the fraudulent alien registration card to petitioners’ father, and they were merely derivative beneficiaries, the record shows petitioners’ father was not “ignorant of the true facts” when he procured the card, Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir.2008), and, “[i]n any event, estoppel against the government is unavailable where petitioners have not lost any rights to which they were entitled.” Sulit v. Schiltgen, 213 F.3d 449, 454 (9th Cir.2000).
In their opening brief, petitioners fail to raise, and therefore have waived, any challenge to the BIA’s denial of their motion to remand to apply for cancellation of removal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (issues not supported by argument are deemed abandoned).
Finally, we find no defects amounting to a due process violation. See Shin, 547 F.3d at 1024-25; Hong v. Mukasey, 518 F.3d 1030, 1035-36 (9th Cir.2008).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ORDER
In March 2008, Antwyn Williams began serving a five-year term of supervised release after completing a prison term for a drug-conspiracy conviction. See 21 U.S.C. §§ 846, 841(a)(1). But in April, Williams violated the conditions of his supervised release by possessing marijuana, which he admitted at a revocation hearing. The district court modified the conditions of Williams’s supervision to include six months at a halfway house and postponed disposition of the violation. At the disposition hearing in January 2009, the court revoked Williams’s supervised release and imposed a five-year term of reimprisonment, based in part on new drug and alcohol violations, an unsuccessful termination from the halfway house, and a recent theft conviction in state court. Williams filed a notice of appeal, but appointed counsel moves to withdraw because she cannot find a nonfrivolous issue to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Williams did not respond to our invitation to comment on his counsel’s submission, see Cir. R. 51(b), and so we confine our review to the potential issues identified in counsel’s facially adequate brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
Counsel first considers whether Williams could argue that the district court abused its discretion when it revoked his supervised release. But we would not deem the court’s decision abusive because revocation was mandatory after Williams admitted to possessing marijuana, a controlled substance. See 18 U.S.C. § 3583(g)(1) (1994). The court did, however, err in citing Williams’s three failed drug tests in June 2008 as another basis for mandatory revocation. See 18 U.S.C. § 3583(g)(4) (2006). In 1999, when Williams was part of the drug conspiracy, failing drug tests was not a basis for mandatory revocation. See 18 U.S.C. § 3583(g) (1994); Johnson v. United States, 529 U.S. 694, 701-02, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); United States v. Smith, 354 F.3d 171, 173 (2d Cir.2003). But the error was harmless because possession of a controlled sub*240stance was still a cause for mandatory revocation. See 18 U.S.C. § 3583(g)(1) (1994).
Counsel also briefly considers whether there were any procedural irregularities in the revocation proceedings, but she correctly concludes that the district court complied with Federal Rule of Criminal Procedure 32.1. Williams was at all times represented by counsel, he received written notice of the alleged violations, and he was allowed to present evidence against the contested violations and make a statement in mitigation. See Fed.R.Crim.P. 32.1(b). Therefore, we agree that it would be frivolous for Williams to claim any procedural error.
Counsel next considers whether Williams could challenge his term of reimprisonment as plainly unreasonable, an extremely narrow standard of review. See United States v. Kizeart, 505 F.3d 672, 674-75 (7th Cir.2007). Although the Chapter 7 policy statements suggested a term of 12 to 18 months’ reimprisonment, the district court imposed a term of five years—the maximum allowed by law for the underlying offense of conviction, a class A felony. See 18 U.S.C. § 3583(e)(3) (1994). In its written memorandum, the court explained that the higher term compensated for the substantial sentence reduction that Williams had received after assisting the government with another prosecution. See U.S.S.G. § 7B1.4 cmt. n. 4. Additionally, the court found significant that Williams had completed substance-abuse treatment in prison, but then he used marijuana shortly after his release and continued to use drugs in June while the revocation petition was pending. The court also condemned Williams’s use of alcohol while at the halfway house, concluding that Williams’s “refusal to remain free of alcohol and illegal substances” made a five-year term appropriate. The court thoroughly considered the applicable policy statements and the factors listed in 18 U.S.C. § 3553(a), see United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008), and so we agree with counsel that a challenge to the term of reimprisonment would be frivolous.
Finally, counsel correctly notes that Williams should save any claim of ineffective assistance of counsel for collateral review where a more complete record can be developed and where Williams is not represented by the lawyer who represented him at the revocation hearing. See Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Rezin, 322 F.3d 443, 445 (7th Cir.2003).
Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
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ORDER
Arlinda Johns appeals the denial of her motion for a reduced sentence under 18 U.S.C. § 3582(c)(2). She pleaded guilty in 2003 to conspiring to distribute crack, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 151 months’ imprisonment. That term was later reduced to 121 months on her motion after the guideline applicable to crack offenses was amended retroactively. In November 2008 she filed another motion to reduce her sentence, this time hoping to take advantage of a different amendment to the guidelines affecting how criminal history points are calculated.
At Johns’s original sentencing hearing, the district court assigned her a Criminal History Category of II, giving her one criminal history point for a misdemeanor marijuana-possession conviction that resulted in a 12-month term of court supervision and two points for committing her current crime while under that supervision. See U.S.S.G. § 4Al.l(e), (d). After Johns was sentenced, Amendment 709 changed how misdemeanor offenses are counted in an offender’s criminal history. See U.S.S.G. § 4A1.2(c), supplement to app. C, amend. 709, at 235-41 (2008).
In her motion Johns asserts that, after Amendment 709, misdemeanors no longer are used to compute an offender’s criminal history score, and therefore her criminal history score should be recalculated without reference to her conviction for possession of marijuana. Without that conviction, she continues, her Criminal History Category would be I, and the resulting guidelines range lower.
*242The district court denied the motion, first, because the court concluded that Amendment 709 had no effect on Johns’s criminal history score. Contrary to Johns’s assertion, the court stated that, with a few exceptions, misdemeanors are still included in calculating a criminal history score and her marijuana conviction would be treated the same even after the amendment. Second, the court noted that Amendment 709 is not retroactive, so Johns is precluded from taking advantage of the revision even if it were favorable to her.
On appeal Johns argues that the amendment is retroactive because it is a clarifying amendment, rather than a substantive one. Thus, Johns contends, the district court should have considered the factors supporting a lower sentence detailed in her motion, and she asks that her case be remanded for resentencing.
We review questions of law, including interpretations of the guidelines, de novo. United States v. Jackson, 573 F.3d 398, 399 (7th Cir.2009). A federal prisoner whose sentence has become final cannot take advantage of a later amendment to the guidelines unless it is included in the list of retroactive amendments found in Section lB1.10(c) of the sentencing guidelines regardless whether the amendment is substantive or clarifying. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a); United States v. McHan, 386 F.3d 620, 622 (4th Cir.2004); United States v. Lykes, 73 F.3d 140, 143 (7th Cir.1995). Amendment 709 is not listed in § lB1.10(c), and therefore the district court had no authority to grant Johns’s motion. Accordingly, the court had no need to address the reasons Johns gave for a lower sentence-the court did not have the power to reduce her sentence even if it wanted to.
We add, however, that even if Amendment 709 applied to Johns, her criminal history score would be unaffected. In general, misdemeanor offenses are still included in a criminal history score, with the exception of various listed offenses that the Sentencing Commission deemed to be not serious enough to warrant an increased sentence. See U.S.S.G. § 4A1.2(c), supplement to app. C, amend. 709, at 239 (2008); United States v. Garrett, 528 F.3d 525, 528 (7th Cir.2008). Possession of marijuana is not similar to any of the listed offenses and therefore was properly included in Johns’s criminal history score. See United States v. Russell, 564 F.3d 200, 206-07 (3d Cir.2009).
AFFIRMED.
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MEMORANDUM **
The County of San Bernardino (the “County”) appeals the district court’s award of damages, interest penalties, and attorney fees for the County’s breach of a construction contract with L.T. Engineering, Inc. (“LTE”). The County does not contest its breach-of-contract liability but challenges the damages award in favor of Safeco Insurance Co. (“Safeco”), assignee and subrogee of LTE. Our decision in this case is controlled by the standard of review, and we review the district court’s award of actual damages for clear error. Jarvis v. K2 Inc., 486 F.3d 526, 529 (9th Cir.2007). We affirm.
The County argues that the admitted evidence in the record did not support the award for lost productivity, which was based on the testimony of Safeco’s expert witness. Safeeo’s expert may rely in an appropriate case, however, on inadmissible data that others collected. See Fed. R.Evid. 703; Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir.1997). Safeco’s expert also had extensive knowledge of the underlying facts supporting his testimony, and his conclusions were based on project records and consistent with evidence admitted at trial. We conclude that there was no clear error in the district court’s determination that sufficient evidence supported the expert’s damage testimony.
The district court also did not commit clear error by accepting the Safeco expert’s measured-mile analysis and method of identifying impacted and unimpacted days. The County contends that the expert’s analysis might have excluded some low-productivity unimpacted days or wrongly attributed decline in production to the fault of the County. Yet “once the cause and existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment. Liability cannot be evaded because damages cannot be measured with *318exactness.” Schroeder v. Auto Driveaway Co., 11 Cal.3d 908, 114 Cal.Rptr. 622, 523 P.2d 662, 670 (1974) (internal citation omitted).
The district court concluded that the delays LTE caused were “insignificant” in light of the scope of the project and the County’s own delays. Safeco presented a reasonable estimate of lost-productivity damages, and the County’s argument that the damage amount is not exact is insufficient to establish clear error.
The County further claims that LTE caused some part of the 209 days of delay underlying the district court’s delay-damage award. But the County has not shown that any of the insignificant delays LTE caused were on the project’s critical path. Accordingly, whatever delays LTE’s improper actions caused do not impact the amount of delay damages. See 5 Philip L. Bruner & Patrick J. O’Connor, Jr., Construction Law § 15:29. Because Safeco conducted a reasonable critical-path analysis, the district court’s factual finding that the County is responsible for 209 days of delay damages is “plausible in light of the record viewed in its entirety” and thus is not clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
Nor did the district court commit clear error by determining that there was no genuine dispute regarding the County’s obligation to release the funds within sixty days of project completion. The district court’s determination that there was no bona fide dispute was based on a plausible interpretation of facts in the record suggesting that the County, through its employees, acted in bad faith. The County did not contest at trial the testimony that the entire retention amount was wrongfully withheld, waiving this argument on appeal. Canada Life Assurance Co. v. La-Peter, 563 F.3d 837, 846 (9th Cir.2009). The damage penalty for the County’s wrongful withholding of retention funds was appropriate and not clear error, as was the district court’s award of attorney’s fees. Cal. Pub. Cont.Code § 7107.
Finally, the evidence at trial shows that the County did not make timely progress payments to LTE. Id. § 20104.50(b). The County did not object to such testimony at trial, and it does not argue on appeal that it ever made these payments.
We conclude that the district court’s award of damages was not clear error, and there was no error in law arising from the district court’s award of prejudgment interest, damage penalties, and attorney’s fees.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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MEMORANDUM **
Emil Badalzadeh, a native and citizen of Iran, petitions for review from the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006), and we review de novo constitutional *239violations, see Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000), and we deny the petition for review.
Substantial evidence supports the BIA’s finding that the three-day detention during which the police kicked and pushed Badalzadeh one time and told her to sign a confession did not rise to level of past persecution. See Gu, 454 F.3d at 1018-19. Further, substantial evidence supports the BIA’s conclusion that Badalzadeh’s well-founded fear is undermined because she remained in Iran without incident for two years after her arrest, see Lata, 204 F.3d at 1245, and because she safely traveled back and forth from Iran twice, see Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir.2008). Accordingly, her asylum claim fails.
It follows that because Badalzadeh failed to establish eligibility for asylum she necessarily failed to establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the BIA’s denial of CAT relief because Badalzadeh failed to show it is more likely than not that she would be tortured if returned to Iran, see Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006). We reject Badalzadeh’s claim that the agency violated her due process by denying her CAT claim, see Lata, 204 F.3d at 1246 (9th Cir.2000).
Badalzadeh’s request for judicial notice is denied. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marvin Raul Rodriguez-Pao, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Rodriguez-Pao’s challenge to the denial of his asylum claim because he failed to exhaust it before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Substantial evidence supports the agency’s adverse credibility determination based on the omission from RodriguezPao’s declaration of his union involvement and his problems with the union, and based on internal inconsistencies in his testimony regarding the dates he was hired and fired. See Li v. Ashcroft, 378 F.3d 959, 962-64 (9th Cir.2004), see also Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005). Rodriguez-Pao failed to adequately explain these discrepancies and omission when given the opportunity, see id. at 1066-67, and they go to the heart of his claim, Chebchoub, 257 F.3d at 1043. Accordingly, Rodriguez-Pao’s withholding of removal claim fails.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Angela Vardanesi Cocharian, a native and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility finding based on an inconsistency between Cocharian’s testimony and her declaration regarding where she was attacked in October 1998, see Don v. Gonzales, 476 F.3d 738, 741-43 (9th Cir.2007), and Cocharian failed to adequately explain this discrepancy when given the opportunity, Kaur v. Gonzales, 418 F.3d 1061, 1066-67 (9th Cir.2005). Therefore, the IJ properly required Cocharian to corroborate her asylum claim, see Sidhu v. *242INS, 220 F.3d 1085, 1090-91 (9th Cir.2000), and she failed to do so. Accordingly, Cocharian’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Amritpal Kaur Sar, a native of Malaysia and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen deportation proceedings based on ineffective assistance of counsel. We have *243jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Sar’s motion to reopen as untimely where the motion was filed more than 3 years after the BIA’s September 18, 2002, order dismissing her appeal, see 8 C.F.R. § 1003.2(c)(2), and Sar failed to establish the due diligence required to warrant tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rafaela Jimenez Luna, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo claims of due process violations in immigration proceedings. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006). We deny the petition for review.
We agree with the BIA’s conclusion that the IJ based her decision on the evidence Jimenez Luna presented. Therefore, Jimenez Luna’s claim that she was deprived of a full and fair hearing fails. Cf. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Emil Badalzadeh, a native and citizen of Iran, petitions for review from the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of fact, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006), and we review de novo constitutional *239violations, see Lata v. INS, 204 F.3d 1241, 1244 (9th Cir.2000), and we deny the petition for review.
Substantial evidence supports the BIA’s finding that the three-day detention during which the police kicked and pushed Badalzadeh one time and told her to sign a confession did not rise to level of past persecution. See Gu, 454 F.3d at 1018-19. Further, substantial evidence supports the BIA’s conclusion that Badalzadeh’s well-founded fear is undermined because she remained in Iran without incident for two years after her arrest, see Lata, 204 F.3d at 1245, and because she safely traveled back and forth from Iran twice, see Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir.2008). Accordingly, her asylum claim fails.
It follows that because Badalzadeh failed to establish eligibility for asylum she necessarily failed to establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).
Substantial evidence supports the BIA’s denial of CAT relief because Badalzadeh failed to show it is more likely than not that she would be tortured if returned to Iran, see Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006). We reject Badalzadeh’s claim that the agency violated her due process by denying her CAT claim, see Lata, 204 F.3d at 1246 (9th Cir.2000).
Badalzadeh’s request for judicial notice is denied. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marvin Raul Rodriguez-Pao, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Rodriguez-Pao’s challenge to the denial of his asylum claim because he failed to exhaust it before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
Substantial evidence supports the agency’s adverse credibility determination based on the omission from RodriguezPao’s declaration of his union involvement and his problems with the union, and based on internal inconsistencies in his testimony regarding the dates he was hired and fired. See Li v. Ashcroft, 378 F.3d 959, 962-64 (9th Cir.2004), see also Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005). Rodriguez-Pao failed to adequately explain these discrepancies and omission when given the opportunity, see id. at 1066-67, and they go to the heart of his claim, Chebchoub, 257 F.3d at 1043. Accordingly, Rodriguez-Pao’s withholding of removal claim fails.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Angela Vardanesi Cocharian, a native and citizen of Armenia, petitions pro se for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility finding based on an inconsistency between Cocharian’s testimony and her declaration regarding where she was attacked in October 1998, see Don v. Gonzales, 476 F.3d 738, 741-43 (9th Cir.2007), and Cocharian failed to adequately explain this discrepancy when given the opportunity, Kaur v. Gonzales, 418 F.3d 1061, 1066-67 (9th Cir.2005). Therefore, the IJ properly required Cocharian to corroborate her asylum claim, see Sidhu v. *242INS, 220 F.3d 1085, 1090-91 (9th Cir.2000), and she failed to do so. Accordingly, Cocharian’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Amritpal Kaur Sar, a native of Malaysia and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen deportation proceedings based on ineffective assistance of counsel. We have *243jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo claims of due process violations, including claims of ineffective assistance of counsel in immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying Sar’s motion to reopen as untimely where the motion was filed more than 3 years after the BIA’s September 18, 2002, order dismissing her appeal, see 8 C.F.R. § 1003.2(c)(2), and Sar failed to establish the due diligence required to warrant tolling of the filing deadline, see Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003) (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Raul Montelongo Gomez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir.2006). We deny the petition for review.
The BIA did not abuse its discretion by denying Gomez’s motion to reopen because the BIA considered the evidence Gomez submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005) (holding that abuse of discretion will be found when denial of motion was arbitrary, irrational, or contrary to law).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ali Mohammed Ali Dhaifallah, a native and citizen of Yemen, petitions for review in case No. 06-74350 of a Board of Immigration Appeals’ (“BIA”) order (1) affirming an immigration judge’s (“IJ”) denial of a motion to continue; (2) dismissing his appeal from the IJ’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”); and (3) denying his motion to reopen and remand for adjustment of status. Dhaifallah also petitions for review in No. 06-75133 of the BIA’s order denying reconsideration. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion both the denial of a motion to continue, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and the denial of a motion to remand, Romero-Ruiz v. Muka*246sey, 538 F.3d 1057, 1062 (9th Cir.2008). We review factual findings for substantial evidence. See Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We review de novo claims of due process violations. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We grant in part and deny in part the petition for review in No. 06-74350, and we dismiss as moot the petition for review in No. 06-75133.
The IJ did not abuse his discretion in denying Dhaifallah’s motion to continue because it was speculative as to whether the 1-130 petition would be granted. See Sandoval-Luna, 526 F.3d at 1247. Dhaifallah’s due process contention regarding the denial of his motion to continue fails. See Colmenar, 210 F.3d at 971 (requiring prejudice to prevail on a due process challenge).
Dhaifallah does not challenge the agency’s determination that his asylum application is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
Substantial evidence supports the denial of withholding of removal because Dhaifallah feared harm based upon a land ownership dispute rather than on account of his membership in a particular social group. See Unuakhaulu v. Gonzales, 416 F.3d 931, 934, 937-38 (9th Cir.2005); cf. Ali v. Ashcroft, 394 F.3d 780, 785 (9th Cir.2005).
Substantial evidence also supports the denial of CAT relief because Dhaifallah failed to show that it is more likely than not that, if returned to Yemen, he will be tortured by government officials or with their acquiescence. See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir.2009).
When considering Dhaifallah’s motion to reopen and remand, the BIA did not have the benefit of our recent decision in Ahmed v. Mukasey, 548 F.3d 768, 772 (9th Cir.2008), which held that the agency may not deny a motion to reopen for adjustment of status based solely on the government’s objection. We therefore grant the petition as to the motion to reopen claim. On remand, the BIA shall provide a reasoned explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005).
Accordingly, in No. 06-74350, we deny the petition as to Dhaifallah’s motion to continue, withholding of removal and CAT claims, and we grant the petition as to Dhaifallah’s motion to reopen claim, and we remand. In No. 06-75133, we dismiss as moot the petition as to Dhaifallah’s motion to reconsider.
No. 06-74350: PETITION FOR REVIEW DENIED in part;
GRANTED in part; REMANDED.
No. 06-75133: PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Zahid Hussain, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen removal proceedings (No. 05-70453). Hussain and his wife, Ta-lat, petition for review of the BIA’s denial of their motion to reconsider the denial of Hussain’s motion to reopen (No. 05-71745). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen and reconsider. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). In No. 05-70453, we deny petition for review, and in No. 05-71745, we deny in part and dismiss in part the petition for review.
In No. 05-70453, the BIA did not abuse its discretion in denying Hussain’s motion to reopen as untimely because he filed it nearly two years after the BIA issued its final order, see 8 C.F.R. § 1003.2(c)(2), and Hussain failed to demonstrate changed circumstances in Pakistan to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(h); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”). We reject Hussain’s contention that the BIA abused its discretion by failing to consider the evidence submitted with the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). Further, Hussain’s contention that the BIA denied the motion without explanation is not supported by the record.
In No. 05-71745, the BIA did not abuse its discretion in denying petitioners’ motion to reconsider as untimely because it was filed beyond the 30-day time limitation for motions to reconsider. See 8 C.F.R. § 1003.2(b)(2).
Moreover, the BIA did not abuse its discretion in denying the motion to reissue its December 2004 order denying the motion to reopen, and its December 2002 order summarily affirming the immigration judge’s decision. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law.”). In particular, the record indicates that the motion to reopen and notice of appearance were filed only in Zahid Hussain’s name, such that the BIA properly noted that Talat Hussain was not a party to the motion. Likewise, the record reflects that the December 2002 summary affirmance was mailed to Talat Hussain’s counsel of record.
Finally, we lack jurisdiction to review the BIA’s refusal to reopen sua sponte. See Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th Cir.2002).
No. 05-70453: PETITION FOR REVIEW DENIED.
No. 05-71745: 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.
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MEMORANDUM **
Zhongling Fan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based on an inconsistency within Fan’s testimony regarding the number of times the authorities interrogated her. See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005). Fan failed to adequately explain this discrepancy when given the opportunity, id. at 1066-67. Accordingly, Fan’s asylum and withholding of removal claims fail. *250See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Raul Montelongo Gomez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th Cir.2006). We deny the petition for review.
The BIA did not abuse its discretion by denying Gomez’s motion to reopen because the BIA considered the evidence Gomez submitted and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Oh v. Gonzales, 406 F.3d 611, 612 (9th Cir.2005) (holding that abuse of discretion will be found when denial of motion was arbitrary, irrational, or contrary to law).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ali Mohammed Ali Dhaifallah, a native and citizen of Yemen, petitions for review in case No. 06-74350 of a Board of Immigration Appeals’ (“BIA”) order (1) affirming an immigration judge’s (“IJ”) denial of a motion to continue; (2) dismissing his appeal from the IJ’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”); and (3) denying his motion to reopen and remand for adjustment of status. Dhaifallah also petitions for review in No. 06-75133 of the BIA’s order denying reconsideration. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion both the denial of a motion to continue, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and the denial of a motion to remand, Romero-Ruiz v. Muka*246sey, 538 F.3d 1057, 1062 (9th Cir.2008). We review factual findings for substantial evidence. See Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006). We review de novo claims of due process violations. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We grant in part and deny in part the petition for review in No. 06-74350, and we dismiss as moot the petition for review in No. 06-75133.
The IJ did not abuse his discretion in denying Dhaifallah’s motion to continue because it was speculative as to whether the 1-130 petition would be granted. See Sandoval-Luna, 526 F.3d at 1247. Dhaifallah’s due process contention regarding the denial of his motion to continue fails. See Colmenar, 210 F.3d at 971 (requiring prejudice to prevail on a due process challenge).
Dhaifallah does not challenge the agency’s determination that his asylum application is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).
Substantial evidence supports the denial of withholding of removal because Dhaifallah feared harm based upon a land ownership dispute rather than on account of his membership in a particular social group. See Unuakhaulu v. Gonzales, 416 F.3d 931, 934, 937-38 (9th Cir.2005); cf. Ali v. Ashcroft, 394 F.3d 780, 785 (9th Cir.2005).
Substantial evidence also supports the denial of CAT relief because Dhaifallah failed to show that it is more likely than not that, if returned to Yemen, he will be tortured by government officials or with their acquiescence. See Wakkary v. Holder, 558 F.3d 1049, 1068 (9th Cir.2009).
When considering Dhaifallah’s motion to reopen and remand, the BIA did not have the benefit of our recent decision in Ahmed v. Mukasey, 548 F.3d 768, 772 (9th Cir.2008), which held that the agency may not deny a motion to reopen for adjustment of status based solely on the government’s objection. We therefore grant the petition as to the motion to reopen claim. On remand, the BIA shall provide a reasoned explanation for its decision. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005).
Accordingly, in No. 06-74350, we deny the petition as to Dhaifallah’s motion to continue, withholding of removal and CAT claims, and we grant the petition as to Dhaifallah’s motion to reopen claim, and we remand. In No. 06-75133, we dismiss as moot the petition as to Dhaifallah’s motion to reconsider.
No. 06-74350: PETITION FOR REVIEW DENIED in part;
GRANTED in part; REMANDED.
No. 06-75133: PETITION FOR REVIEW DISMISSED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Zahid Hussain, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen removal proceedings (No. 05-70453). Hussain and his wife, Ta-lat, petition for review of the BIA’s denial of their motion to reconsider the denial of Hussain’s motion to reopen (No. 05-71745). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen and reconsider. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). In No. 05-70453, we deny petition for review, and in No. 05-71745, we deny in part and dismiss in part the petition for review.
In No. 05-70453, the BIA did not abuse its discretion in denying Hussain’s motion to reopen as untimely because he filed it nearly two years after the BIA issued its final order, see 8 C.F.R. § 1003.2(c)(2), and Hussain failed to demonstrate changed circumstances in Pakistan to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(h); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”). We reject Hussain’s contention that the BIA abused its discretion by failing to consider the evidence submitted with the motion to reopen. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). Further, Hussain’s contention that the BIA denied the motion without explanation is not supported by the record.
In No. 05-71745, the BIA did not abuse its discretion in denying petitioners’ motion to reconsider as untimely because it was filed beyond the 30-day time limitation for motions to reconsider. See 8 C.F.R. § 1003.2(b)(2).
Moreover, the BIA did not abuse its discretion in denying the motion to reissue its December 2004 order denying the motion to reopen, and its December 2002 order summarily affirming the immigration judge’s decision. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law.”). In particular, the record indicates that the motion to reopen and notice of appearance were filed only in Zahid Hussain’s name, such that the BIA properly noted that Talat Hussain was not a party to the motion. Likewise, the record reflects that the December 2002 summary affirmance was mailed to Talat Hussain’s counsel of record.
Finally, we lack jurisdiction to review the BIA’s refusal to reopen sua sponte. See Ekimian v. INS, 303 F.3d 1153, 1159-60 (9th Cir.2002).
No. 05-70453: PETITION FOR REVIEW DENIED.
No. 05-71745: 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.
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MEMORANDUM **
Zhongling Fan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based on an inconsistency within Fan’s testimony regarding the number of times the authorities interrogated her. See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005). Fan failed to adequately explain this discrepancy when given the opportunity, id. at 1066-67. Accordingly, Fan’s asylum and withholding of removal claims fail. *250See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ana Milagro Campos, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her second motion to reopen proceedings in which she was ordered removed in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.
*251The BIA did not abuse its discretion in denying Campos’ motion to reopen as untimely. See 8 C.F.R. § 1003.2(c)(2) (an alien seeking to reopen proceedings must file the motion to reopen no later than 90 days after the final administrative order). The BIA correctly concluded that equitable tolling did not apply because Campos married her United States citizen husband after the motions deadline, so her motion would have been untimely regardless of the alleged misconduct. See Iturtibarria, 321 F.3d at 897 (equitable tolling is available to a petitioner who is prevented from filing due to deception, fraud or error, and exercises due diligence in discovering such circumstances).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Luis Ricardo Cardenas-Reyes appeals from the district court’s judgment revoking his supervised release and imposing a 24-month sentence of imprisonment, plus a new 12-month term of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cardenas-Reyes’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Soon Hak Baek, his wife, Eun Joo Baek, and his daughter, In Hee Baek, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) order of removal and denial of a motion to continue. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam). We deny in part and dismiss in part the petition for review.
The IJ did not abuse his discretion in denying petitioners’ motion to continue because petitioners’ eligibility for relief was speculative and not immediately available. See id. at 1247.
We lack jurisdiction to consider petitioners’ contention that they are eligible for a waiver because this issue was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
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.
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ORDER
Appellant seeks a declaratory judgment that California Rule of Court (“CRC”) 8.1115(a) deprives Appellant of his Fourteenth Amendment due process and equal protection rights and creates a system in which California courts apply result-oriented legal rules to litigants in unpublished cases, which rules are not applied to later litigants.
The California Supreme Court has declined to review the California Court of Appeal’s reversal of Appellant’s judgment entered on his personal injury verdict. Appellant does not seek a reversal of the Court of Appeal’s decision nor of the California Supreme Court’s denial of his petition for review. Plaintiff was also denied review by writ of certiorari by the United States Supreme Court. Further, Appellant does not claim that he is likely to be harmed by CRC 8.1115(a) in the future: that is, Appellant is not “realistically threatened by a repetition of the violation.” Gest v. Bradbury, 443 F.3d 1177 (9th Cir.2006) (emphasis in original) (citations omitted). Thus, there is no claimed harm which this court can redress.
This appeal is DISMISSED as MOOT. The parties shall bear their own costs on appeal. A certified copy of this order shall serve as the mandate of this court.
SO ORDERED.
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MEMORANDUM *
Lorenzo Jones (“Jones”) appeals his conviction and 262-month sentence for be*256ing a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We affirm.
Viewed in the light most favorable to the prosecution, there was sufficient evidence that Jones jointly possessed the firearms with his passengers. Possession need not be exclusive, so long as each person knows of the object’s presence and has the intention and ability to control it. See United States v. Cain, 130 F.3d 381, 382 (9th Cir.1997); see also United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989) (“ ‘[T]o establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which contraband is concealed.’ ”) (quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986)).
In a recorded jail conversation, Jones told a friend that he knew one of the car’s occupants was “dirty in the car” and “had burners on him.” After initially stopping for police, who approached the van with weapons drawn, Jones told his friend he decided to run from the police to “give his homeboy room to bounce” and “do what he got to do.”
From these statements, a rational juror could conclude that Jones knew of the weapons in the car and intended to exercise dominion over them by driving the van away from police to facilitate their disposal. See also United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir.1990) (finding that conduct by driver aiding disposal of contraband was probative of joint possession). Jones’s recorded statements distinguish this case from the numerous constructive possession cases on which he relies—in which circumstantial proof was insufficient—because here there was unusual direct evidence of knowledge and intent.1
The court did not err by instructing the jury that Jones’s presence in the car, by itself, was insufficient to support a finding of possession. Although the court did not use Jones’s suggested language, Jones was not entitled to a mere presence instruction of his own phrasing. United States v. Ferris, 719 F.2d 1405, 1407-08 (9th Cir.1983). Nor did the given instruction eliminate the requirement that Jones intended to exercise control of the weapons, an element which was correctly stated in the possession instruction.
Jones concedes that the district court did not err by failing to require the government to prove that his possession had a substantial effect on interstate commerce. See United States v. Younger, 398 F.3d 1179, 1193 (9th Cir.2005). His argument that the district court should have instructs ed the jury that he faced a mandatory fifteen-year sentence is likewise foreclosed by precedent. Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994); United States v. Frank, 956 F.2d 872, 879 (9th Cir.1991).
Jones argues the district court abused its discretion by responding to a jury question by referring the jury to the instructions already given. The jury did not identify an ambiguity in the instructions or confusion over a legal issue; rather, it appeared the jury was seeking advice on how the law applies to the facts of the *257case—something that is within the jury’s province—and the court acted reasonably in referring the jury back to its original instructions. See Arizona v. Johnson, 351 F.3d 988, 995 (9th Cir.2003); see also United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202 (9th Cir.2000) (noting that referring jury back to instructions avoids “possible error sometimes found in trying to elaborate on a given instruction”). Indeed, answering the particular question posed in this case could have been tantamount to a directed verdict. The trial court has considerable discretion in formulating a response to jury questions, United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir.2000), and it did not abuse that discretion here.
Nor did the district court abuse its discretion by declining to declare a mistrial because of the second juror’s misconduct. The court carefully examined all of the parties involved in the brief encounter and determined that the second juror, who essentially had only de minimis contact with the witness, could remain. See Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697-98 (9th Cir.2004) (factors to consider include length and nature of contact, evidence of actual impact and possibility of eliminating prejudice with limiting instruction); United States v. LaFleur, 971 F.2d 200, 206 (9th Cir.1991) (this court gives “substantial weight” to district court’s conclusion regarding the effect of juror misconduct). Moreover, because the second juror did not actually participate in the deliberations or verdict, Jones cannot demonstrate prejudice. United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir.2006).
The district court did err by failing to obtain a written stipulation from Jones to proceed with eleven jurors, as required by Fed.R.Crim.P. 23(b)(2)(B). However, as we clarified in United States v. Perez, 116 F.3d 840 (9th Cir.1997) (en banc), unobjected-to errors are “forfeited” but reviewed for plain error. Id. at 845 (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Although the error was plain, we must also consider whether it affected Jones’s substantial rights, which in most cases means whether the error was prejudicial. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Here, not only did Jones’s attorney represent that he had discussed the decision with Jones, who was willing to proceed with eleven jurors, but a recorded phone conversation similarly confirms that Jones knowingly and intelligently consented to an eleven-member jury. There is no indication his decision would have differed if the court had required a stipulation in writing, and we therefore conclude the court’s error did not affect Jones’s substantial rights.
The district court did not abuse its discretion by permitting limited gang testimony, as relevant to explain the genesis of the shoot-out that was inextricably intertwined with the van’s stop, see United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989), as well as to explain the relationship of the passengers in the van. The court also gave a limiting instruction as to the proper use of this evidence, which further minimized any prejudicial impact. See United States v. Easter, 66 F.3d 1018, 1021 (9th Cir.1995).
The use of Jones’s 1999 statement that he would run if caught by police with contraband was relevant to intent and not unduly prejudicial, especially in light of Jones’s own statement that he had fled to give his homeboy “room to bounce.” The court did not violate Fed.R.Evid. 106’s “rule of completeness” by admitting only some recorded jail conversations, because the additional conversations (or portions thereof) which Jones wanted to admit were not necessary to prevent the admitted por*258tions from being misleading or even relevant to the primary issues at trial.
We also affirm Jones’s sentence. Although the district court’s oral determination denying Jones a two-level reduction for acceptance of responsibility included both proper and improper factors, we may affirm on any ground supported by the record. See United States v. Oplinger, 150 F.3d 1061, 1069 (9th Cir.1998). The reduction is to be primarily based on pretrial conduct and statements by the defendant. U.S.S.G. § 3E1.1 Cmt. 2. Here, Jones did not willingly admit to the facts presented at trial or otherwise accept responsibility prior to trial. Instead, he inadvertently helped the government’s case with recorded jail statements, and the district court correctly surmised that Jones’s pretrial actions did not clearly reflect acceptance of responsibility.
Nor did the district court err by failing to apply a two-level reduction for minor participation. Because Jones was sentenced pursuant to the Armed Career Criminal Act, the only reduction available to him was for acceptance of responsibility. See United States v. George, 56 F.3d 1078, 1086 (9th Cir.1995); U.S.S.G. § 4B1.4(b)(3)(B).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided *256by Ninth Circuit Rule 36-3.
. Jones also argues that the facts of this case make him guilty of accessory after the fact rather than possession of a firearm. However, our task is not to consider the propriety of other crimes the government could have charged; rather, if conduct violates more than one statute, the government may elect the statute it wishes to charge. See United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir.1986).
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MEMORANDUM ***
Petitioners Ganit Micheil Gergies Koussa and her son, Maged Nashid,1 petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of their application for asylum and withholding of removal. The IJ denied relief after making an adverse-credibility determination. We conclude that the IJ’s adverse-credibility determination is not supported by substantial evidence. We therefore grant Koussa’s petition and remand on an open record. We dismiss Nashid’s petition for lack of jurisdiction in light of the BIA’s September 24, 2007, order to reopen and terminate his removal proceedings. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002) (order).
Where, as here, the BIA adopts the IJ’s decision without issuing an opinion, it is the IJ’s decision that is reviewed as the final agency determination. Knezevic v. Ashcroft, 367 F.3d 1206, 1210 (9th Cir.2004). We review an adverse-credibility determination for substantial evidence. Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir.2007). Even if some factors relied on by the IJ are unsupported or irrelevant, we will uphold an adverse-credibility finding “so long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the petitioner’s] claim of persecution.” Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004) (internal quotation and citation omitted).2
The IJ concluded that the events on which testimony was given by Koussa and her son, if they occurred as described by Petitioners, would establish persecution. However, the IJ made an adverse-credibility determination as to Koussa and her son on the basis of inconsistencies and actions that he did not find credible.
The IJ found it inconsistent (1) that Koussa alleged “in her affidavit that [her *260colleague] attempted to rape her” but she did not claim in her hearing testimony that she was raped; (2) that Koussa’s “written statement says she was detained three days, but her application says she was ‘almost detained’ ”; (B) that Koussa’s written statement does not contain the allegation made in her hearing testimony that two persons from the security force came to her home on June 3, took her for questioning, and beat her; (4) that Koussa claimed “the passport was obtained on Tuesday (June 3) and later the son stated he obtained both his and his mother’s passport on June 1”; and (5) that Koussa’s application for asylum “indicates that [Koussa] confronted her boss and was taken into custody on the 27th of May, whereas her testimony at the hearing was that she was taken in on the 28th of May.” After our review of the record, we conclude that these inconsistencies, most of which are substantially eliminated when viewed in the context of the entire record, do not go to the heart of Koussa’s claim and are minor discrepancies. See Li, 378 F.3d at 964; Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”). Hence they cannot support an adverse credibility determination.
Nevertheless, the IJ also noted two additional inconsistencies, both of which do go to the heart of Koussa’s claim. First, the IJ found it inconsistent that Koussa claimed in her written statement that July went slowly with many arrests, but she testified at the hearing that there were no further problems between the detention on June 3 and when she left for the United States. Second, the IJ found it inconsistent that Koussa’s passport bears an issue date of May 24, 1998, but Koussa testified that the passport-renewal application was filled out in response to the detention and mistreatment occurring from May 28 through June 1. However, Koussa claims, and the government does not contest, that Koussa was not confronted by the IJ or the government attorney about these or any of the other inconsistencies noted above.3 The government provides no supporting cases for its argument that either a blanket opportunity to amend written materials or representation by counsel at a hearing is sufficient under these circumstances to meet the requirement that Koussa be given a reasonable opportunity to offer an explanation of any perceived inconsistencies. Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.2009) (“The IJ must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.”) (internal quotation and citation omitted). We therefore reject the government’s contention that these inconsistencies are sufficient to support the adverse credibility determination.
The IJ separately concluded that it was questionable that (1) Nashid could renew the passport without Koussa; (2) Nashid could have obtained the passports the *261same day he asked for them; (3) Koussa could obtain a United States visa with no appointment and no appearance on June 4;4 and (4) Koussa did not seek medical treatment for her injury suffered during the detention. The IJ’s conclusions on these points are based on impermissible speculation. Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000) (“Speculation and conjecture cannot form the basis of an adverse credibility finding....”).
When, as here, the IJ’s adverse-credibility determination is not supported by substantial evidence, we may remand on an open record. See Soto-Olarte, 555 F.3d at 1095. There are significant inconsistencies between Koussá’s testimony and her supporting documentation that, had the IJ confronted Koussa with them, might support an adverse-credibility determination. We remand so that the BIA, through its immigration judge, may confront Koussa with the potential inconsistencies that we have said may be material and make its credibility determination in light of Koussa’s responses. Id. at 1096.
Nashid’s petition for review is DISMISSED; Koussa’s petition for review is GRANTED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Although Maged Nashid’s name is variously spelled in the briefs and record, we adopt the spelling used in his passport.
. The Real ID Act restricts our review of an IJ's credibility determination for applications filed after May 11, 2005, but Koussa’s asylum application was filed prior to that date. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005).
. The IJ did mention to Nashid at the hearing that Koussa's passport bore an issue date of May 24, 1998. Nashid's ability to explain the inconsistency, however, was impeded by the colloquy that ensued between the IJ and the attorneys, after which the IJ ended questioning. Given that discussion concerning the issue date of the passport was aborted, Nashid was not (and certainly Koussa was not) given a reasonable opportunity to explain the inconsistency. Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.2009).
. The IJ is incorrect that Koussa obtained the visa with “no appointment and no appearance.” Koussa testified that she went to the American Embassy “very early” on the day after the second detention, June 4, to obtain the visa.
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MEMORANDUM *
Shihao Guan, a native and citizen of China, petitions for review of the final order of removal denying his claims for withholding of removal and relief under the Convention Against Torture (CAT).1 We grant the petition and remand for a determination on an open record whether Guan is entitled to withholding of removal or CAT relief.
The immigration judge’s (IJ) adverse credibility determination was flawed from the outset by his reliance on an article in the California Lawyer, which was not part of the record, to note a trend of “bogus” asylum applications by Chinese applicants in the Los Angeles area. We cannot say that this reference did not infect the remainder of his reasoning about how Guan came by his passport and visa. See Lin v. Gonzales, 484 F.3d 1158, 1163 (9th Cir.2006) (“Without some evidence in the record, other than the IJ’s bare personal view, we have no way of knowing whether the IJ’s suspicions are simply conjecture or legitimate concerns bearing on the reliability of the document.... The reviewing court should not be in a position of speculating about the IJ’s speculations.”). Nor under our precedent is another reason for the adverse credibility determination — -that Guan failed to seek asylum at the embassy in China, or upon arrival at the airport, or when extending his visa, or thereafter, and renewed his Chinese passport in the meantime — acceptable when the IJ has not taken into account Guan’s explanation for why he did not do any of these things until he did seek asylum. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1106, 1107 (9th Cir.2006).
We therefore grant the petition for review and remand to the BIA for further proceedings on an open record. SotoOlarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009).
PETITION GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Guan does not seek review of the determination that his application for asylum is time-barred.
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BEA, Circuit Judge,
dissenting:
I disagree with the majority’s view that one silly reference to inadmissible evidence by the immigration judge (“IJ”) is like a drop of ink in clear water, spoiling the *263remainder of the IJ’s rationale with respect to his adverse credibility determination, no matter how well-reasoned. In fact, I think just the opposite: if grounds independent of the IJ’s inadmissible reference exist in the record, this court is bound to affirm those independent grounds with respect to the IJ’s adverse credibility finding against Guan.
The IJ cited several facts, entirely unrelated to the California Laioyer article, to support his adverse credibility finding against Guan: (1) Although Guan claimed persecution awaited him in China, Guan failed to seek asylum upon his arrival in the United States; (2) Guan later renewed his B-l visa, but failed to seek asylum at that time; and (3) Guan’s parents and his brother, who is also Christian, live peaceably in the house where Guan held Christian meetings in China. Each and all of these reasons provide substantial evidence upon which the IJ could disbelieve Guan’s testimony that he feared persecution should he return to China.
Moreover, I strongly disagree with the majority’s view that the “IJ has not taken into account Guan’s explanation for why he did not do any of these things until he did seek asylum.” Guan was asked why he did not “do these things.” Guan’s answer: “I felt the free air.” The IJ heard this “explanation,” which was no explanation at all, other than Guan thought he could stay in the United States forever without further ado about immigration procedures. But that could not have been the true explanation; Guan knew enough to renew his B-l visa through an attorney. Thus, even if the IJ did not take the explanation “into account,” the explanation did not add up, and would not change the accounting.
For the foregoing reasons, I respectfully dissent.
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MEMORANDUM **
Ricardo E. Eguizabal, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a particular conviction constitutes an aggravated felony, Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002), and we grant the petition for review.
Eguizabal’s conviction does not categorically support his removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for a crime of violence, because California Penal Code § 69 is not limited to the use or threat of force against the person or property of another. See 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16; Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir.2007). Moreover, because the state offense is missing this element of the generic offense, the modified categorical approach is inapplicable. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc).
We grant Eguizabal’s May 15, 2009 motion to supplement his opening brief.
PETITION FOR REVIEW GRANTED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Soon Hak Baek, his wife, Eun Joo Baek, and his daughter, In Hee Baek, natives and citizens of South Korea, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) order of removal and denial of a motion to continue. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam). We deny in part and dismiss in part the petition for review.
The IJ did not abuse his discretion in denying petitioners’ motion to continue because petitioners’ eligibility for relief was speculative and not immediately available. See id. at 1247.
We lack jurisdiction to consider petitioners’ contention that they are eligible for a waiver because this issue was not exhausted before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
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.
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MEMORANDUM *
Lorenzo Jones (“Jones”) appeals his conviction and 262-month sentence for be*256ing a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We affirm.
Viewed in the light most favorable to the prosecution, there was sufficient evidence that Jones jointly possessed the firearms with his passengers. Possession need not be exclusive, so long as each person knows of the object’s presence and has the intention and ability to control it. See United States v. Cain, 130 F.3d 381, 382 (9th Cir.1997); see also United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989) (“ ‘[T]o establish constructive possession, the government must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which contraband is concealed.’ ”) (quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986)).
In a recorded jail conversation, Jones told a friend that he knew one of the car’s occupants was “dirty in the car” and “had burners on him.” After initially stopping for police, who approached the van with weapons drawn, Jones told his friend he decided to run from the police to “give his homeboy room to bounce” and “do what he got to do.”
From these statements, a rational juror could conclude that Jones knew of the weapons in the car and intended to exercise dominion over them by driving the van away from police to facilitate their disposal. See also United States v. Chambers, 918 F.2d 1455, 1458 (9th Cir.1990) (finding that conduct by driver aiding disposal of contraband was probative of joint possession). Jones’s recorded statements distinguish this case from the numerous constructive possession cases on which he relies—in which circumstantial proof was insufficient—because here there was unusual direct evidence of knowledge and intent.1
The court did not err by instructing the jury that Jones’s presence in the car, by itself, was insufficient to support a finding of possession. Although the court did not use Jones’s suggested language, Jones was not entitled to a mere presence instruction of his own phrasing. United States v. Ferris, 719 F.2d 1405, 1407-08 (9th Cir.1983). Nor did the given instruction eliminate the requirement that Jones intended to exercise control of the weapons, an element which was correctly stated in the possession instruction.
Jones concedes that the district court did not err by failing to require the government to prove that his possession had a substantial effect on interstate commerce. See United States v. Younger, 398 F.3d 1179, 1193 (9th Cir.2005). His argument that the district court should have instructs ed the jury that he faced a mandatory fifteen-year sentence is likewise foreclosed by precedent. Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994); United States v. Frank, 956 F.2d 872, 879 (9th Cir.1991).
Jones argues the district court abused its discretion by responding to a jury question by referring the jury to the instructions already given. The jury did not identify an ambiguity in the instructions or confusion over a legal issue; rather, it appeared the jury was seeking advice on how the law applies to the facts of the *257case—something that is within the jury’s province—and the court acted reasonably in referring the jury back to its original instructions. See Arizona v. Johnson, 351 F.3d 988, 995 (9th Cir.2003); see also United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202 (9th Cir.2000) (noting that referring jury back to instructions avoids “possible error sometimes found in trying to elaborate on a given instruction”). Indeed, answering the particular question posed in this case could have been tantamount to a directed verdict. The trial court has considerable discretion in formulating a response to jury questions, United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir.2000), and it did not abuse that discretion here.
Nor did the district court abuse its discretion by declining to declare a mistrial because of the second juror’s misconduct. The court carefully examined all of the parties involved in the brief encounter and determined that the second juror, who essentially had only de minimis contact with the witness, could remain. See Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697-98 (9th Cir.2004) (factors to consider include length and nature of contact, evidence of actual impact and possibility of eliminating prejudice with limiting instruction); United States v. LaFleur, 971 F.2d 200, 206 (9th Cir.1991) (this court gives “substantial weight” to district court’s conclusion regarding the effect of juror misconduct). Moreover, because the second juror did not actually participate in the deliberations or verdict, Jones cannot demonstrate prejudice. United States v. Rosenthal, 454 F.3d 943, 949 (9th Cir.2006).
The district court did err by failing to obtain a written stipulation from Jones to proceed with eleven jurors, as required by Fed.R.Crim.P. 23(b)(2)(B). However, as we clarified in United States v. Perez, 116 F.3d 840 (9th Cir.1997) (en banc), unobjected-to errors are “forfeited” but reviewed for plain error. Id. at 845 (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Although the error was plain, we must also consider whether it affected Jones’s substantial rights, which in most cases means whether the error was prejudicial. Olano, 507 U.S. at 734, 113 S.Ct. 1770. Here, not only did Jones’s attorney represent that he had discussed the decision with Jones, who was willing to proceed with eleven jurors, but a recorded phone conversation similarly confirms that Jones knowingly and intelligently consented to an eleven-member jury. There is no indication his decision would have differed if the court had required a stipulation in writing, and we therefore conclude the court’s error did not affect Jones’s substantial rights.
The district court did not abuse its discretion by permitting limited gang testimony, as relevant to explain the genesis of the shoot-out that was inextricably intertwined with the van’s stop, see United States v. Mundi, 892 F.2d 817, 820 (9th Cir.1989), as well as to explain the relationship of the passengers in the van. The court also gave a limiting instruction as to the proper use of this evidence, which further minimized any prejudicial impact. See United States v. Easter, 66 F.3d 1018, 1021 (9th Cir.1995).
The use of Jones’s 1999 statement that he would run if caught by police with contraband was relevant to intent and not unduly prejudicial, especially in light of Jones’s own statement that he had fled to give his homeboy “room to bounce.” The court did not violate Fed.R.Evid. 106’s “rule of completeness” by admitting only some recorded jail conversations, because the additional conversations (or portions thereof) which Jones wanted to admit were not necessary to prevent the admitted por*258tions from being misleading or even relevant to the primary issues at trial.
We also affirm Jones’s sentence. Although the district court’s oral determination denying Jones a two-level reduction for acceptance of responsibility included both proper and improper factors, we may affirm on any ground supported by the record. See United States v. Oplinger, 150 F.3d 1061, 1069 (9th Cir.1998). The reduction is to be primarily based on pretrial conduct and statements by the defendant. U.S.S.G. § 3E1.1 Cmt. 2. Here, Jones did not willingly admit to the facts presented at trial or otherwise accept responsibility prior to trial. Instead, he inadvertently helped the government’s case with recorded jail statements, and the district court correctly surmised that Jones’s pretrial actions did not clearly reflect acceptance of responsibility.
Nor did the district court err by failing to apply a two-level reduction for minor participation. Because Jones was sentenced pursuant to the Armed Career Criminal Act, the only reduction available to him was for acceptance of responsibility. See United States v. George, 56 F.3d 1078, 1086 (9th Cir.1995); U.S.S.G. § 4B1.4(b)(3)(B).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided *256by Ninth Circuit Rule 36-3.
. Jones also argues that the facts of this case make him guilty of accessory after the fact rather than possession of a firearm. However, our task is not to consider the propriety of other crimes the government could have charged; rather, if conduct violates more than one statute, the government may elect the statute it wishes to charge. See United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir.1986).
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MEMORANDUM ***
Petitioners Ganit Micheil Gergies Koussa and her son, Maged Nashid,1 petition for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of their application for asylum and withholding of removal. The IJ denied relief after making an adverse-credibility determination. We conclude that the IJ’s adverse-credibility determination is not supported by substantial evidence. We therefore grant Koussa’s petition and remand on an open record. We dismiss Nashid’s petition for lack of jurisdiction in light of the BIA’s September 24, 2007, order to reopen and terminate his removal proceedings. See Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir.2002) (order).
Where, as here, the BIA adopts the IJ’s decision without issuing an opinion, it is the IJ’s decision that is reviewed as the final agency determination. Knezevic v. Ashcroft, 367 F.3d 1206, 1210 (9th Cir.2004). We review an adverse-credibility determination for substantial evidence. Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir.2007). Even if some factors relied on by the IJ are unsupported or irrelevant, we will uphold an adverse-credibility finding “so long as one of the identified grounds is supported by substantial evidence and goes to the heart of [the petitioner’s] claim of persecution.” Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004) (internal quotation and citation omitted).2
The IJ concluded that the events on which testimony was given by Koussa and her son, if they occurred as described by Petitioners, would establish persecution. However, the IJ made an adverse-credibility determination as to Koussa and her son on the basis of inconsistencies and actions that he did not find credible.
The IJ found it inconsistent (1) that Koussa alleged “in her affidavit that [her *260colleague] attempted to rape her” but she did not claim in her hearing testimony that she was raped; (2) that Koussa’s “written statement says she was detained three days, but her application says she was ‘almost detained’ ”; (B) that Koussa’s written statement does not contain the allegation made in her hearing testimony that two persons from the security force came to her home on June 3, took her for questioning, and beat her; (4) that Koussa claimed “the passport was obtained on Tuesday (June 3) and later the son stated he obtained both his and his mother’s passport on June 1”; and (5) that Koussa’s application for asylum “indicates that [Koussa] confronted her boss and was taken into custody on the 27th of May, whereas her testimony at the hearing was that she was taken in on the 28th of May.” After our review of the record, we conclude that these inconsistencies, most of which are substantially eliminated when viewed in the context of the entire record, do not go to the heart of Koussa’s claim and are minor discrepancies. See Li, 378 F.3d at 964; Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) (“Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant’s fear for his safety are not an adequate basis for an adverse credibility finding.”). Hence they cannot support an adverse credibility determination.
Nevertheless, the IJ also noted two additional inconsistencies, both of which do go to the heart of Koussa’s claim. First, the IJ found it inconsistent that Koussa claimed in her written statement that July went slowly with many arrests, but she testified at the hearing that there were no further problems between the detention on June 3 and when she left for the United States. Second, the IJ found it inconsistent that Koussa’s passport bears an issue date of May 24, 1998, but Koussa testified that the passport-renewal application was filled out in response to the detention and mistreatment occurring from May 28 through June 1. However, Koussa claims, and the government does not contest, that Koussa was not confronted by the IJ or the government attorney about these or any of the other inconsistencies noted above.3 The government provides no supporting cases for its argument that either a blanket opportunity to amend written materials or representation by counsel at a hearing is sufficient under these circumstances to meet the requirement that Koussa be given a reasonable opportunity to offer an explanation of any perceived inconsistencies. Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.2009) (“The IJ must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum.”) (internal quotation and citation omitted). We therefore reject the government’s contention that these inconsistencies are sufficient to support the adverse credibility determination.
The IJ separately concluded that it was questionable that (1) Nashid could renew the passport without Koussa; (2) Nashid could have obtained the passports the *261same day he asked for them; (3) Koussa could obtain a United States visa with no appointment and no appearance on June 4;4 and (4) Koussa did not seek medical treatment for her injury suffered during the detention. The IJ’s conclusions on these points are based on impermissible speculation. Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.2000) (“Speculation and conjecture cannot form the basis of an adverse credibility finding....”).
When, as here, the IJ’s adverse-credibility determination is not supported by substantial evidence, we may remand on an open record. See Soto-Olarte, 555 F.3d at 1095. There are significant inconsistencies between Koussá’s testimony and her supporting documentation that, had the IJ confronted Koussa with them, might support an adverse-credibility determination. We remand so that the BIA, through its immigration judge, may confront Koussa with the potential inconsistencies that we have said may be material and make its credibility determination in light of Koussa’s responses. Id. at 1096.
Nashid’s petition for review is DISMISSED; Koussa’s petition for review is GRANTED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Although Maged Nashid’s name is variously spelled in the briefs and record, we adopt the spelling used in his passport.
. The Real ID Act restricts our review of an IJ's credibility determination for applications filed after May 11, 2005, but Koussa’s asylum application was filed prior to that date. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005).
. The IJ did mention to Nashid at the hearing that Koussa's passport bore an issue date of May 24, 1998. Nashid's ability to explain the inconsistency, however, was impeded by the colloquy that ensued between the IJ and the attorneys, after which the IJ ended questioning. Given that discussion concerning the issue date of the passport was aborted, Nashid was not (and certainly Koussa was not) given a reasonable opportunity to explain the inconsistency. Soto-Olarte v. Holder, 555 F.3d 1089, 1092 (9th Cir.2009).
. The IJ is incorrect that Koussa obtained the visa with “no appointment and no appearance.” Koussa testified that she went to the American Embassy “very early” on the day after the second detention, June 4, to obtain the visa.
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MEMORANDUM *
Shihao Guan, a native and citizen of China, petitions for review of the final order of removal denying his claims for withholding of removal and relief under the Convention Against Torture (CAT).1 We grant the petition and remand for a determination on an open record whether Guan is entitled to withholding of removal or CAT relief.
The immigration judge’s (IJ) adverse credibility determination was flawed from the outset by his reliance on an article in the California Lawyer, which was not part of the record, to note a trend of “bogus” asylum applications by Chinese applicants in the Los Angeles area. We cannot say that this reference did not infect the remainder of his reasoning about how Guan came by his passport and visa. See Lin v. Gonzales, 484 F.3d 1158, 1163 (9th Cir.2006) (“Without some evidence in the record, other than the IJ’s bare personal view, we have no way of knowing whether the IJ’s suspicions are simply conjecture or legitimate concerns bearing on the reliability of the document.... The reviewing court should not be in a position of speculating about the IJ’s speculations.”). Nor under our precedent is another reason for the adverse credibility determination — -that Guan failed to seek asylum at the embassy in China, or upon arrival at the airport, or when extending his visa, or thereafter, and renewed his Chinese passport in the meantime — acceptable when the IJ has not taken into account Guan’s explanation for why he did not do any of these things until he did seek asylum. See, e.g., Singh v. Gonzales, 439 F.3d 1100, 1106, 1107 (9th Cir.2006).
We therefore grant the petition for review and remand to the BIA for further proceedings on an open record. SotoOlarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.2009).
PETITION GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Guan does not seek review of the determination that his application for asylum is time-barred.
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BEA, Circuit Judge,
dissenting:
I disagree with the majority’s view that one silly reference to inadmissible evidence by the immigration judge (“IJ”) is like a drop of ink in clear water, spoiling the *263remainder of the IJ’s rationale with respect to his adverse credibility determination, no matter how well-reasoned. In fact, I think just the opposite: if grounds independent of the IJ’s inadmissible reference exist in the record, this court is bound to affirm those independent grounds with respect to the IJ’s adverse credibility finding against Guan.
The IJ cited several facts, entirely unrelated to the California Laioyer article, to support his adverse credibility finding against Guan: (1) Although Guan claimed persecution awaited him in China, Guan failed to seek asylum upon his arrival in the United States; (2) Guan later renewed his B-l visa, but failed to seek asylum at that time; and (3) Guan’s parents and his brother, who is also Christian, live peaceably in the house where Guan held Christian meetings in China. Each and all of these reasons provide substantial evidence upon which the IJ could disbelieve Guan’s testimony that he feared persecution should he return to China.
Moreover, I strongly disagree with the majority’s view that the “IJ has not taken into account Guan’s explanation for why he did not do any of these things until he did seek asylum.” Guan was asked why he did not “do these things.” Guan’s answer: “I felt the free air.” The IJ heard this “explanation,” which was no explanation at all, other than Guan thought he could stay in the United States forever without further ado about immigration procedures. But that could not have been the true explanation; Guan knew enough to renew his B-l visa through an attorney. Thus, even if the IJ did not take the explanation “into account,” the explanation did not add up, and would not change the accounting.
For the foregoing reasons, I respectfully dissent.
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MEMORANDUM **
Ricardo E. Eguizabal, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a particular conviction constitutes an aggravated felony, Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002), and we grant the petition for review.
Eguizabal’s conviction does not categorically support his removability under 8 U.S.C. § 1227(a)(2)(A)(iii) for a crime of violence, because California Penal Code § 69 is not limited to the use or threat of force against the person or property of another. See 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16; Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th Cir.2007). Moreover, because the state offense is missing this element of the generic offense, the modified categorical approach is inapplicable. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir.2007) (en banc).
We grant Eguizabal’s May 15, 2009 motion to supplement his opening brief.
PETITION FOR REVIEW GRANTED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
David Fernando Sanchez-Hernandez appeals from the 30-month sentence imposed following his jury-trial conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Sanchez-Hernandez contends that the district court erred at sentencing by denying a two-level downward adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. The district court did not commit clear error in determining that Sanchez had not clearly demonstrated acceptance of responsibility for his offense. See United States v. Wilson, 392 F.3d 1055, 1061-63 (9th Cir.2004); United States v. Fellows, 157 F.3d 1197, 1202-03 (9th Cir.1998).
Sanchez-Hernandez also contends that the district court erred by basing its decision to apply an upward departure to his criminal history category on unreliable information, and that the result*266ing sentence is unreasonable. The record supports the district court’s finding that Sanchez-Hernandez’s original criminal history category substantially underrepresented the seriousness of his criminal history. See, e.g., United States v. Daychild, 357 F.3d 1082, 1106-07 (9th Cir.2004). Moreover, under the totality of the circumstances, the sentence is reasonable. See United States v. Ellsworth, 456 F.3d 1146, 1152-53 (9th Cir.2006); see also U.S.S.G. § 4A1.3(a)(2)(A).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated appeals, Michael F. Schulze appeals pro se from the district court’s orders: (1) denying his motion for reversal of his conviction and dismissal of the indictment; (2) denying his motion for disclosure of grand jury transcripts; and (3) reaffirming his sentence following a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Schulze contends that the district court erred by declining to reverse his conviction and dismiss his indictment because the government engaged in various forms of misconduct prior to and during his trial. We agree with the district court that Schulze waived his new arguments regarding government misconduct because he could have raised them in his earlier appeal, but did not do so. See United States v. Thornton, 511 F.3d 1221, 1229 (9th Cir.2008); United States v. Radmall, 340 F.3d 798, 801-02 (9th Cir.2003).
Schulze also contends that the district court erred by denying his motion for disclosure of grand jury transcripts. The district court did not abuse its discretion because Schulze did not demonstrate a “particularized need” for the transcripts. See United States v. Perez, 67 F.3d 1371, 1380-81 (9th Cir.1995), vacated in part, 116 F.3d 840 (9th Cir.1997) (en banc); see also United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986) (per curiam).
Finally, Schulze raises multiple challenges to the district court’s decision not to resentence him following a limited Ameline remand. These contentions lack merit. See Thornton, 511 F.3d at 1226-29; United States v. Combs, 470 F.3d 1294, 1296-97 (9th Cir.2006); see also United States v. Montgomery, 462 F.3d 1067, 1069-71 (9th Cir.2006).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Quanzong Jia, a native and citizen of the People’s Republic of China, 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 and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and de novo claims of due process violations, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because Jia’s implausible testimony concerning his submission of a corruption complaint to the local government goes to the heart of his claim that he was persecuted for protesting government corruption. See Singh v. Gonzales, *271439 F.3d 1100, 1110 (9th Cir.2006) (“IJ’s skepticism as to the plausibility of [a petitioner’s testimony] may be a proper basis for finding his testimony is inherently unbelievable if [the IJ’s] logical inferences are supported by substantial evidence.”); Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007) (upholding IJ’s implausibility finding). In the absence of credible testimony, petitioner failed to establish he is eligible for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
We reject petitioner’s claim that the IJ violated his due process rights because he received a full and fair hearing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring legal error and prejudice to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sergio Romero Zatarain and Susana Pena Rodriguez, spouses and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ order *272dismissing their appeal from an immigration judge’s (“IJ”) decision denying their motion for a continuance. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion the denial of a motion for a continuance, Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988), we deny the petition for review.
The IJ did not abuse his discretion in denying petitioners’ motion for a continuance where the hearing had been scheduled over a year in advance and petitioners’ counsel requested a continuance on account of a scheduling conflict one week before the hearing. See 8 C.F.R. § 1003.29 (IJ has authority to grant a continuance upon a showing of good cause); Baires, 856 F.2d at 91.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Sergio De Jesus Valenzuela Luna, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because the inconsistencies between Valenzuela Luna’s declaration and his testimony regarding his location when guerrillas cut his hand and the number of incidents of persecution he suffered, are material discrepancies that go to the heart of his claim. See id. at 742-43. In addition, substantial evidence supports the agency’s credibility determination based on an inconsistency between Valenzuela Luna’s testimony and his asylum interview statements regarding whether he was hospitalized for his injuries. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). In the absence of credible testimony, Valenzuela Luna’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Valenzuela Luna’s CAT claim is based on testimony the agency found not credible, and he points to no other evidence to show it is more likely than not he would be tortured if returned to Guatemala, his CAT claim fails. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*279ed by 9th Cir. R. 36-3.
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MEMORANDUM **
David Fernando Sanchez-Hernandez appeals from the 30-month sentence imposed following his jury-trial conviction for illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Sanchez-Hernandez contends that the district court erred at sentencing by denying a two-level downward adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. The district court did not commit clear error in determining that Sanchez had not clearly demonstrated acceptance of responsibility for his offense. See United States v. Wilson, 392 F.3d 1055, 1061-63 (9th Cir.2004); United States v. Fellows, 157 F.3d 1197, 1202-03 (9th Cir.1998).
Sanchez-Hernandez also contends that the district court erred by basing its decision to apply an upward departure to his criminal history category on unreliable information, and that the result*266ing sentence is unreasonable. The record supports the district court’s finding that Sanchez-Hernandez’s original criminal history category substantially underrepresented the seriousness of his criminal history. See, e.g., United States v. Daychild, 357 F.3d 1082, 1106-07 (9th Cir.2004). Moreover, under the totality of the circumstances, the sentence is reasonable. See United States v. Ellsworth, 456 F.3d 1146, 1152-53 (9th Cir.2006); see also U.S.S.G. § 4A1.3(a)(2)(A).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Balwinder Singh, a native and citizen of India, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the determinations of an immigration judge (“IJ”) that Singh is ineligible for asylum because his application is time-barred, and is ineligible for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and withholding of removal under the Convention Against Torture (“CAT”) because he engaged in terrorist related activities. This court has jurisdiction to review the BIA’s denial of asylum and withholding of removal on terrorist grounds. See Khan v. Holder, 584 F.3d 773, 780-81 (9th Cir.2009). Revised Section 1252(a)(2)(D) of Chapter 8 of the United States Code restores our jurisdiction to determine the scope and meaning of the statutory terrorism bar, and to review the BIA’s determination that a petitioner engaged in terrorist activity. Id.
The BIA did not err in determining that Singh engaged in terrorist related activity by providing material support to a terrorist group. It was thus correct in concluding that Singh was statutorily barred from obtaining relief in the form of asylum, withholding of removal under the INA, and withholding of removal under the Convention Against Torture (“CAT”). See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
Substantial evidence in the record supports the BIA’s determination that the Khalistan Commando Force (“KCF”) is a terrorist organization within the meaning of 8 U.S.C. § 1231(b)(3)(B)(iv) (2009). Further, Singh testified that he provided overnight accommodation and food to members of the Khalistan Commando Force every five to seven days during a one year period. [AR 764.]
Singh argues that he did not “knowingly” provide material support to terrorists when he assisted the members of the KCF, because his cognitive ability was limited by his fifth grade education and the electric shock therapy that he underwent in 1981 to treat a head injury. [AR 978.] He claims that these cognitive impairments prevented him from understanding that by feeding and sheltering his cousin and other members of the KCF, he was *268supporting individuals engaged in terrorist activity.
Singh testified, however, that he knew that the KCF were “militants” who “demand[ed] their rights with the help of arms,” [AR 801] that his uncle was forced to flee India because the police suspected he was hiding explosives for the KCF, [AR 756, 965] and that the KCF members he, himself, sheltered came to his house “secretly at night” because they were wanted by the police. [AR 765.] Singh’s written declaration and testimony constitute substantial evidence that he knew that the KCF was a terrorist organization, and a reasonable adjudicator would not be compelled to conclude otherwise. Because Singh is not eligible for asylum on terrorist grounds, he is also barred from obtaining withholding of removal under the INA or under CAT.
The BIA also did not err in determining that Singh was ineligible for deferral of removal under CAT. The BIA concluded that Singh had failed to prove that it was more probable than not that he would be tortured if he were to return to India. This conclusion was based on evidence including United States Department of State Country Reports on Human Rights Practices for India from 1996 [AR 928], 1999 [AR 840], and 2005 [see AR 5], and Singh’s own testimony about his individual circumstances. The State Department reports stated that the widespread abuse of Sikhs by the Indian government that had been present in the 1990s ceased to exist from 1996 to 2000, [AR 52] and that while the Indian government continued to arrest supporters of a Sikh state, it limited such arrests to prominent leaders of pro-Sikh groups. [M] Singh testified that he was not a member of any such group, let alone a prominent leader. [M] A reasonable adjudicator would not be compelled to draw a conclusion contrary to that reached by the BIA. See 8 U.S.C. § 1252(b)(4)(B) (2009).
DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
In these consolidated appeals, Michael F. Schulze appeals pro se from the district court’s orders: (1) denying his motion for reversal of his conviction and dismissal of the indictment; (2) denying his motion for disclosure of grand jury transcripts; and (3) reaffirming his sentence following a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Schulze contends that the district court erred by declining to reverse his conviction and dismiss his indictment because the government engaged in various forms of misconduct prior to and during his trial. We agree with the district court that Schulze waived his new arguments regarding government misconduct because he could have raised them in his earlier appeal, but did not do so. See United States v. Thornton, 511 F.3d 1221, 1229 (9th Cir.2008); United States v. Radmall, 340 F.3d 798, 801-02 (9th Cir.2003).
Schulze also contends that the district court erred by denying his motion for disclosure of grand jury transcripts. The district court did not abuse its discretion because Schulze did not demonstrate a “particularized need” for the transcripts. See United States v. Perez, 67 F.3d 1371, 1380-81 (9th Cir.1995), vacated in part, 116 F.3d 840 (9th Cir.1997) (en banc); see also United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986) (per curiam).
Finally, Schulze raises multiple challenges to the district court’s decision not to resentence him following a limited Ameline remand. These contentions lack merit. See Thornton, 511 F.3d at 1226-29; United States v. Combs, 470 F.3d 1294, 1296-97 (9th Cir.2006); see also United States v. Montgomery, 462 F.3d 1067, 1069-71 (9th Cir.2006).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Quanzong Jia, a native and citizen of the People’s Republic of China, 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 and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and de novo claims of due process violations, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination because Jia’s implausible testimony concerning his submission of a corruption complaint to the local government goes to the heart of his claim that he was persecuted for protesting government corruption. See Singh v. Gonzales, *271439 F.3d 1100, 1110 (9th Cir.2006) (“IJ’s skepticism as to the plausibility of [a petitioner’s testimony] may be a proper basis for finding his testimony is inherently unbelievable if [the IJ’s] logical inferences are supported by substantial evidence.”); Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007) (upholding IJ’s implausibility finding). In the absence of credible testimony, petitioner failed to establish he is eligible for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
We reject petitioner’s claim that the IJ violated his due process rights because he received a full and fair hearing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring legal error and prejudice to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jaime Gutierrez Siordia, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s (“IJ”) decision pretermitting his application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo constitutional questions and questions of law, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and we deny the petition for review.
The BIA did not err in determining that petitioner failed to establish eligibility for cancellation of removal because he was convicted of two crimes involving moral turpitude (“CIMTs”). See 8 U.S.C. § 1229b(b)(1)(C). Contrary to petitioner’s contentions, the “petty offense” exception does not apply because, in the inadmissibility context, CIMTs are not subject to the “single scheme” limitation. See 8 U.S.C. § 1182(a)(2)(A)(i)-(ii); compare 8 U.S.C. § 1227(a)(2)(A)(ii).
Petitioner’s due process claims regarding testimony about his convictions and the transcript of a master calendar hearing fail because he has not established prejudice. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000) (requiring prejudice to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Oscar Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ decision dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his motion to continue and ordering him removed. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008). We deny the petition for review.
The IJ did not abuse his discretion in denying Hernandez’s request for a continuance where the IJ had previously granted several continuances and correctly concluded that petitioner’s 1998 conviction barred him from any form of relief. See Sandoval-Luna, 526 F.3d at 1247.
We may not consider the documents attached to petitioner’s opening brief. See 8 U.S.C. § 1252(b)(4)(A).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ying Ji Shen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the IJ’s adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination in that Shen made a sworn statement to an immigration official through a Chinese language interpreter that she came to the United States to make money and had no fear of returning to China, whereas her application for asylum and withholding of removal were based upon her alleged fear of return. See Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004) (sworn port of entry interview statement supported adverse credibility determination where IJ reasonably could conclude the statement was a reliable impeachment source and there was a valid discrepancy between the statement and petitioner’s later testimony).
In the absence of credible testimony, Shen failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ashok Kumar Padan, native and citizen of India, petitions for review of the Board *277of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding because the inconsistencies between Padan’s testimony and asylum application regarding the physical harm he allegedly suffered and the threatening letters he received, and his internally inconsistent testimony regarding his position within his political party, all go to the heart of his claim. See id. Accordingly, Padan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Padan’s CAT claim is based on the same testimony the agency found not credible, and Padan does not point to any other evidence that shows it is more likely than not he would be tortured if returned to India, substantial evidence supports the agency’s denial of CAT relief. See id. at 1156-57. We reject Padan’s contention that the agency did not analyze his CAT claim properly.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Oscar Hernandez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ decision dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his motion to continue and ordering him removed. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008). We deny the petition for review.
The IJ did not abuse his discretion in denying Hernandez’s request for a continuance where the IJ had previously granted several continuances and correctly concluded that petitioner’s 1998 conviction barred him from any form of relief. See Sandoval-Luna, 526 F.3d at 1247.
We may not consider the documents attached to petitioner’s opening brief. See 8 U.S.C. § 1252(b)(4)(A).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ying Ji Shen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the IJ’s adverse credibility determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and deny the petition for review.
Substantial evidence supports the IJ’s adverse credibility determination in that Shen made a sworn statement to an immigration official through a Chinese language interpreter that she came to the United States to make money and had no fear of returning to China, whereas her application for asylum and withholding of removal were based upon her alleged fear of return. See Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004) (sworn port of entry interview statement supported adverse credibility determination where IJ reasonably could conclude the statement was a reliable impeachment source and there was a valid discrepancy between the statement and petitioner’s later testimony).
In the absence of credible testimony, Shen failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Ashok Kumar Padan, native and citizen of India, petitions for review of the Board *277of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding because the inconsistencies between Padan’s testimony and asylum application regarding the physical harm he allegedly suffered and the threatening letters he received, and his internally inconsistent testimony regarding his position within his political party, all go to the heart of his claim. See id. Accordingly, Padan’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Padan’s CAT claim is based on the same testimony the agency found not credible, and Padan does not point to any other evidence that shows it is more likely than not he would be tortured if returned to India, substantial evidence supports the agency’s denial of CAT relief. See id. at 1156-57. We reject Padan’s contention that the agency did not analyze his CAT claim properly.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marco Antonio Herrera-Sanchez, citizen and native of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
The BIA did not abuse its discretion when it denied Herrera-Sanchez’s motion to reopen and rejected his argument for equitable tolling. See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). First, the BIA correctly denied Herrera-Sanchez’s motion as untimely because it was filed almost twelve years after his final deportation order. See 8 U.S.C. § 1229a(c)(7). Second, equitable tolling is unavailable to Herrera-Sanchez because he did not establish prejudice from the alleged ineffective assistance of counsel. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.2003). Herrera-Sanchez’s underlying claim for relief is not plausible because his claim for concurrent adjustment of status and an 8 U.S.C. § 1182(c) waiver under Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) is speculative at best. See Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004); see 8 C.F.R. § 1003.2(c)(1).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Devon Mitchell was convicted of bank robbery, 18 U.S.C. § 2113(a), armed bank robbery, 18 U.S.C. § 2113(a), (d), and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). The district court sentenced him to 162 months for each robbery count, to be served concurrently, and 60 months for possession of the firearm, consecutive to the robbery counts. He appeals from his judgment of conviction and sentence. We affirm.
“The district court’s decision to admit or exclude evidence and the balancing of probative value against prejudicial effect are reviewed for abuse of discretion.” United States v. Murillo, 288 F.3d 1126, 1139 (9th Cir.2002). Of the evidence to which Mitchell now objected, most of these objections were waived for failure to argue the objections in his opening brief. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996). Mitchell did preserve his objection to Ulonda Monroe’s testimony that Mitchell had told her he served time in prison for armed robbery, and to Monroe’s testimony that she, Mitchell, and Shannon Scott had traveled, before the robberies, to Page, Arizona to sell drugs. However, the district court did not abuse *283its discretion by admitting this evidence because this testimony is relevant for purposes other than proving conduct in conformity with bad character. Fed.R.Evid. 404(b). The evidence makes it more likely that Mitchell aided and abetted the crimes because it shows that both Monroe and Scott could rely on their previous crime partner for instruction and planning the bank robberies, and that Mitchell had the credibility to recruit them.
Even if the court erred by admitting testimony that Mitchell told Monroe that he went to prison for armed robbery and that Monroe and Scott traveled to Page, Arizona with Mitchell to sell drugs, the error was harmless. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004) (sustaining conviction despite erroneous admission of evidence unless, more probably than not, “the error affected the verdict”). Significant evidence linked Mitchell to the bank robberies. Mitchell recruited Monroe and Scott, instructed them, drove them to and from each bank, and wrote the demand notes that the women used in the bank robberies. We cannot find that the purported errors affected the verdict.
Mitchell asserts the court erred by refusing to hold a Daubert1 hearing prior to trial, and by allowing Marguerite McHenry, the government’s expert forensic document witness, to testify that she believed Mitchell authored the demand note recovered from the Compass Bank robbery. The court’s decision to admit expert testimony is reviewed for an abuse of discretion. United States v. Calderon-Segura, 512 F.3d 1104, 1109 (9th Cir.2008). “This includes not only the court’s ultimate admissibility determination under Daubert and Rule 702, but also its decisions regarding the type of proceedings required to conduct the gate-keeping inquiry in a particular case.” Id. The court is not required to hold a separate Daubert hearing, so long as it makes an explicit finding of reliability. United States v. Jawara, 474 F.3d 565, 582-83 (9th Cir.2007). Failure to make the explicit finding is harmless where the expert’s qualifications and experience, and the relevance and value of the testimony to the jury, satisfy the requirements. Id. at 583.
Extensive pre-trial briefing and argument informed the court of McHenry’s qualifications and experience, which also were presented to the jury. McHenry’s testimony of handwriting analysis procedures satisfied the Daubert reliability criteria. See, e.g., United States v. Prime, 431 F.3d 1147, 1152-54 (9th Cir.2005). Furthermore, experts who the court finds properly qualified may testify “in the form of an opinion.” Fed.R.Evid. 702. The court did not abuse its discretion by failing to hold a separate Daubert hearing or by admitting McHenry’s opinion testimony that Mitchell wrote the demand note; the court’s failure to make an explicit finding of reliability was harmless.
This court reviews “de novo whether a jury instruction misstates an element of a crime,” but reviews “for abuse of discretion a district court’s formulation of an instruction.” United States v. Peterson, 538 F.3d 1064, 1070 (9th Cir.2008). The same standards apply when considering supplemental instructions responding to a jury question. United States v. Castillo, 866 F.2d 1071, 1085 (9th Cir.1989).
The jury was not properly instructed on the aggravating element of count three, distinguishing armed bank robbery *284from bank robbery.2 Failure to include an essential element of the crime in the jury instructions constitutes reversible error unless “it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’ ” United States v. Thongsy, 577 F.3d 1036, 1043 (9th Cir.2009) (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Mitchell was aware Monroe was given a gun prior to the bank robbery; he saw her place it in her purse and walk into the bank; and he had written the demand note which stated Monroe had a gun. A rational jury could find that Mitchell intended to aid and abet the use of the gun during the robbery, and that the bank teller’s life was put in jeopardy by the use of a dangerous weapon. United States v. Jones, 84 F.3d 1206, 1211 (9th Cir.1996). The court’s failure to include an essential element of the crime in the instructions was harmless.
Mitchell also asserts the court erred in its instruction as to the lesser included offense of bank robbery, in count three. Although somewhat confusing, the court’s wording instructed the jury exactly as Mitchell had requested. The court did not abuse its discretion when it crafted this instruction.
The court’s instruction in count four, possession of a firearm, incorrectly mixed the two types of conduct constituting the crime. Thongsy, 577 F.3d at 1042-43. “[A]ny person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,” violates the statute. 18 U.S.C. § 924(c)(1)(A) (2006) (emphasis added). The jury was instructed to find Mitchell guilty if Monroe “possessed or carried the firearm during and in relation to the crime of armed bank robbery.” The error was harmless because the evidence showed Monroe carried the gun during and in relation to the robbery and that she possessed the gun in furtherance of the robbery. A rational jury would have convicted Mitchell absent the error.
During deliberations the jury sought clarification of whether it had to find that Mitchell drove Monroe or Scott to a bank in order to convict on each count of bank robbery or simply agree that he aided and abetted. The court instructed the jury that it could “enter a verdict as to Counts 2-6 unanimously finding beyond a reasonable doubt, that defendant aided or abetted the robberies or attempted robbery.” The court did not abuse its discretion in giving that instruction because “only the essential elements of the charge need to be proven.” United States v. Pang, 362 F.3d 1187, 1194 (9th Cir.2004). Driving is not an element of bank robbery, see 18 U.S.C. § 2113(a) (2006), and the jury is not required to agree on the specific acts that constitute aiding and abetting, United States v. Kim, 196 F.3d 1079, 1083 (9th Cir.1999).
Mitchell contends the district court erred when it denied his motion for judgment of acquittal because there was insufficient evidence to support a conviction for armed bank robbery and possession of a firearm. When a defendant moves for judgment of acquittal at the close of the government’s case in chief, but fails to renew the motion at the close of all evidence, this Court reviews the denial of the motion for plain error. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200-01 (9th Cir.2000). There is sufficient evi*285dence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), overruled on other grounds by Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, the “uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face.” United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993).
Sufficient evidence supports each of Mitchell’s convictions. Neither Monroe’s nor Scott’s testimony was incredible or insubstantial on its face, and their testimony was corroborated by the handwriting analysis of the demand note and the rental car and hotel receipts. Mitchell has failed to show plain error in the court’s denial of his motion for acquittal or a manifest miscarriage of justice in his convictions.
Mitchell asserts the court erred at sentencing by adding enhancements, adding a criminal history point, and failing to grant a downward departure. “We review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Guidelines to the facts for abuse of discretion, and the district court’s factual findings for clear error.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008). Although the Guidelines are no longer mandatory, see United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court must consider them when formulating a sentence, United States v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir.2006).
It was not clear error for the district court to find, by a preponderance of the evidence, that Mitchell was an organizer or leader of the crime that underlies the conviction, and to add a two-level enhancement for each count of bank robbery. See U.S. Sentencing Guidelines Manual § 3Bl.l(c) (2008) [hereinafter U.S.S.G.]. There was sufficient evidence that Mitchell exerted “some degree of control or organizational authority” over Monroe and Scott. United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir.1990).
Nor did the district court err by adding a criminal history point for Mitchell’s conviction for possession of marijuana in Arizona state court. The marijuana was found in Mitchell’s pocket when he was arrested at Scott’s apartment shortly after Monroe’s arrest in the same apartment. A prior sentence is included in the criminal history calculation “if it was for conduct other than conduct that was part of the instant offense,” meaning “conduct that is [not] relevant conduct to the instant offense.” U.S.S.G. § 4A1.2 cmt. n. 1 (2008). Relevant conduct is that which occurred “during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § lB1.3(a)(l) (2008). Mitchell’s possession of marijuana was not way related to the bank robberies. The temporal link between the crimes is insufficient to constitute relevant conduct. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1172 (9th Cir.2009).
Finally, the court did not err by refusing to grant a downward departure in sentencing. The departure scheme has essentially been replaced by “the requirement that judges impose a reasonable sentence.” United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006). “We review the substantive reasonableness of a sentence for abuse of discretion,” Armstead, 552 F.3d at 776, considering the factors set forth in 18 U.S.C. § 3553 (2006), United States v. Mix, 457 F.3d 906, 911 (9th Cir.2006). *286“[A] correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” United States v. Carty, 520 F.3d 984, 988 (9th Cir.2008), cert. denied, - U.S. -, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008). The court imposed the maximum sentence recommended by the guidelines. That was not an abuse of discretion.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Armed bank robbery occurs when, in addition to bank robbery, the defendant “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.” 18 U.S.C. § 2113(d) (2006).
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MEMORANDUM **
In these consolidated petitions for review, Eduardo Domingo Benedito and Yolanda Cirilo Benedito, husband and wife and natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing their appeals from an immigration judge’s (“IJ”) decision denying their applications for cancellation of removal, and the BIA’s order denying them motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, including claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). In No. 06-70943, we deny in part and dismiss in part the petition for review. In No. 06-72036, we deny the petition for review.
The agency did not err in requiring evidence in support of petitioners’ claim that their United States citizen daughter would remain in the United States if petitioners were removed to the Philippines. See Perez v. INS, 96 F.3d 390, 393 (9th Cir.1996). It follows that petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
We lack jurisdiction to review the agency’s discretionary determination that petitioners did not demonstrate “exceptional and extremely unusual hardship.” See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Because the hardship issue is dispositive, see 8 U.S.C. § 1229b(b)(l)(D), we do not reach petitioners’ contentions challenging the IJ’s denial of cancellation of removal as a matter of discretion.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen where petitioners did not establish prima facie eligibility for adjustment of status. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir.2006) (prima facie eligibility is established “where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied”).
No. 06-70943: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 06-72036: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Abd El Aziz Fahmy Minssy, and his family, natives and citizens of Egypt, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s October 4, 2005, order. See 8 C.F.R. § 1003.2(b)(1).
We lack jurisdiction to consider petitioners’ contention that their former counsel Gary Silbiger was ineffective because petitioners failed to exhaust this contention before the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000)
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.
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MEMORANDUM **
Jose Francisco Diaz Ponce and Celia Diaz Perez, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations based on ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen because petitioners presented insufficient evidence to establish prejudice. See Rojas-*290Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
In light of our disposition, we do not reach petitioners’ remaining contentions.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Devon Mitchell was convicted of bank robbery, 18 U.S.C. § 2113(a), armed bank robbery, 18 U.S.C. § 2113(a), (d), and possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c). The district court sentenced him to 162 months for each robbery count, to be served concurrently, and 60 months for possession of the firearm, consecutive to the robbery counts. He appeals from his judgment of conviction and sentence. We affirm.
“The district court’s decision to admit or exclude evidence and the balancing of probative value against prejudicial effect are reviewed for abuse of discretion.” United States v. Murillo, 288 F.3d 1126, 1139 (9th Cir.2002). Of the evidence to which Mitchell now objected, most of these objections were waived for failure to argue the objections in his opening brief. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir.1996). Mitchell did preserve his objection to Ulonda Monroe’s testimony that Mitchell had told her he served time in prison for armed robbery, and to Monroe’s testimony that she, Mitchell, and Shannon Scott had traveled, before the robberies, to Page, Arizona to sell drugs. However, the district court did not abuse *283its discretion by admitting this evidence because this testimony is relevant for purposes other than proving conduct in conformity with bad character. Fed.R.Evid. 404(b). The evidence makes it more likely that Mitchell aided and abetted the crimes because it shows that both Monroe and Scott could rely on their previous crime partner for instruction and planning the bank robberies, and that Mitchell had the credibility to recruit them.
Even if the court erred by admitting testimony that Mitchell told Monroe that he went to prison for armed robbery and that Monroe and Scott traveled to Page, Arizona with Mitchell to sell drugs, the error was harmless. See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir.2004) (sustaining conviction despite erroneous admission of evidence unless, more probably than not, “the error affected the verdict”). Significant evidence linked Mitchell to the bank robberies. Mitchell recruited Monroe and Scott, instructed them, drove them to and from each bank, and wrote the demand notes that the women used in the bank robberies. We cannot find that the purported errors affected the verdict.
Mitchell asserts the court erred by refusing to hold a Daubert1 hearing prior to trial, and by allowing Marguerite McHenry, the government’s expert forensic document witness, to testify that she believed Mitchell authored the demand note recovered from the Compass Bank robbery. The court’s decision to admit expert testimony is reviewed for an abuse of discretion. United States v. Calderon-Segura, 512 F.3d 1104, 1109 (9th Cir.2008). “This includes not only the court’s ultimate admissibility determination under Daubert and Rule 702, but also its decisions regarding the type of proceedings required to conduct the gate-keeping inquiry in a particular case.” Id. The court is not required to hold a separate Daubert hearing, so long as it makes an explicit finding of reliability. United States v. Jawara, 474 F.3d 565, 582-83 (9th Cir.2007). Failure to make the explicit finding is harmless where the expert’s qualifications and experience, and the relevance and value of the testimony to the jury, satisfy the requirements. Id. at 583.
Extensive pre-trial briefing and argument informed the court of McHenry’s qualifications and experience, which also were presented to the jury. McHenry’s testimony of handwriting analysis procedures satisfied the Daubert reliability criteria. See, e.g., United States v. Prime, 431 F.3d 1147, 1152-54 (9th Cir.2005). Furthermore, experts who the court finds properly qualified may testify “in the form of an opinion.” Fed.R.Evid. 702. The court did not abuse its discretion by failing to hold a separate Daubert hearing or by admitting McHenry’s opinion testimony that Mitchell wrote the demand note; the court’s failure to make an explicit finding of reliability was harmless.
This court reviews “de novo whether a jury instruction misstates an element of a crime,” but reviews “for abuse of discretion a district court’s formulation of an instruction.” United States v. Peterson, 538 F.3d 1064, 1070 (9th Cir.2008). The same standards apply when considering supplemental instructions responding to a jury question. United States v. Castillo, 866 F.2d 1071, 1085 (9th Cir.1989).
The jury was not properly instructed on the aggravating element of count three, distinguishing armed bank robbery *284from bank robbery.2 Failure to include an essential element of the crime in the jury instructions constitutes reversible error unless “it is ‘clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.’ ” United States v. Thongsy, 577 F.3d 1036, 1043 (9th Cir.2009) (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Mitchell was aware Monroe was given a gun prior to the bank robbery; he saw her place it in her purse and walk into the bank; and he had written the demand note which stated Monroe had a gun. A rational jury could find that Mitchell intended to aid and abet the use of the gun during the robbery, and that the bank teller’s life was put in jeopardy by the use of a dangerous weapon. United States v. Jones, 84 F.3d 1206, 1211 (9th Cir.1996). The court’s failure to include an essential element of the crime in the instructions was harmless.
Mitchell also asserts the court erred in its instruction as to the lesser included offense of bank robbery, in count three. Although somewhat confusing, the court’s wording instructed the jury exactly as Mitchell had requested. The court did not abuse its discretion when it crafted this instruction.
The court’s instruction in count four, possession of a firearm, incorrectly mixed the two types of conduct constituting the crime. Thongsy, 577 F.3d at 1042-43. “[A]ny person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm,” violates the statute. 18 U.S.C. § 924(c)(1)(A) (2006) (emphasis added). The jury was instructed to find Mitchell guilty if Monroe “possessed or carried the firearm during and in relation to the crime of armed bank robbery.” The error was harmless because the evidence showed Monroe carried the gun during and in relation to the robbery and that she possessed the gun in furtherance of the robbery. A rational jury would have convicted Mitchell absent the error.
During deliberations the jury sought clarification of whether it had to find that Mitchell drove Monroe or Scott to a bank in order to convict on each count of bank robbery or simply agree that he aided and abetted. The court instructed the jury that it could “enter a verdict as to Counts 2-6 unanimously finding beyond a reasonable doubt, that defendant aided or abetted the robberies or attempted robbery.” The court did not abuse its discretion in giving that instruction because “only the essential elements of the charge need to be proven.” United States v. Pang, 362 F.3d 1187, 1194 (9th Cir.2004). Driving is not an element of bank robbery, see 18 U.S.C. § 2113(a) (2006), and the jury is not required to agree on the specific acts that constitute aiding and abetting, United States v. Kim, 196 F.3d 1079, 1083 (9th Cir.1999).
Mitchell contends the district court erred when it denied his motion for judgment of acquittal because there was insufficient evidence to support a conviction for armed bank robbery and possession of a firearm. When a defendant moves for judgment of acquittal at the close of the government’s case in chief, but fails to renew the motion at the close of all evidence, this Court reviews the denial of the motion for plain error. United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1200-01 (9th Cir.2000). There is sufficient evi*285dence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), overruled on other grounds by Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, the “uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face.” United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.1993).
Sufficient evidence supports each of Mitchell’s convictions. Neither Monroe’s nor Scott’s testimony was incredible or insubstantial on its face, and their testimony was corroborated by the handwriting analysis of the demand note and the rental car and hotel receipts. Mitchell has failed to show plain error in the court’s denial of his motion for acquittal or a manifest miscarriage of justice in his convictions.
Mitchell asserts the court erred at sentencing by adding enhancements, adding a criminal history point, and failing to grant a downward departure. “We review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Guidelines to the facts for abuse of discretion, and the district court’s factual findings for clear error.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008). Although the Guidelines are no longer mandatory, see United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court must consider them when formulating a sentence, United States v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir.2006).
It was not clear error for the district court to find, by a preponderance of the evidence, that Mitchell was an organizer or leader of the crime that underlies the conviction, and to add a two-level enhancement for each count of bank robbery. See U.S. Sentencing Guidelines Manual § 3Bl.l(c) (2008) [hereinafter U.S.S.G.]. There was sufficient evidence that Mitchell exerted “some degree of control or organizational authority” over Monroe and Scott. United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir.1990).
Nor did the district court err by adding a criminal history point for Mitchell’s conviction for possession of marijuana in Arizona state court. The marijuana was found in Mitchell’s pocket when he was arrested at Scott’s apartment shortly after Monroe’s arrest in the same apartment. A prior sentence is included in the criminal history calculation “if it was for conduct other than conduct that was part of the instant offense,” meaning “conduct that is [not] relevant conduct to the instant offense.” U.S.S.G. § 4A1.2 cmt. n. 1 (2008). Relevant conduct is that which occurred “during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § lB1.3(a)(l) (2008). Mitchell’s possession of marijuana was not way related to the bank robberies. The temporal link between the crimes is insufficient to constitute relevant conduct. See United States v. Cruz-Gramajo, 570 F.3d 1162, 1172 (9th Cir.2009).
Finally, the court did not err by refusing to grant a downward departure in sentencing. The departure scheme has essentially been replaced by “the requirement that judges impose a reasonable sentence.” United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.2006). “We review the substantive reasonableness of a sentence for abuse of discretion,” Armstead, 552 F.3d at 776, considering the factors set forth in 18 U.S.C. § 3553 (2006), United States v. Mix, 457 F.3d 906, 911 (9th Cir.2006). *286“[A] correctly calculated Guidelines sentence will normally not be found unreasonable on appeal.” United States v. Carty, 520 F.3d 984, 988 (9th Cir.2008), cert. denied, - U.S. -, 128 S.Ct. 2491, 171 L.Ed.2d 780 (2008). The court imposed the maximum sentence recommended by the guidelines. That was not an abuse of discretion.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Armed bank robbery occurs when, in addition to bank robbery, the defendant “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.” 18 U.S.C. § 2113(d) (2006).
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MEMORANDUM **
In these consolidated petitions for review, Eduardo Domingo Benedito and Yolanda Cirilo Benedito, husband and wife and natives and citizens of the Philippines, petition for review of the Board of Immigration Appeals’ (“BIA”) orders dismissing their appeals from an immigration judge’s (“IJ”) decision denying their applications for cancellation of removal, and the BIA’s order denying them motion to reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, including claims of due process violations, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003), and review for abuse of discretion the denial of a motion to reopen, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). In No. 06-70943, we deny in part and dismiss in part the petition for review. In No. 06-72036, we deny the petition for review.
The agency did not err in requiring evidence in support of petitioners’ claim that their United States citizen daughter would remain in the United States if petitioners were removed to the Philippines. See Perez v. INS, 96 F.3d 390, 393 (9th Cir.1996). It follows that petitioners’ due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
We lack jurisdiction to review the agency’s discretionary determination that petitioners did not demonstrate “exceptional and extremely unusual hardship.” See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). Because the hardship issue is dispositive, see 8 U.S.C. § 1229b(b)(l)(D), we do not reach petitioners’ contentions challenging the IJ’s denial of cancellation of removal as a matter of discretion.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen where petitioners did not establish prima facie eligibility for adjustment of status. See Mendez-Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir.2006) (prima facie eligibility is established “where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied”).
No. 06-70943: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 06-72036: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Abd El Aziz Fahmy Minssy, and his family, natives and citizens of Egypt, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and we deny in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s October 4, 2005, order. See 8 C.F.R. § 1003.2(b)(1).
We lack jurisdiction to consider petitioners’ contention that their former counsel Gary Silbiger was ineffective because petitioners failed to exhaust this contention before the BIA. See Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000)
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.
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MEMORANDUM **
Jose Francisco Diaz Ponce and Celia Diaz Perez, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reopen based on ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and de novo claims of due process violations based on ineffective assistance of counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.
The BIA did not abuse its discretion in denying petitioners’ motion to reopen because petitioners presented insufficient evidence to establish prejudice. See Rojas-*290Garcia v. Ashcroft, 339 F.3d 814, 826 (9th Cir.2003) (to prevail on an ineffective assistance of counsel claim a petitioner must demonstrate prejudice).
In light of our disposition, we do not reach petitioners’ remaining contentions.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mansoor Shahbuddin, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s *291(“IJ”) decision denying Shahbuddin’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction to review this case under 8 U.S.C. § 1252. We review for substantial evidence an adverse credibility determination. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We deny the petition for review.
Shahbuddin did not challenge the BIA’s finding that his application for asylum was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).
Substantial evidence supports the IJ’s and BIA’s adverse credibility determination because Shahbuddin’s asylum application is materially inconsistent with his declaration and testimony regarding possible incidents of past persecution and his membership in the Shi’a Scouts. Shahbuddin failed to provide a reasonable, explanation for these inconsistencies, and the inconsistencies go to the heart of his claim. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). In the absence of credible testimony, Shahbuddin failed to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Shahbuddin’s CAT claim is based on the same evidence that the IJ and BIA found not credible, and he points to no further evidence to show it is more likely than not he would be tortured if returned to Pakistan, his CAT claim fails. See id. at 1157.
PETITION FOR REVIEW DENIED,
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
PER CURIAM.
ORDER
Eartha P. Johnson moves for reconsideration of the court’s previous rejection of her petition for review.
The Merit Systems Protection Board issued its final order on November 24, 2008. Johnson received a copy of the Board’s order on November 29, 2008. Johnson’s petition was received by this court on April 10, 2009, more than four months after Johnson received the Board’s final order.
Our review of a Board decision or order is governed by 5 U.S.C. § 7703(b)(1), which provides that “Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the board.” This filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dep’t of Transportation, 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement that cannot be waived).
Because Johnson’s petition was not received within 60 days of the date she received the Board’s decision, we must dismiss her petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) Johnson’s petition is dismissed.
(2) Ml sides shall bear their own costs.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472115/
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*579
ORDER
PER CURIAM.
Pavel Maslyukov and the Director of the United States Patent and Trademark Office each respond to the court’s March 20, 2009 order directing Maslyukov to show cause why his appeal should not be dismissed as untimely. Maslyukov also moves for a 14-day extension of time to file his brief.
On September 17, 2008, 2008 WL 4354116, the United States Patent Office, Trademark Trial and Appeal Board issued its decision denying registration to Maslyukov’s application to register the mark HAIG for whisky. Maslyukov timely filed a request for reconsideration from that decision on September 29, 2008. See 37 C.F.R. § 2.144 (Any request for reconsideration must be filed within one month from the date of the decision). On October 30, 2008, the Board denied his request for reconsideration. On December 2, 2008, Maslyukov filed a second request for reconsideration. On December 16, 2008, the Board denied his request because “[t]here is no provision in the Trademark Rules for filing a second request for reconsideration.”
On January 21, 2009, Maslyukov filed an appeal seeking review by this court. The appeal was filed more than 83 days after the Board’s denial of his first request for reconsideration. The Director argues that Maslyukov’s appeal is untimely and that without the appellant having requested an extension of time from the Board, this court is without jurisdiction to review this appeal. See 37 C.F.R. § 2.144 (“Such time may be extended by the Trademark Trial Appeal Board upon a showing of sufficient cause.”).
Under 37 C.F.R. § 2.145(d), the time for filing the appeal to this court is two months from the date of the decision of the Board. See also 35 U.S.C. § 1071(a)(2) (appeal must be filed “within such time after the date of the decision from which the appeal is taken as the Director prescribes, but in no case less than 60 days.”). Section 2.145(d) further provides that in the event of a timely request for reconsideration, the time for filing an appeal “shall expire two months after action on the request.” 37 C.F.R. § 2.145(d).
Maslyukov argues that his appeal was timely because his second request for reconsideration tolled the time to file his appeal. We disagree. “Successive motions periods, which would encourage piecemeal attack on a judgment and delay appeals, are not authorized.” Kraft, Inc. v. U.S., 85 F.3d 602, 605 (Fed.Cir.1996) (internal citation omitted). In Kraft, this court held under similar circumstances that a second request for reconsideration in trial court cases may not toll the time to file an appeal unless the first order granted the initial reconsideration request and disturbed or revised a legal right or obligation. Id. at 606.
Here, it is undisputed that the Board’s first decision on the initial request for reconsideration did not grant his request for reconsideration and did not disturb or revise any legal right or obligation. The second decision advised Maslyukov that a second request for reconsideration is not permitted and that his time to appeal the Board’s decision ran from the date of the decision denying his first request for reconsideration. It is further undisputed that Maslyukov failed to file his notice of appeal within two months from the date of the Board’s decision disposing of his initial request for reconsideration. The timely filing of his notice of appeal in a civil case is a jurisdictional requirement that cannot be waived. Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Because Maslyukov failed to timely file his appeal and failed to request or obtain an extension of time to file his appeal, we must dismiss his appeal as untimely.
*580Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) All sides shall bear their own costs.
(3) Maslyukov’s motion for an extension of time is deemed moot.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472118/
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ON MOTION
ORDER
Upon consideration of the United States’ motion to withdraw its appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Any other pending motions are moot.
(3) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472119/
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ON MOTION
MAYER, Circuit Judge.
ORDER
Bard Peripheral Vascular Inc., David Goldfarb, M.D., and C.R. Bard Inc. (“Bard”) move to dismiss W.L. Gore & Associates, Inc.’s (“Gore”) appeal, 2009-1345, for lack of jurisdiction. Gore opposes. Bard replies.
Bard filed an action against Gore in the United States District Court for the District of Arizona for patent infringement. After a trial, a jury found that Gore had willfully infringed Bard’s patent, rejected Gore’s invalidity argument, and awarded Bard compensatory damages. The district *581court entered judgment on July 30, 2008. Thereafter, both parties filed various post-judgment motions.
On March 31, 2009, 2009 WL 886514, the district court resolved a number of the pending post-judgment motions. Specifically, the district court granted Bard’s motions for prejudgment interest and supplemental damages, and denied Bard’s motion to permanently enjoin Gore from infringing its patent, but granted Bard’s alternative request for a compulsory license agreement for Gore’s future infringement. Proceedings to determine the terms of a license agreement to compensate Bard for Gore’s future infringement are ongoing. Subsequently, Bard appealed the district court’s March 31, 2009 order.
Bard asserts that Gore’s appeal of the March 31 order is premature because the proceedings to determine the particulars of the license are pending. Gore argues that its interlocutory appeal is permitted pursuant to 28 U.S.C. § 1292(c)(2) because the district court’s judgment is final and the continuing license agreement proceedings fall within the statute’s “accounting” exception. (“The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction ... of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable ... and is final except for an accounting.”)
Because proceedings concerning the license are still pending before the district court, we deem the better course is to dismiss the appeal as premature. See Special Devices, Inc. v. OEA Inc., 269 F.3d 1340, 1343 n. 2 (Fed.Cir.2001) (“ ‘Accounting,’ as used in [§ 1292(c)(2) ], refers to infringement damages pursuant to 35 U.S.C. § 284.”).
Accordingly,
IT IS ORDERED THAT:
(1) Bard’s motion to dismiss appeal no.2009-1345 is granted.
(2) Each side shall bear its own costs for 2009-1345.
(3) Bard’s brief in 2009-1359 is due within 30 days of the date of filing of this order.
(4) The revised official caption for 2009-1359 is reflected above.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472121/
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ON PETITION FOR WRIT OF MANDAMUS
PROST, Circuit Judge.
ORDER
Google, Inc. moves without opposition to withdraw its petition for a writ of mandamus and to vacate the July 10, 2009 order of the United States District Court for the *582Eastern District of Texas denying petitioners’ motion to transfer venue. Google also indicates that Yahoo! Inc. is no longer participating in the case due to settlement.
Although we grant the motion to withdraw the petition for a writ of mandamus, we deem the better, course is to require that the parties first move in the district court if they seek vacatur of the district court’s order. See U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (mootness by reason of settlement does not necessarily justify vacatur of a judgment under review; court of appeals may instead require that the matter be presented to the district court for consideration).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to withdraw the petition is granted.
(2) The motion to vacate the district court’s order regarding transfer is denied without prejudice to the parties requesting such relief from the district court.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472124/
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ON MOTION
PROST, Circuit Judge.
ORDER
National Oilwell Vareo, L.P. (Vareo) moves to dismiss 2009-1397, arguing that the United States District Court for the District of Colorado improperly directed entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Pason Systems USA Corp. (Pason) opposes.
Vareo brought this patent infringement suit against Pason seeking compensatory damages and permanent injunctive relief. Pason’s answer included, inter alia, both an affirmative defense and a counterclaim of unenforceability due to inequitable conduct. The district court bifurcated the inequitable conduct issues and held a jury trial on infringement and invalidity. After the trial, the jury rendered a verdict finding that the patent was infringed and not invalid and that Vareo was entitled to $14,000,000 in damages.
On April 30, 2009, the district court sua sponte entered an order issuing its final judgment on the infringement claims pursuant to Rule 54(b). Although the inequi*583table conduct defense had not been decided, the district court determined that there was no just reason to delay entry of final judgment. Vareo now moves to dismiss that appeal.
Pursuant to Rule 54(b):
When an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to fewer than all claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however, designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.
In order for Rule 54(b) to apply, the judgment must be final with respect to one or more claims. A judgment is not final for Rule 54(b) purposes unless it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). When a judgment is certified pursuant to Rule 54(b), an appellate court must review the finality of the judgment de novo to assure that it has jurisdiction. Id. at 437, 76 S.Ct. 895.
Here, it was improper for the district court to enter Rule 54(b) judgment because the inequitable conduct defense is pending. Thus, the patent infringement claim was not finally adjudicated. W.L. Gore v. Int’l Medical Prosthetics Research, 975 F.2d 858, 864 (Fed.Cir.1992) (Rule 54(b) judgment must finally dispose of a claim).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted. Appeals 2009-1397, -1398 are dismissed.
(2) All sides shall bear their own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472127/
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ON MOTION
PROST, Circuit Judge.
ORDER
Munchkin Inc. (Munchkin) and Luv n’ care Ltd. (Luv) move to dismiss Cool Baby, Inc.’s (Cool Baby) appeal for lack of jurisdiction and request attorney fees. Cool Baby opposes. Munchkin and Luv reply.
Cool Baby filed suit against Munchkin and Luv alleging patent infringement. Both Munchkin and Luv filed counterclaims for declaratory judgments of noninfringement and invalidity and filed motions for summary judgment based on noninfringment and invalidity. Subsequently, the district court granted Munchkin and Luv’s motions for summary judgment of noninfringement and entered a judgment. Coot Baby then appealed to this court. The district court stated that because it granted summary judgment of noninfringement, it “declines to address the issue of patent invalidity.” However, at the end of the same order, the district court stated that it granted summary judgment on noninfringement and invalidity, although it did not decide invalidity.
Munchkin and Luv contend that there are pending counterclaims before the district court and thus the appeal is premature. Cool Baby concedes that the district court did not specifically address invalidity in its order granting summary judgment. However, Cool Baby asserts that the district court impliedly granted summary judgment on invalidity. Cool Baby requests that this court remand to the district court so that it may provide a more detailed analysis in granting summary judgment on invalidity.
Although the district court’s order is not entirely clear, we determine that the district court did not grant Munchkin and Luv’s motions for summary judgment on invalidity and that their invalidity counterclaims are pending. Because there are pending counterclaims, there is no final judgment and this appeal is premature. See Pause Tech., LLC v. TiVo Inc., 401 F.3d 1290, 1294 (Fed.Cir.2005) (stating that “a pending counterclaim precludes jurisdiction absent certification under Rule 54(b)”); Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed.Cir.2003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no ‘final decision’ under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction.”) Thus, we dismiss. Cool Baby may, of course, file a notice of appeal after the district court disposes of all claims and enters final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Munchkin and Luv’s request for attorney fees is denied.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478106/
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ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472114/
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ON MOTION
PER CURIAM.
ORDER
Eartha P. Johnson moves for reconsideration of the court’s previous rejection of her petition for review.
The Merit Systems Protection Board issued its final order on November 24, 2008. Johnson received a copy of the Board’s order on November 29, 2008. Johnson’s petition was received by this court on April 10, 2009, more than four months after Johnson received the Board’s final order.
Our review of a Board decision or order is governed by 5 U.S.C. § 7703(b)(1), which provides that “Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the board.” This filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dep’t of Transportation, 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement that cannot be waived).
Because Johnson’s petition was not received within 60 days of the date she received the Board’s decision, we must dismiss her petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) Johnson’s petition is dismissed.
(2) Ml sides shall bear their own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472117/
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ON MOTION
ORDER
Upon consideration of the United States’ motion to withdraw its appeal,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Any other pending motions are moot.
(3) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472120/
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ON MOTION
MAYER, Circuit Judge.
ORDER
Bard Peripheral Vascular Inc., David Goldfarb, M.D., and C.R. Bard Inc. (“Bard”) move to dismiss W.L. Gore & Associates, Inc.’s (“Gore”) appeal, 2009-1345, for lack of jurisdiction. Gore opposes. Bard replies.
Bard filed an action against Gore in the United States District Court for the District of Arizona for patent infringement. After a trial, a jury found that Gore had willfully infringed Bard’s patent, rejected Gore’s invalidity argument, and awarded Bard compensatory damages. The district *581court entered judgment on July 30, 2008. Thereafter, both parties filed various post-judgment motions.
On March 31, 2009, 2009 WL 886514, the district court resolved a number of the pending post-judgment motions. Specifically, the district court granted Bard’s motions for prejudgment interest and supplemental damages, and denied Bard’s motion to permanently enjoin Gore from infringing its patent, but granted Bard’s alternative request for a compulsory license agreement for Gore’s future infringement. Proceedings to determine the terms of a license agreement to compensate Bard for Gore’s future infringement are ongoing. Subsequently, Bard appealed the district court’s March 31, 2009 order.
Bard asserts that Gore’s appeal of the March 31 order is premature because the proceedings to determine the particulars of the license are pending. Gore argues that its interlocutory appeal is permitted pursuant to 28 U.S.C. § 1292(c)(2) because the district court’s judgment is final and the continuing license agreement proceedings fall within the statute’s “accounting” exception. (“The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction ... of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable ... and is final except for an accounting.”)
Because proceedings concerning the license are still pending before the district court, we deem the better course is to dismiss the appeal as premature. See Special Devices, Inc. v. OEA Inc., 269 F.3d 1340, 1343 n. 2 (Fed.Cir.2001) (“ ‘Accounting,’ as used in [§ 1292(c)(2) ], refers to infringement damages pursuant to 35 U.S.C. § 284.”).
Accordingly,
IT IS ORDERED THAT:
(1) Bard’s motion to dismiss appeal no.2009-1345 is granted.
(2) Each side shall bear its own costs for 2009-1345.
(3) Bard’s brief in 2009-1359 is due within 30 days of the date of filing of this order.
(4) The revised official caption for 2009-1359 is reflected above.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472123/
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ON MOTION
PROST, Circuit Judge.
ORDER
National Oilwell Vareo, L.P. (Vareo) moves to dismiss 2009-1397, arguing that the United States District Court for the District of Colorado improperly directed entry of final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Pason Systems USA Corp. (Pason) opposes.
Vareo brought this patent infringement suit against Pason seeking compensatory damages and permanent injunctive relief. Pason’s answer included, inter alia, both an affirmative defense and a counterclaim of unenforceability due to inequitable conduct. The district court bifurcated the inequitable conduct issues and held a jury trial on infringement and invalidity. After the trial, the jury rendered a verdict finding that the patent was infringed and not invalid and that Vareo was entitled to $14,000,000 in damages.
On April 30, 2009, the district court sua sponte entered an order issuing its final judgment on the infringement claims pursuant to Rule 54(b). Although the inequi*583table conduct defense had not been decided, the district court determined that there was no just reason to delay entry of final judgment. Vareo now moves to dismiss that appeal.
Pursuant to Rule 54(b):
When an action presents more than one claim for relief or when multiple parties are involved, the court may direct entry of a final judgment as to fewer than all claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however, designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.
In order for Rule 54(b) to apply, the judgment must be final with respect to one or more claims. A judgment is not final for Rule 54(b) purposes unless it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). When a judgment is certified pursuant to Rule 54(b), an appellate court must review the finality of the judgment de novo to assure that it has jurisdiction. Id. at 437, 76 S.Ct. 895.
Here, it was improper for the district court to enter Rule 54(b) judgment because the inequitable conduct defense is pending. Thus, the patent infringement claim was not finally adjudicated. W.L. Gore v. Int’l Medical Prosthetics Research, 975 F.2d 858, 864 (Fed.Cir.1992) (Rule 54(b) judgment must finally dispose of a claim).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted. Appeals 2009-1397, -1398 are dismissed.
(2) All sides shall bear their own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472128/
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ON MOTION
PROST, Circuit Judge.
ORDER
Munchkin Inc. (Munchkin) and Luv n’ care Ltd. (Luv) move to dismiss Cool Baby, Inc.’s (Cool Baby) appeal for lack of jurisdiction and request attorney fees. Cool Baby opposes. Munchkin and Luv reply.
Cool Baby filed suit against Munchkin and Luv alleging patent infringement. Both Munchkin and Luv filed counterclaims for declaratory judgments of noninfringement and invalidity and filed motions for summary judgment based on noninfringment and invalidity. Subsequently, the district court granted Munchkin and Luv’s motions for summary judgment of noninfringement and entered a judgment. Coot Baby then appealed to this court. The district court stated that because it granted summary judgment of noninfringement, it “declines to address the issue of patent invalidity.” However, at the end of the same order, the district court stated that it granted summary judgment on noninfringement and invalidity, although it did not decide invalidity.
Munchkin and Luv contend that there are pending counterclaims before the district court and thus the appeal is premature. Cool Baby concedes that the district court did not specifically address invalidity in its order granting summary judgment. However, Cool Baby asserts that the district court impliedly granted summary judgment on invalidity. Cool Baby requests that this court remand to the district court so that it may provide a more detailed analysis in granting summary judgment on invalidity.
Although the district court’s order is not entirely clear, we determine that the district court did not grant Munchkin and Luv’s motions for summary judgment on invalidity and that their invalidity counterclaims are pending. Because there are pending counterclaims, there is no final judgment and this appeal is premature. See Pause Tech., LLC v. TiVo Inc., 401 F.3d 1290, 1294 (Fed.Cir.2005) (stating that “a pending counterclaim precludes jurisdiction absent certification under Rule 54(b)”); Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed.Cir.2003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no ‘final decision’ under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction.”) Thus, we dismiss. Cool Baby may, of course, file a notice of appeal after the district court disposes of all claims and enters final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) Munchkin and Luv’s request for attorney fees is denied.
(2) Each side shall bear its own costs.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478167/
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SLOVITER, Circuit Judge.
Appellant Teague Conaway1 (hereinafter “T.C.”) appeals the District Court’s grant of summary judgment in favor of defendant doctors and medical institutions. We will affirm.2
I.
T.C. was born with a life-threatening congenital heart defect, hypoplastic left heart syndrome. The standard treatment for this condition is a multi-stage process, involving three open-heart surgeries over a period of years. The objective of these surgeries is to alter the physiology of the patient such that the left side of the heart is bypassed so that the right side of the heart does the work of the underdeveloped left side. The first and second stages of the process were accomplished without incident by Dr. William Norwood.
In 2002, Drs. Norwood and John Murphy began a modification of the standard procedure traditionally used to accomplish the third stage of the treatment. Instead of a third open-heart surgery, the doctors decided that the third stage could be accomplished less invasively by using cardiac catheterization. Drs. Norwood and Murphy intended to connect veins and arteries in T.C.’s heart using a Cheatham Platinum covered stent (“CP stent”) via catheteriza*287tion. The CP stent was not approved by the FDA for general use, but Dr. Murphy obtained FDA approval under the “compassionate use” exception for use of the CP stent in twenty patients. R. at 7.
Soon after Dr. Murphy performed the alternative procedure on December 4, 2003, T.C. began to experience adverse symptoms, was treated briefly at A.I. du-Pont Hospital, and then transferred to Christiana Care Hospital and later Children’s Hospital of Philadelphia (CHOP) at the request of his family. At CHOP, T.C. was under the care of Dr. Jack Rychik, who diagnosed him with pleural effusions and ascites. Effusions are “collections of fluid ... that exist between tissue planes within the body,” which in this case developed around the lungs. R. at 9. Ascites is a condition by which effusions build up within the abdomen. Both conditions were caused by an obstruction, also known as a thrombus, within the CP stent. According to Dr. Rychik, such symptoms are “not a rare or unusual phenomenon” for a patient to develop after undergoing either the CP stent procedure that was used in this case or a third open-heart surgery. R. at 9.
Dr. Thomas Spray, also at CHOP, performed a “fontan takedown,” which reversed the third procedure after Dr. Ry-chik determined this to be the best course of treatment for T.C.’s obstruction. After this operation, T.C. “had a relatively rapid recovery” and has been “doing very well” since. R. at 10.
Due to his development of “severe as-cites and protein losing enteropathy necessitating ... additional surgery,” T.C. sued defendants alleging, inter alia, medical negligence, lack of informed consent, and fraud. Appellant’s Br. at 21. The District Court granted defendants’ summary judgment motion on all counts and subsequently denied T.C.’s motion for reconsideration.
II.
We exercise plenary review over the District Court’s grant of summary judgment. If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, we affirm the District Court’s ruling. Fed. R.Civ.P. 56(c)(2). In our review, we must view the facts in the light most favorable to the nonmoving party, T.C. in this case. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000). The District Court determined that Delaware law governs this action, and neither party disputes this ruling.
At the outset, we dispose of T.C.’s fraud claim. T.C.’s brief raises only the negligence and informed consent claims in its “Statement of Issues” section. Although one heading in T.C.’s brief appears to contest the dismissal of his fraud claim, the brief does not discuss the fraud claim any further. Such casual mention of an issue is insufficient to preserve it for consideration by this court. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993).
We turn to T.C.’s negligence and informed consent claims. The Delaware Health Care Act, 18 Del. C. § 6801, et seq. governs medical malpractice actions brought under Delaware law. In all but exceptional circumstances not present here, the Act requires the plaintiff in such actions to present expert testimony “as to the alleged deviation from the applicable standard of care in the specific circumstances of the ease and as to the causation of the alleged personal injury....” 18 Del. C. § 6853(e). Expert medical testimony as to the applicable standard of care, the deviation from that standard, and the causal link between the deviation and the alleged injury is “an essential element of a plaintiffs medical malpractice case and, as such, is an element on which he or she *288bears the burden of proof.” Burkhart v. Davies, 602 A.2d 56, 59 (Del.1991).
The Informed Consent Statute, 18 Del. C. § 6852, is found under the “Medical Negligence” chapter of the Delaware Code. Consequently, the requirement that the plaintiff present expert testimony as to causation in all medical malpractice actions extends to informed consent claims. See Valentine v. Mark, 2004 WL 2419131, *3 (Del.Super.2004) (“[A]n informed consent action still requires expert testimony as to causation.... Section 6852 cannot ... be used as a backdoor around the requirement that causation in medical negligence cases be supported by expert testimony.”). Therefore, the survival of both T.C.’s negligence and informed consent claims requires expert testimony showing that defendants’ negligence was the “but for” cause of T.C.’s alleged injuries. See Culver v. Bennett, 588 A.2d 1094, 1097 (Del. 1991) (rejecting the “substantial factor” test in favor of the “but for” test of proximate causation). However, the Act does not require the use of “magic words” or impose a burden on medical experts to “couch their opinions in legal terms.” Green v. Weiner, 766 A.2d 492, 495 (Del. 2001). The court must evaluate the “proffered testimony as a whole” to determine if it meets the statutory requirements. Barriocanal v. Gibbs, 697 A.2d 1169, 1173 (Del.1997).
T.C. has not presented expert testimony to establish that any acts of negligence by the defendants were the “but for” cause of any harm T.C. suffered. Rather, there is uncontroverted evidence that the symptoms T.C. experienced, pleural effusions and ascites, are common side-effects of the standard open-heart surgery procedure as well as the alternative procedure he underwent. Although T.C. proffers multiple statements by Dr. Weber that he contends satisfy his burden under § 6853(e), the proffered statements in fact clarify that Dr. Weber does not know what caused the obstruction in the CP stent. All of the expert testimony that T.C. cites establishes a causal connection between the obstruction and plaintiffs symptoms. None, however, draws a causal connection between the defendants’ deviation from the applicable standard of care and T.C.’s complained of symptoms. We agree with the District Court that without expert testimony as to this essential link in the causal chain, plaintiff has failed to meet the requirements of § 6853(e).
III.
For the above-stated reasons, the judgment of the District Court will be affirmed.
. Appellant Conaway is referred to both as "Teague” and "Teagh” in various documents. The District Court adopted the former spelling because that is what appeared in the complaint. We do the same.
. The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478169/
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OPINION OF THE COURT
FUENTES, Circuit Judge:
This case arises out of two contracts: a contract for the construction of four barges by HBC Barges, LLC (“HBC”) for Cashman Equipment Corporation (“Cash-man”), and a performance bond agreement between United States Fire Insurance Company (“U.S. Fire”) and HBC, which made U.S. Fire jointly and severally liable to Cashman for the performance of the contract. HBC failed to comply with aspects of the construction contract. Cash-man filed suit against HBC and U.S. Fire and was awarded liquidated damages and, following a bench trial before the Magistrate Judge, non-liquidated damages. These cross-appeals followed. We will affirm in part and reverse in part.
I.
On August 23, 2002, Cashman, a Massachusetts corporation, entered into a contract (the “Contract”) with HBC, a Pennsylvania company, under which HBC would construct four barges for Cashman for a total contract price of $1,128,604. In light of the fact that steel corrodes when exposed to salt water, the Contract required HBC to “[p]aint entire Interior and Exterior with two coats of epoxy 12 to 14 mils DFT.”1 (J.A. 716.) The Contract also provided that HBC would incur liquidated damages if it failed to deliver the barges to Cashman by December 30, 2002. Finally, the Contract expressly stated that it was to be construed under Massachusetts law.
HBC and U.S. Fire entered into a performance bond agreement (the “Bond Agreement”) in connection with the Contract. The Bond Agreement provided that HBC and U.S. Fire “jointly and severally, bind themselves ... to ... [Cashman] for the performance of the Construction Contract, which is incorporated herein by reference.” (J.A. 718.) U.S. Fire’s exposure under the Bond Agreement was capped at $1,128,604. Under the Bond Agreement, in the event of an uncured default by HBC, U.S. Fire was required to perform and complete the Contract; if U.S. Fire failed to do so, the Bond Agreement authorized Cashman to “enforce any remedy available to [it].” (J.A. 718.)
HBC’s performance under the Contract was deficient in two respects. First, the barges were not delivered on time, triggering the Contract’s liquidated damages clause. Second, HBC did not comply with aspects of the Contract’s painting specifications — the interior coating of the barges received only one coat averaging approximately five to seven mils in thickness, and the coating was not applied evenly, with some areas of the barges’ interiors having had no epoxy applied at all. Within a year *291of the belated delivery of the barges, Cash-man informed HBC of peeling epoxy and other “paint issues” on all four barges, (J.A. 700), and after HBC failed to take corrective actions, Cashman issued a notice to HBC and U.S. Fire declaring HBC’s default on the Contract. U.S. Fire failed to step in to cure HBC’s default, and Cashman filed suit against HBC and U.S. Fire.2
After discovery, Cashman and U.S. Fire filed cross-motions for summary judgment. The District Court, addressing the choice of law issues in the case, held that the Contract was governed by Massachusetts law on account of its choice of law clause, and that the Bond Agreement between HBC and U.S. Fire was governed by the law of Pennsylvania, the state with the closest ties to that Agreement. The District Court granted Cashman’s motion for partial summary judgment as to liquidated damages based upon HBC’s late delivery of the barges, finding HBC and U.S. Fire jointly and severally liable for $100,000. The Court further held that Cashman was owed prejudgment interest on its claim for liquidated damages, which the Court calculated at the twelve percent rate supplied by Massachusetts law, awarding $47,733 in prejudgment interest.3
Following a bench trial on non-liquidated damages, the Magistrate Judge found in Cashman’s favor and entered judgment on the remaining portion of the bond amount. The Magistrate Judge found that HBC had not applied sufficient epoxy and that HBC’s poor workmanship had caused the coating system to break down; as a consequence of HBC’s breach, the Magistrate Judge found, the useful service lives of the vessels had been diminished by at least ten years. The Magistrate Judge concluded that the cost to repair these damages was well in excess of the $1,028,604 remaining on the face amount of the bond and awarded the remainder of the bond amount in non-liquidated damages, rejecting U.S. Fire’s argument that this sum was so disproportionate to the lost value as to constitute economic waste. Applying the District Court’s holding that Pennsylvania law governed Cashman’s claim under the Bond Agreement, the Magistrate Judge applied Pennsylvania’s six percent interest rate, awarding $175,003 in prejudgment interest.
II.4
A.
We address the choice of law questions at the outset. U.S. Fire contends that the District Court erred in applying Massachusetts law to calculate prejudgment interest for liquidated damages, and Cashman challenges the determination that Pennsylvania law applied to its claim arising under the Bond Agreement. We *292agree with Cashman that Massachusetts law applies to the entirety of its claims against U.S. Fire.
Under the doctrine established by Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), “a federal court sitting in diversity must apply the law of the forum state to questions that are ‘substantive’ but must use federal rules to govern ‘procedural’ matters.” Yohannon v. Keene Corp., 924 F.2d 1255, 1265 (3d Cir.1991). Since a state’s conflict of law rules are substantive, a federal court exercising diversity jurisdiction must apply the conflict of law rules of the state in which it sits to determine which state’s laws govern each of the issues in a case. See Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).
The District Court correctly held that the choice of law clause in the Cashman-HBC Contract is enforceable under Pennsylvania law. See Gay v. CreditInform, 511 F.3d 369, 389 (3d Cir.2007). More problematic is the District Court’s holding that Cashman’s claims arising under the Bond Agreement are subject to Pennsylvania law. In reaching this conclusion, the District Court looked to the factors Pennsylvania courts consider in making choice of law determinations in the absence of an effective choice by the parties. However, in rendering this determination, the District Court overlooked the impact of the Contract’s choice of law provision upon the interpretation of the Bond Agreement.
Although the Pennsylvania Supreme Court has not addressed the impact of a choice of law clause in a principal contract upon a suretyship contract containing no choice of law clause, the Restatement (Second) of Conflict of Laws contains a provision directly on point. It provides:
The validity of a contract of suretyship and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the law governing the principal obligation which the contract of suretyship was intended to secure, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.
Restatement (Second) Conflict of Laws § 194 (emphasis added).
At least one federal court applying Pennsylvania law has relied upon this provision of the Restatement in determining which state’s law governs a suretyship agreement with no choice of law clause, see CBS, Inc. v. Film Corp. of America, 545 F.Supp. 1382, 1386 (E.D.Pa.1982), as have courts in numerous other jurisdictions.5 While Pennsylvania’s Supreme Court has yet to weigh in on this issue, the logic of the Restatement’s rule is persuasive, and we predict that when the Pennsylvania Supreme Court takes up the matter, it will follow the majority of jurisdictions and adopt the Restatement rule. First, as the comments to Section 194 explain, “[i]n the *293nature of things, the two contracts will usually be closely related and have many common elements,” Restatement (Second) Conflict of Laws § 194, cmt. b, which strongly suggests that the two contracts should be interpreted under the same state’s laws. Moreover, “[s]uch a conclusion is likewise dictated by considerations of practicality and convenience. In addition, the contract of suretyship can often be considered accessory, or subsidiary, to the principal obligation,” id., further indicating the logic behind the Restatement rule.
In arguing that Pennsylvania courts would not endorse the Restatement rule, U.S. Fire draws our attention to Pennsylvania cases setting forth the unremarkable proposition that “the obligation of a bond cannot be extended beyond the plain import of the words used.” Peter J. Mascaro Co. v. Milonas, 401 Pa. 632, 166 A.2d 15, 17 (1960) (citation omitted). Such a proposition would be relevant if the Bond Agreement itself contained a choice of law clause. However, the Restatement’s rule speaks to circumstances where there is no “plain import of the words used,” id., because the words of the suretyship agreement are silent as to the choice of law. See Restatement (Second) Conflict of Laws § 194 (setting forth the rule to apply “in the absence of an effective choice of law by the parties”). The Restatement rule is thus distinguishable from the Pennsylvania cases cited by U.S. Fire, which do not bear directly upon the question before us.
In the absence of any decision by the Pennsylvania Supreme Court to the contrary, and in light of the logic of the Restatement rule, we predict that the Pennsylvania Supreme Court would embrace the Restatement on this point. Applying Section 194 to the Bond Agreement, it is apparent that Massachusetts law should govern the interpretation of the Bond Agreement, including “the rights created thereby.” See id.6 The Bond Agreement is silent as to which state’s law should apply to it, which means that “the law governing the principal obligation which the contract of suretyship was intended to secure” likewise governs the Bond Agreement. The Massachusetts prejudgment interest rate is twelve percent, see Peabody N.E., Inc. v. Town of Marshfield, 426 Mass. 436, 445, 689 N.E.2d 774 (Mass.1998), and the Magistrate Judge’s application of Pennsylvania’s six percent rate was thus in error.
U.S. Fire’s final argument to the contrary is unavailing. U.S. Fire draws our attention to our decision in Yohannon v. Keene Corp., wherein we addressed the choice of law implications of Pennsylvania Rule of Civil Procedure 238, which provides for delay damages in certain tort actions. In assessing whether Pennsylvania courts would enforce Rule 238 or another jurisdiction’s delay damages rule when faced with a choice of law decision, *294we predicted in Yohannon that Pennsylvania’s Supreme Court would hold that Pennsylvania courts must always enforce Rule 238, rather than another jurisdiction’s delay damages rule. See Yohannon, 924 F.2d at 1267. Yohannon’s holding rested on the unique fact that the Pennsylvania Supreme Court has consistently — and controversially 7 — “insisted that the imposition of delay damages under Rule 238 is a matter of procedure.” Id. at 1266 (citations omitted).
U.S. Fire’s reliance on Yohannon in this matter is misplaced, on account of the simple fact that Rule 238 is a tort rule that has no application to contract cases such as this one. The Pennsylvania Supreme Court recently held in no uncertain terms that Rule 238 applies only to certain tort actions, expressly stating that “Rule 238 delay damages are not available in a breach of contract action.” Touloumes v. E.S.C. Inc., 587 Pa. 287, 298, 899 A.2d 343 (Pa.2006). The Court made clear that a separate category of prejudgment interest, unrelated to Rule 238, applies in contract-based claims:
[PJaramount is the fact that in a breach of contract action, pre-judgment interest is the appropriate vehicle to secure monies for the delay of relief. Thus, the purpose for which Rule 238 was promulgated was already recognized by the legal right to pre-judgment interest in contract actions.
Id at 297-98 (citations omitted). Unlike the Pennsylvania Supreme Court’s “steadfast” insistence that Rule 238 is a matter of procedure, not substance, Yohannon, 924 F.2d at 1266, there is nothing to suggest that the distinct “legal right to prejudgment interest in contract actions” would be characterized as a matter of procedural law. Touloumes, 587 Pa. at 298.
In sum, we conclude that Cashman’s entitlement to prejudgment interest under the Bond Agreement is governed by Massachusetts law. We will reverse the lower courts’ decisions to the contrary and remand in order for the District Court to correctly calculate prejudgment interest at the twelve percent rate supplied by Massachusetts law.
B.
We next address U.S. Fire’s contention that the Magistrate Judge erred in concluding that it would not constitute economic waste to award non-liquidated damages to Cashman in the amount of $1,028,604. U.S. Fire argues that the Magistrate Judge’s non-liquidated damages award is inconsistent with the economic waste doctrine because it awards an amount of damages equal to the original purchase price of the barges, when there is evidence suggesting that the barges have actually increased in value, notwithstanding the painting defects. We do not agree.
Under Massachusetts law,8 “[t]he basic principle of contract damages is that the *295aggrieved party should be put in as good a position as if the other party had fully performed.” Quinn Bros., Inc. v. Wecker, 414 Mass. 815, 817, 611 N.E.2d 234 (Mass. 1993) (citation omitted). In the case of construction contracts in which the contractor’s performance is incomplete or defective, “damages generally will be based on the market price of completing or correcting the performance.” Id. (internal quotations and citations omitted). The comments to Section 348 of the Restatement (Second) of Contracts explain the rationale behind permitting the non-breaching party to prove damages through demonstrating the cost of repairing the breaching party’s defective work:
Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompen-sated by being limited to the resulting diminution in the market price of his property.
Restatement (Second) of Contracts § 348, cmt. c.
“Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party.” Id. As the Restatement explains, a party suing for breach of a construction contract may be awarded damages based upon the cost to repair the defective work, unless such repairs would lead to unreasonable economic waste:
If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on[:]
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.
Id. at § 348(2).
The Supreme Judicial Court of Massachusetts has endorsed the economic waste doctrine. See, e.g., Ficara v. Belleau, 331 Mass. 80, 81, 117 N.E.2d 287 (Mass.1954). That court has not, however, expressly weighed in on a question implicated by U.S. Fire’s appeal — namely, who bears the burden of proof as to the proportionality between the cost of repairs and the difference in value between the work constructed and the work contracted for. The vast majority of authorities that have considered the question, however, concur with Professor Corbin that “[without question, the contract breaker should pay the cost of construction and completion in accordance with the contract unless the contractor proves affirmatively and convincingly that such construction and completion would involve an unreasonable economic waste.” 11 Corbin on Contracts § 60.1 (2005) (emphasis added).9
*296We predict that the Supreme Judicial Court of Massachusetts would endorse this rule if the question presented itself, because the rule is consistent with that state’s laws on contract damages and burdens of proof. Under Massachusetts law, the “basic principle of contract damages is that the aggrieved party should be put in as good a position as if the other party had fully performed,” which in construction contract cases means that damages are “based on the market price of completing or correcting the performance.” Quinn Bros., 414 Mass. at 817. It is the breaching contractor who stands to benefit from a deviation from this general principle under the economic waste doctrine. Cf. Andrulis v. Levin Const. Corp., 331 Md. 354, 628 A.2d 197, 208 (1993); P.G. Lake, Inc. v. Sheffield, 438 S.W.2d 952, 956 (Tex.Civ. App.1969) (“[t]he minimization of damages is a defensive matter,” and “[i]f the defendant desires to avail himself of such defense, the burden rests upon him to raise such issue by pleadings and proof’). The Supreme Judicial Court of Massachusetts has in no way suggested that the rule requiring the party asserting an affirmative defense to bear the “burden of establishing the facts necessary to support it,” Carpenter v. Carpenter, 73 Mass.App.Ct. 732, 901 N.E.2d 694, 699 (2009), would operate differently in the economic waste context. We conclude that the burden of proving that the cost of curing a construction defect is disproportionate to the probable loss in value rests with the contract breaker.
We further conclude that the Magistrate Judge’s determination that U.S. Fire failed to sustain its burden of proof as to disproportionality was not in error. The Magistrate Judge’s finding that HBC breached the terms of the Contract’s painting specifications, and that the resultant deterioration of the barges has caused injury to Cashman, are amply supported by the record. See Giles, 571 F.3d at 322. The evidence credited by the Magistrate Judge, particularly the testimony of Dr. Stoltz, was more than sufficient to show that the paint was applied at a lesser thickness than called for and in an un-workmanlike manner, and that the deterioration that resulted from HBC’s deficient work decreased the useful lives of the bai-ges by at least ten years.10 There was, in addition, ample evidence in the record of “the market price of completing or correcting the performance” in order to remedy HBC’s deficient construction. Quinn Bros., 414 Mass, at 817 (citation omitted). The parties presented three experts’ estimates of the cost to cure, which ranged from $1,979,992 at the low end to $3,941,234 at the upper end. As the Magistrate Judge concluded, “[t]he salient point is that all of these estimates are significantly greater than the $1,028,604.00 available face amount of the Bond which is the upward limit of U.S. Fire’s liability.” (J.A. 52.)
With Cashman having shown that HBC failed to correctly perform under the Contract and having adduced evidence of the price of correcting HBC’s deficient performance, see Quinn Bros., 414 Mass. at 817, the burden shifted to U.S. Fire to “prove[ ] affirmatively and convincingly that such construction and completion would involve an unreasonable economic waste.” 11 Corbin on Contracts § 60.1. One court has lucidly set forth a defen*297dant’s burden of proof in the following terms:
[OJnce [the plaintiff] presented sufficient proof ... on the cost-of-repairs measure, the burden shifted to [the defendant] to produce evidence showing (a) either that repairing the1 defects was unreasonable because it would have involved more destruction of quality workmanship than would have been warranted considering the value likely to be added to the [property] by making the repairs, or (b) that the repair costs would have been disproportionate to the probable increase in value to [plaintiff] resulting from proper construction, so that difference in value would have been the proper measure of damages. Either approach would have required proof regarding the value of the [property] as defectively constructed and its value if constructed without defect as the contract contemplated.
Pennington, 929 S.W.2d at 175 (emphasis added); see also Andrulis, 628 A.2d at 207.
The only evidence in the record concerning the value of the barges is the reports and deposition testimony of Mr. Collyer, a marine surveyor. Collyer first inspected the barges upon their delivery in 2003 and early 2004, and he estimated their collective market value at that time to be $1,650,000. Collyer subsequently appraised three of the barges in March 2006 — well after Cashman had informed HBC and U.S. Fire that the barges’ coating systems were failing' — and found, with little mention of the painting failures and the deterioration other examiners observed, that those three barges had actually increased in value by $25,000 each. Relying entirely upon Collyer’s valuations, U.S. Fire argues that Cashman has suffered no damages because the barges are presently worth more than Cashman paid for them, and that requiring U.S. Fire to pay the cost of repairs would therefore amount to economic waste.
The Magistrate Judge did not find Col-lyer’s valuations credible, and we cannot say that this determination was clearly erroneous. The Magistrate Judge explained in clear terms that he found Col-lyer’s appraisals to be internally inconsistent, and inconsistent with other evidence he had credited, and that Collyer’s opinions were therefore entitled to “only minimal weight.” (J.A. 30.) Specifically, the Magistrate Judge noted that within the same appraisal of a vessel, Collyer would identify “major paint failures” in a barge, but at the same time would describe the barge as having “good coatings.” (J.A. 30.) With regard to inconsistencies between Collyer’s appraisals and other evidence, the Magistrate Judge found that Collyer gave short shrift to the state and impact of the deterioration, particularly in light of Dr. Stoltz’s testimony (which the Magistrate Judge credited) concerning the impact of the failed coating system on the life span of the barges. U.S. Fire’s own expert witness, Dr. Senkowski, took note of these same inconsistencies and “questioned] the credibility of Mr. Collyer as a competent coatings inspector.” (J.A. 30.) Our review of the Magistrate Judge’s factual findings is for clear error. We cannot say that the Magistrate Judge’s rejection of Collyer’s valuations was “completely devoid of minimum evidentiary support displaying some hue of credibility.” Giles, 571 F.3d at 322. As the finder of fact, the Magistrate Judge was within his right to reject as unpersuasive Collyer’s evaluations, which were internally inconsistent and inconsistent with more credible evidence concerning the deterioration of the barges.
Nor was the Magistrate Judge obligated to accept Collyer’s appraisals simply because there was no other evidence as to *298the value of the barges. Indeed, even if Collyer’s opinions had not been contradicted by other evidence in the record, the Magistrate Judge would have been within his right not to credit evidence he found unpersuasive. See United States v. Saka, 339 F.2d 541, 543 (3d Cir.1964); see also, e.g., United States v. Sandoval-Mendoza, 472 F.3d 645, 649 (9th Cir.2006) (“Uncon-tradicted testimony is not necessarily undisputed evidence.”); Aron v. United States, 291 F.3d 708, 717 (11th Cir.2002). The Magistrate Judge gave a rational explanation for discrediting Collyer’s conclusions, and we certainly cannot characterize his fact finding as clearly erroneous. In short, U.S. Fire had the burden to prove affirmatively and convincingly that the cost of repairs would amount to economic waste, and the only evidence as to valuation was legitimately discredited by the Magistrate Judge. We will affirm the award of non-liquidated damages.11
III.
For the foregoing reasons, we affirm the District Court’s award of liquidated and non-liquidated damages. We vacate the award of prejudgment interest and remand for further proceedings consistent with this opinion.
. A ''mil” is a measurement equal to one-thousandth of an inch, and "DFT” stands for "dry film thickness.”
. HBC filed for bankruptcy, and the District Court held that Cashman could only proceed for damages against U.S. Fire.
. In its cross-motion for summary judgment on non-liquidated damages, U.S. Fire conceded that HBC had breached the terms of the Contract's painting provision, but argued that Cashman had failed to prove that it had sustained damages. The District Court rejected this argument, holding that factual disputes precluded the entry of summary judgment in U.S. Fire’s favor.
.The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the Magistrate Judge's factual findings for clear error. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009). We have plenary review over the District Court's and Magistrate Judge's application of the law to the facts. See Holmes v. Millcreek Tp. School Dist., 205 F.3d 583, 589 (3d Cir.2000).
. See, e.g., American State Bank v. U.S. Fidelity & Guaranty Co., 331 F.2d 479, 483 (7th Cir.1964); Socony-Vacuum Oil Co. v. Continental Cas. Co., 219 F.2d 645, 647 (2d Cir.1955); In re Commercial Money Center, Inc., Equipment Lease Litigation, 603 F.Supp.2d 1095, 1104 n. 8 (N.D.Ohio 2009); Ermer v. Case Corp., No. 01-338, 2002 WL 1796438, at *2 (D.Neb. Aug.05, 2002); Marshall Contractors, Inc. v. Peerless Ins. Co., 827 F.Supp. 91, 94 (D.R.I.1993); In re Technology for Energy Corp., 88 B.R. 182, 186 (E.D.Tenn.1988); Phoenix Arbor Plaza, Ltd. v. Dauderman, 163 Ariz. 27, 785 P.2d 1215, 1217 (1989); Johnson v. Ronamy Consumer Credit Cotp., 515 A.2d 682, 687 (Del. 1986); Philip Carey Co. v. Maryland Casualty Co., 201 Iowa 1063, 206 N.W. 808, 811 (Iowa 1926).
. The Restatement rule recognizes that the law governing the principal obligation may not apply to the suretyship agreement if “with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties.” Restatement (Second) Conflict of Laws § 194. While this clause might seem, on first blush, to call for an assessment of each state's connections to the parties and issues in the case, the comments to the Restatement make clear that such a determination is unnecessary under the circumstances presented in this appeal. "A sufficient relationship to justify application of the law governing the principal obligation ... exist[s] if the state whose local law governs the [principal] obligation was ... [either] the state where the [third-party beneficiary] ... relied upon the surety’s promise” or the "state of domicil” of either the beneficiary (Cashman) or the surety (U.S. Fire). Id.., cmt. c. Both of these conditions are clearly satisfied here.
. In Yohannon, we noted that the Pennsylvania Supreme Court's designation of Rule 238 as procedural has been the subject of “strong dissents and concurrences arguing that Rule 238 is not authorized by Article 5, § 10 of the Pennsylvania Constitution because it affects the substantive law of damages." Yohannon, 924 F.2d at 1266.
. As we have explained, Massachusetts law governs Cashman’s claim against U.S. Fire arising under the Bond Agreement. See Restatement (Second) Conflict of Laws § 194. While the Magistrate Judge assessed Cash-man's claim for non-liquidated damages under Pennsylvania law, the high courts of both Massachusetts and Pennsylvania have endorsed the economic waste doctrine, and there is no meaningful difference between the two jurisdictions' laws on this point. The Magistrate Judge's determination may thus be upheld, notwithstanding the erroneous application of Pennsylvania law.
. See, e.g., John Thurmond & Associates, Inc. v. Kennedy, 284 Ga. 469, 471, 668 S.E.2d 666 (Ga.2008); Panorama Village v. Golden Rule Roofing, 102 Wash.App. 422, 10 P.3d 417, 422 (2000); Pennington v. Rhodes, 929 S.W.2d 169, 175-76 (Ark.1996); Andrulis v. Levin Const. Corp., 331 Md. 354, 628 A.2d 197, 208 (1993); Moss v. Speck, 209 Neb. 46, 48-49, 306 N.W.2d 156 (Neb.1981); Stangl v. Todd, 554 P.2d 1316, 1320 (Utah 1976); P.G. Lake, *296Inc. v. Sheffield, 438 S.W.2d 952, 956 (Tex. Civ.App.1969); Shell v. Schmidt, 164 Cal.App.2d 350, 330 P.2d 817, 823 (1958).
. Indeed, even Dr. Senkowski, U.S. Fire's expert, conceded that fifty-eight percent of the interior coating of the barges had “failed to the point where they no longer are protecting the steel surface.” (j.A. 325.)
. We are unconvinced by U.S. Fire’s contention that in awarding liquidated damages, the District Court overlooked the fact that HBC and Cashman entered into a second contract which functioned as an accord and satisfaction that discharged FIBC's liability for liquidated damages under the original construction Contract. The only evidence of this second contract are a few sentences in the affidavit of HBC's former CEO. Under the best evidence rule, this statement was inadmissible, and it thus does not undermine the District Court's liquidated damage award. See Fed.R.Evid. 1002 (‘‘[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required....").
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8478172/
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OPINION OF THE COURT
FISHER, Circuit Judge.
Steven W. Robinson (“Robinson”) appeals from an order of the District Court granting a motion for summary judgment in favor of defendant, Matthews International Corporation (“Matthews”), holding that Matthews did not violate Robinson’s rights under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. For the reasons stated herein, we will affirm the judgment of the District Court.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.
The York Group, Inc. (“York Group”) hired Robinson as the Bronze Segment Controller at its Kingwood, West Virginia plant on January 3, 2000, and he continued in this capacity when the York Group was acquired by Matthews. Robinson was subsequently promoted to the operations controller position for Matthews’s casket division in Pittsburgh, PA, and was supervised by David Beck (“Beck”). At the completion of Robinson’s first year as operations controller, Beck administered Robinson’s performance evaluation for the fiscal year 2003. Robinson’s overall performance was rated, under Matthews’s performance rating system, in the “competent (meets standard)” range.
In September 2003, Beck was promoted within Matthews, and Jonathan Maurer (“Maurer”) took over as Robinson’s immediate supervisor. Maurer, however, left Matthews after only six months; thereafter, Robinson reported to Joseph Bartolac-ci (“Bartolacci”). In his 2004 fiscal year performance evaluation, Bartolacci rated Robinson’s overall performance as “adequate (below standard)” and noted that Robinson did not demonstrate the expected leadership levels on the business plan, the annual business review, and during monthly forecast meetings.
For financial reasons, in early summer 2004, Matthews decided to consolidate the responsibilities of the financial controller, the manager of financial analysis, and the operations controller, which was Robinson’s position, into a single “division controller” position and to liquidate the other positions. On November 5, 2004, Bartolac-ci met with Robinson and informed him that his position was being eliminated, effective at the end of the year, and that he was not being considered for the newly created division controller position. At this meeting, Bartolacci extended an offer to Robinson for the wood plant controller position at Matthews’s plant in York, Pennsylvania. The wood plant controller position would have constituted a demotion for Robinson, whereby his responsibilities would have been reduced and his annual pay cut. Robinson declined the offered position and continued work in his current position until he was terminated by Matthews on January 31, 2005. Robinson was fifty-one years of age at the time of his termination.
Steven Nicola (“Nicola”), the Matthews official responsible for filling the division controller position, believed, based in part on the opinions of other Matthews officials, *303that Robinson did not possess sufficient leadership, initiative, or analytical skills necessary for the new position. The division controller position was ultimately offered to, and accepted by Jim Kenna (“Kenna”). Kenna was thirty-six years old at the time he was hired and held a bachelor’s degree in accounting. Kenna’s qualifications included general accounting and operations experience, as well as experience performing audits. Robinson, on the other hand, had earned a Masters of Business Administration degree with double specializations in finance and management. He had experience in the payroll and accounting departments of other companies, as well as experience as a bronze segment controller and casket division operations controller for Matthews.
Following his termination, Robinson filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that he was discriminated against based on his age. Before the EEOC, Robinson contended that he was not given the opportunity to apply for the division controller position, that the position ultimately went to the younger Kenna, and that this constituted age discrimination in violation of the ADEA. The EEOC subsequently issued Robinson a right to sue letter.
On November 13, 2006, Robinson filed the instant lawsuit alleging age discrimination under the ADEA, sex discrimination under Title VII, constructive discharge under both statutes, and several related common law claims. Matthews filed a motion for summary judgment on all counts, and, on March 20, 2009, the District Court granted the motion. Robinson filed a timely notice of appeal. Robinson’s age discrimination claim under the ADEA is the only one before us in this appeal.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary judgment is plenary. Gardner v. State Farm Fire & Gas. Co., 544 F.3d 553, 557 (3d Cir.2008). In conducting our review, we must view the underlying facts and all reasonable inferences in the light most favorable to the party opposing the motion. Fasold v. Justice, 409 F.3d 178, 180 (3d Cir.2005). Summary judgment is only proper when there is no genuine dispute as to material facts, and the moving party is entitled to judgment as a matter of law. Id. at 183.
III.
Recognizing that it is often difficult for a plaintiff to prove illegal discrimination through direct evidence, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), constructed a framework under which a plaintiff may show that an adverse employment action was simply a pretext for discrimination. The McDonnell Douglas framework establishes a system whereby burdens of proof are allocated in employment discrimination suits. The plaintiff must carry the initial burden of establishing a prima facie case of unlawful discrimination. Id. at 802. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for taking the challenged action. Id. If the employer can articulate such a reason, then the burden shifts back to the plaintiff to show that the defendant’s reason was a pretext for discrimination. Id. at 804. The ultimate burden of persuasion that the employer intentionally discriminated against the plaintiff “remains at all times with the plaintiff.” Texas Dept. of *304Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 10 89, 67 L.Ed.2d 207 (1981).
In order to establish a prima facie case of age discrimination for failure to promote, the plaintiff must establish that: (1) he is age forty or older; (2) he applied for and is qualified for the job; (3) despite his qualifications he was rejected; and (4) the employer ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination. Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir.1995). The District Court held that Robinson established a prima facie case, and Matthews does not contest that finding in this appeal. Therefore, for our purposes, Robinson has met the burden of establishing a prima facie case under the ADEA.
The burden then shifts to Matthews to provide evidence that Robinson was rejected, or Kenna was preferred, for the division controller position for reasons that are legitimate and nondiscriminatory. Burdine, 450 U.S. at 254, 101 S.Ct. 1089. This burden is deemed satisfied if the employer introduces evidence that, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the challenged employment decision. The employer is not required to prove that this nondiscriminatory reason actually motivated the action in order to shift the burden back to the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). Matthews maintains that Robinson was performing below expectations in his current position and that he lacked the leadership ability, initiative, and analytical skills necessary to perform as division controller. Taken as true, these reasons would certainly be legitimate grounds not to promote Robinson. We conclude that Matthews has met its burden, and thus the burden of showing pretext shifts to Robinson.
The standard for determining pretext was set forth by this Court in Fuentes. In order for a plaintiff to defeat summary judgment, the plaintiff must either (i) discredit the proffered reasons, either circumstantially or directly, or (ii) adduce evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes, 32 F.3d at 764. A successful showing of pretext must “allow the factfinder reasonably to infer that each of the employer’s proffered nondiscriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Id. A plaintiff may not establish pretext by simply showing that the employer’s decision was wrong or mistaken because the main issue is whether the employer acted in a discriminatory manner. Id. at 765.
Robinson’s assertions center on the first prong of the Fuentes test: an attempt to discredit Matthews’s claim that the true reason for not promoting Robinson was that his performance did not warrant the promotion. Robinson makes five arguments to discredit Matthews’s proffered reasons, and we will consider each of them in turn.
First, Robinson argues that his performance evaluations do not support Matthews’s assertion that his performance was below expectations. He states that his performance ratings in fiscal year 2003 of “competent (meets standard)” and in fiscal year 2004 of “adequate (below standard)” are indicative of good performance. Robinson also cites the individual categories in his performance evaluations where he scored well as evidence of good performance. Ultimately, however, Robinson’s own view of his performance is irrelevant; instead, what matters is the perception of the employer. Billet v. CIGNA Corp., 940 *305F.2d 812, 825 (3d Cir.1991) rev’d on other grounds. The comments from Robinson’s supervisors, combined with the downward trajectory of his performance evaluations, belie Robinson’s assertions. Matthews has clearly laid out that an “adequate” review equates with “below standard” performance. Based on the performance evaluation alone, Matthews’s decision not to promote Robinson because his ratings demonstrated only “adequate” performance was a reasonable one, and we may not second guess this business decision. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 988 F.2d 509, 527 (3d Cir.1992).
Robinson’s second argument is that Matthews should have considered the difficult circumstances under which he assumed the operations controller position when reviewing his performance. Specifically, Robinson claims that his predecessor left the position before he could be adequately trained for the new position. It follows logically that any difficulties stemming from learning a new job would be ironed out in the first year, and that evidence of these early difficulties would be shown by an improvement, not a decline, in performance as those difficulties dissipate. However, Robinson’s scores on his performance evaluations actually declined from fiscal year 2003, when he was rated as “competent (meets standard),” to fiscal year 2004, when he was rated as “adequate (below standard).” This decline in performance following his first year in the position actually supports Matthews’s nondiscriminatory reasons for terminating Robinson.
Robinson next argues that Matthews’s failure to inform him of any problems with his performance is evidence of discriminatory pretext. While Robinson may not have been contacted routinely regarding the level of his performance, his annual evaluations indicated that he was not performing at an above average level and that his performance was not improving. However, even if no notice had been given, lack of information about performance problems does not constitute evidence of pretext. Hague v. Thompson Distrib. Co., 436 F.3d 816, 827 (7th Cir.2006).
The fourth argument Robinson advances is that pretext has been established by certain inconsistencies in the testimony of those in charge of hiring the division controller. Specifically, Robinson notes that Beck stated that he had no part in the division controller hiring process while Bartolacci and Nicola stated that Beck did have some input in the process. Robinson makes no allegation, however, that the inconsistencies in the testimony cited were evidence of discriminatory animus. In order to carry the burden of showing pretext, a plaintiffs evidence must allow a factfinder “reasonably to infer that each of the employer’s proffered non-discriminatory reasons ... was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Fuentes, 32 F.3d at 764. Inconsistencies over whether Beck had any part in the hiring of the division controller cannot give rise to an inference that Matthews’s decision not to promote Robinson was motivated by considerations other than his performance. These inconsistencies are not evidence that could permit a factfinder to conclude that Matthews’s stated reason was “unworthy of credence.” Id. at 765.
Robinson finally argues that he is more experienced than Kenna. Robinson does indeed have more experience working in the field and a higher level of education than Kenna, but this is not necessarily evidence of pretext. In attempting to discredit the employer’s proffered reason, a plaintiff “cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is wheth*306er discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Id. The decision to hire Kenna for the division controller position was ultimately a business decision, and simply because Robinson thinks he is more qualified for the division controller job does not entitle him to the position nor show discriminatory animus on the part of Matthews.
Since Robinson cannot point to evidence discrediting Matthews’s proffered legitimate reason for failing to promoting him, he cannot satisfy the first prong of the Fuentes analysis. Therefore, Robinson has failed to satisfy his burden of production under the McDonnell Douglas framework, and this failure entitles Matthews to judgment as a matter of law.
IV.
For all the foregoing reasons, we will affirm the District Court’s order for summary judgment in favor of Matthews.
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ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss this appeal for lack of jurisdiction or, in the alternative, summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Palmer v. Peake, No. 08-2783. Palmer opposes.
Palmer appealed to the Court of Appeals for Veterans Claims from a February 1, 2008 letter from the Board of Veterans’ Appeals granting his motion to advance his case on the docket. The Court of Appeals for Veterans Claims dismissed the appeal, finding that it lacked jurisdiction over Palmer’s appeal of the February 1 letter because the letter did not constitute a denial of his claim or an appealable final decision.
Summary affirmance of a case is appropriate “when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). Because we agree with the Court of Appeals for Veterans Claims that it lacked jurisdiction to review Palmer’s appeal of the February 1 letter, summary affirmance is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is denied. The motion for summary affirmance is granted.
(2) Any other motions are denied.
(3) Each side shall bear its own costs.
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PROST, Circuit Judge.
ORDER
Andy Lewis Heating & Air Conditioning, LLC submits correspondence stating that the above-captioned appeals were transmitted to this court in error and requesting that the court dismiss the appeals.
The parties appeal a decision of the United States District Court for the Northern District of Georgia. Andy Lewis’s district court complaint indicated that he sought relief for trademark infringement and a variety of state law claims. The notices of appeal indicate that both parties appealed to the United States Court of Appeals for the Eleventh Circuit. However, the appeals were transmitted to this court.
This court’s jurisdiction over appeals of district court decisions is limited primarily to cases involving patents and suits against the United States not exceeding $10,000. See 28 U.S.C. § 1295(a)(1), (2). Thus, this court lacks jurisdiction over these appeals. Andy Lewis states that the district court clerk has now transmitted the appeals to the Eleventh Circuit. Under these circumstances, dismissal is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The appeals are dismissed.
(2) Each side shall bear its own costs.
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PROST, Circuit Judge.
ORDER
Aspex Eyewear, Inc. et al. (Aspex) and Revolution Eyewear, Inc. and Gary Martin Zelman (Revolution) each submit status reports. Aspex submits a supplemental status report.
This case was stayed pending the court’s disposition in Revolution Eyewear, Inc. v. Aspex Eyewear, Inc., 556 F.3d 1294 (Fed.Cir.2009) (Appeal no. 2008-1050). Appeal no. 2008-1050 was decided on February 13, 2009 and the mandate issued on March 23, 2009. The court subsequently directed the parties to respond how 2008-1185, -1238 should proceed.
The above appeals and 2008-1050 arose from the same case in the United States District Court for the Central District of California. In the proceedings underlying 2008-1050, the district court determined that it lacked declaratory judgment jurisdiction over Aspex’s invalidity and unenforceability counterclaims based on Revolution’s covenant not to sue Aspex. Aspex then sought attorney fees pursuant to 35 U.S.C. § 285 based on Revolution’s alleged inequitable conduct in obtaining the patent in suit. Revolution sought sanctions, arguing that Aspex’s motion for attorney fees was improper. The district court denied both motions and Aspex and Revolution both appealed. Aspex’s appeal was docketed as 2008-1185 and Revolution’s appeal was docketed as 2008-1238.
In 2008-1050, this court determined that declaratory judgment jurisdiction over Aspex’s counterclaims did exist. Thus, the court reversed the judgment and remanded for further proceedings,
Aspex argues that “the attorneys’ fee issue has been rendered moot” by this court’s reversal in 2008-1050. Aspex asserts that “the attorneys’ fee question is therefore now before the district court and will be addressed when the issues relating to Revolution’s inequitable conduct are decided on the merits.” Thus, Aspex argues that 2008-1185 should be dismissed and requests that the court vacate the district court’s January 16, 2008 order denying its motion for attorney fees.
Revolution argues that this court’s March 24, 2008 order staying proceedings in these appeals required Aspex to file a status report within 14 days of the court’s disposition in 2008-1050 and that Aspex did not do so. Thus, Revolution argues that 2008-1185 should be dismissed for failure to prosecute.
In the proceedings underlying 2008-1185, the district court denied Aspex’s motion for attorney fees in part because “consideration of the issue of inequitable conduct at this stage would be, in effect, a delayed trial on the merits of one of the central claims in the suit.” Because this court in 2008-1050 reversed the district court’s dismissal of, inter alia, Aspex’s unenforceability counterclaim, we determine that the better course is to vacate that portion of the district court’s January 16, 2008 order that denied Aspex’s motion for attorney fees and remand for further proceedings.
With respect to Revolution’s appeal, 2009-1238, neither Aspex nor Revolution indicate in their status reports how they believe that appeal should proceed. Because Revolution has expressed no interest in pursuing its appeal, the court determines that dismissal is warranted.
Accordingly,
IT IS ORDERED THAT:
(1) The district court’s January 16, 2008 order is vacated to the extent that it denied Aspex’s motion for attorney fees and the case is remanded for further proceedings consistent with this order and with *589this court’s opinion in Revolution Eyewear, Inc. v. Aspex Eyewear, Inc., 556 F.3d 1294 (Fed.Cir.2009).
(2) Appeal no. 2009-1238 is dismissed.
(3) Each side shall bear its own costs.
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ON MOTION
PROST, Circuit Judge.
ORDER
Vermont Yankee Nuclear Power Corporation, Entergy Nuclear Vermont Yankee, LLC (ENVY) and Entergy Nuclear Operations, Inc. (ENO) (collectively, ENVY and ENO are referred to in this order as Entergy), and the United States each respond to the court’s order directing them to respond whether the Fed.R.Civ.P. 54(b) judgment was properly entered by the United States Court of Federal Claims.
The underlying proceedings involve litigation over a Standard Contract requiring Department of Energy (DOE) to accept spent nuclear fuel. Vermont Yankee owned and operated a power station that generated spent nuclear fuel until 2002. In 2002, Vermont Yankee sold the power station to ENVY. One day prior to the completion of the sale, Vermont Yankee filed suit against the United States seeking damages for (1) costs to provide for extended on-site storage of spent nuclear fuel prior to the sale of the power station and (2) alleged diminution in the sale price. In 2003, ENVY and ENO filed suit against the United States in the Court of Federal Claims to recover damages for DOE’s breach of its obligation to dispose of spent nuclear fuel. ENVY and ENO sought damages for the time periods both before and after it purchased the power station. The trial court consolidated the cases for purposes of trial and discovery.
ENVY moved for summary judgment, arguing that in the Purchase and Sale Agreement Vermont Yankee assigned to ENVY all claims against DOE with the exception of claims relating to a one-time *590fee that Vermont Yankee was required to pay relating to spent nuclear fuel that power station operators already had in possession at the time they signed Standard Contracts in 1983. ENVY argued that Vermont Yankee’s claims in this case, seeking pre-sale storage cost damages and damages for alleged diminution in the sale price, do not relate to the one-time fee and thus were assigned to ENVY.
The trial court granted ENVY’s summary judgment motion, holding that Vermont Yankee’s claims do not relate to the one-time fee and thus Vermont Yankee had not retained those claims in the Purchase and Sale Agreement. The trial court dismissed Vermont Yankee’s complaint, and Vermont Yankee appealed. The United States moved to vacate, alter, or amend the trial court’s October 30, 2008 judgment, resulting in this court deactivating the appeal pending resolution of that motion. Vermont Yankee informs the court that the trial court has now resolved the United States’ motion and directed entry of judgment pursuant to Rule 54(b) with respect to Vermont Yankee’s claims. The trial court also amended its consolidation order “to permit ENVY to participate as a party in Vermont Yankee’s appeal.”
The court recently held that in a case involving claims concerning spent nuclear fuel brought by both the prior and current owner of a power station, the claims may be so intertwined that entry of a Rule 54(b) judgment as to just one plaintiff may be improper. See Boston Edison Co. v. United States, 299 Fed.Appx. 956 (Fed.Cir.2008); see also Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8-10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (trial court may decide whether claims under review were separable from others remaining to be adjudicated and “whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once if there were subsequent appeals”; court of appeals must “scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units”); W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Res. Assocs., Inc., 975 F.2d 858, 862 (Fed.Cir.1992) (“[t]he separateness of the claims for relief, on the other hand, is a matter to be taken into account in reviewing the trial court’s exercise of discretion in determining that there is no just reason to delay the appeal”).
Because it appeared that Vermont Yankee’s claims and ENVY’s claims were intertwined, the court directed the parties to show cause whether the Rule 54(b) judgment was properly entered.
Vermont Yankee responds that the trial court’s Rule 54(b) judgment was properly entered. Vermont Yankee contends that there is no risk that the court will be faced with the same contract interpretation issue again in a subsequent appeal. Entergy similarly contends that the court will not be faced with the same question in a subsequent appeal, making this case different from Boston Edison, because “this Court’s resolution of the assignment issues will bind all parties, because Entergy is a party to the present appeal.”
The United States indicates that ENVY and Vermont Yankee both sought the same reracking costs and costs related to the storage of spent nuclear fuel. Because of this, the United States contends, if this court reversed the trial court’s judgment in Vermont Yankee, it would directly impact ENVY’s lawsuit and its ability to recover the damages it seeks. Thus, the United States argues that the claims are intertwined and the trial court should not have entered judgment pursuant to Rule 54(b).
*591The court agrees with the United States that the claims of Vermont Yankee and ENVY ai’e sufficiently intertwined that judgment pursuant to Rule 54(b) should not have been entered. Essentially, Vermont Yankee and ENVY have each claimed relief for the same alleged wrong, and each contends, and the trial court agreed, that pursuant to the Purchase and Sale Agreement only one of them can recover. Under these circumstances, the claims are too intertwined for entry of judgment pursuant to Rule 54(b) as to only one party and entry of judgment under Rule 54(b) was not proper. See W.L Gore.
Accordingly,
IT IS ORDERED THAT:
(1) The appeals are dismissed.
(2) The case is remanded to the Court of Federal Claims with instructions to vacate the Rule 54(b) judgment.
(3) All sides shall bear their own costs.
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ON MOTION
PER CURIAM.
ORDER
The United States moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Daniel L. DuMonde’s appeal as premature. DuMonde responds. Separately, DuMonde moves for leave to proceed in forma pauperis.
DuMonde filed a complaint in the United States Court of Federal Claims alleging false imprisonment. On May 23, 2009, DuMonde filed a document which the Court of Federal Claims treated as a notice of appeal to this court.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing *592for the court to do but execute the judgment.’ ” (citation omitted)).
The Court of Federal Claims had not entered or announced a judgment before DuMonde filed his appeal. Because the complaint was pending in the Court of Federal Claims, we must dismiss the appeal. The court notes that the Court of Federal Claims subsequently entered final judgment in this matter on July 8, 2009.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) DuMonde’s motion for leave to proceed in forma pauperis is denied as moot.
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ON MOTION
ORDER
Upon consideration of the appellants’ motion to voluntarily dismiss their appeal,*
IT IS ORDERED THAT:
The motion is granted. Each side shall bear its own costs.
It is not the court's usual practice to designate a voluntary dismissal as being with or without prejudice.
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ON MOTION
ORDER
Upon consideration of Deborah J. Jackson’s unopposed motion to voluntarily dismiss her appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
*597ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36.
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SUMMARY ORDER
Defendant-Appellant Starwood Hotels & Resorts Worldwide, Inc. (“Starwood”) appeals from an Order of the United States District Court for the Southern District of New York (McMahon, J.). The district court denied Starwood’s motion to compel Plaintiff-Appellee Moisés Mendez to arbitrate his employment discrimination claims against Starwood. Starwood bases its motion to compel upon a one-page letter-agreement between Starwood and Mendez. According to the district court, the arbitration provision in the letter-agreement is unenforceable because Mendez’s union, the New York Hotel & Motel Trades Council, AFL-CIO, is a designated collective-bargaining representative with exclusive authority to negotiate agreements to arbitrate such claims. Starwood has filed this interlocutory appeal under § 16(a)(1) of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 16(a)(1), which provides for immediate appeal from an order denying a motion to compel arbitration. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
This Court reviews the denial of a motion to compel arbitration de novo. Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir.2006). Pursuant to the National Labor Relations Act, a designated bar*603gaining representative has exclusive authority to bargain over “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. § 159(a). In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), the Supreme Court confirmed that where a union functions as an exclusive bargaining representative, “only the union may contract the employee’s terms and conditions of employment.” Id. at 180, 87 S.Ct. 2001. Represented employees are bound by these negotiated terms and conditions of employment, which are mandatory subjects of bargaining. Id.
Citing § 159(a) and Allis-Chalmers, the district court concluded that an agreement to arbitrate employment disputes is among the terms and conditions of employment over which a designated bargaining representative has exclusive bargaining authority. Therefore, according to the district court, only Mendez’s union had the authority to negotiate such an arbitration agreement and the provision in the individual letter-agreement between Starwood and Mendez is an unenforceable “side agreement.”
The arbitration provision in the letter-agreement Starwood asked Mendez to sign is without limitation, extending not simply to statutory claims but to “any disputes with respect to [Mendez’s] employment.” Because the provision Starwood relies upon reaches any dispute, it relates to subjects that are within the union’s exclusive bargaining realm, such as seniority, wages, and conditions of employment, and is therefore unenforceable. See Allis-Chalmers, 388 U.S. at 180, 87 S.Ct. 2001. Furthermore, unlike cases in which courts have severed an unenforceable fee provision from an otherwise enforceable arbitration clause, see Herrera v. Katz Commc’ns, Inc., 532 F.Supp.2d 644, 647 (S.D.N.Y.2008), there is no way to construe the language in the letter-agreement’s arbitration clause to allow severance of an invalid portion from an otherwise enforceable provision.
During the pendency of this appeal, the Supreme Court decided 14 Penn Plaza LLC v. Pyett, — U.S. - — -, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009), overruling Pyett v. Pennsylvania Bldg. Co., 498 F.3d 88 (2d Cir.2007). In Penn Plaza, the Court stated that an agreement to arbitrate employment-related discrimination claims is a “freely negotiated term” of a collective-bargaining agreement that “easily qualifies as a ‘condition of employment’ that is subject to mandatory bargaining under [NLRA] § 159(a).” Id. at 1464 (alteration omitted). Penn Plaza confirms that a union designated under § 159(a) has exclusive authority to negotiate agreements to arbitrate statutory discrimination claims. Nothing in Penn Plaza gives an employer the right to do so outside of the collective-bargaining context.
For the foregoing reasons, the decision is AFFIRMED.1
. Whether, in light of Penn Plaza, the arbitration provision in the industry-wide collective-bargaining agreement requires arbitration is not before us on appeal.
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OPINION OF THE COURT
DIAMOND, District Judge.
Christopher Renda challenges two special conditions of supervised release imposed following his conviction for possession of firearms by a convicted felon. 18 U.S.C. § 922(g)(1). For the reasons that follow, we affirm.
I.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
We ordinarily review the imposition of special conditions of supervised release for abuse of discretion. See United States v. Crandon, 173 F.3d 122, 127 (3d Cir.1999). When no objection is made before the district court, however, “review is for plain error.” United States v. Warren, 186 F.3d 358, 362 (3d Cir.1999).
III.
Because we write primarily for the Parties, we will summarize only those facts pertinent to our analysis.
Renda was arrested following an investigation conducted by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”). (PSR ¶ 3,7.) ATF agents interviewed Ken Fink, Renda’s former employer, who stated that Renda “had made threatening remarks about various local officials and judges who had handled prior cases involving Renda.” (PSR ¶ 7.) Fink told ATF agents that “on one occasion, while [Fink] and Renda were driving together, Renda pointed out a residence which Renda said belonged to a York County judge and indicated that he wanted to put a bomb under the judge’s vehicle.” (Id.) Authorities subsequently identified the Judge as Sheryl Dorney of the York County Common Pleas Court. (App. at 30, 36.) The agents executed a search warrant for Renda’s home where they found smokeless powder, fuses, and hundreds of rounds of live ammunition. (PSR ¶9.) Agents also found books “re-lat[ed] to bomb-making, improvised devices, firearms, and firearms silencers.” (PSR ¶ 8.)
On December 22, 2008, Renda pled guilty to one count of possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1). At sentencing, Renda objected to the threat description in the Presen-tence Report, and “categorically denie[d] making any threat to harm anyone.” (App. at 31.) The prosecutor acknowledged that because the Government could not corroborate Fink’s account of Renda’s threats, it would not seek any sentencing enhancements based on those threats. (Id. at 33.) The prosecutor maintained, however, that “[t]he [PSR] is accurate and complete in that it notes those allegations are what caused us out of a concern for the safety of judicial officers in York County and other public officials to commence this investigation....” (Id.)
The District Court overruled Renda’s objection to the PSR, stating that
*308this is part of the story, the whole picture here, and I’m not going to remove them from the presentence report. I will, however, state in light of [the prosecutor’s] statement that they should not be credited by the Bureau of Prisons for the purposes of determining punishment or appropriate institution or any of the other matters that might be involved in referring to them. (Id. at 34).
The District Court was familiar with Renda, having presided over his trial for weapons and drug offenses “in the early 80’s.” (App. at 42.) In imposing sentence, the Court discussed why a sentence of incarceration was necessary despite Ren-da’s advanced age (74) and poor health:
I feel bad for Mr. Renda and his several problems, but perhaps his health problems can be effectively addressed by the institution to which he will go. In light of his history I do have a concern about recidivism and I also think because of that history a punishment is appropriate, and so I am going to indicate in my, that in my opinion the guideline range here is a reasonable one and appropriate one. In light of his age and his health, I will sentence him at the bottom of that range. Mr. Renda as we have said has been in trouble many times over the years, and while he seems to have protected the guns as much as possible, just the mere fact that he had them, with his record, was a dumb thing to do.
(Id. at 42-43.) The District Court imposed a sentence within the advisory Guidelines range — fifteen months imprisonment and two years of supervised release with special conditions, including:
The defendant shall be placed on home detention with electronic monitoring during the period of supervised release, as directed by the probation officer. During this time, the defendant shall remain at his place of residence except for employment, education, religious activities, treatment, necessary shopping, or other activities pre-approved by the probation officer. The defendant shall comply with the rules of the location monitoring program, and shall maintain a telephone without any special features at his place of residence. Payment of the daily cost of location monitoring is waived; and The defendant shall [have] no contact or attempted contact with Judge Sheryl Dorney.
(Id. at 6.)
Although Renda did not object to these special conditions, he asks us to strike them as unreasonable.
IV.
Because Renda did not object below, we review his sentence for plain error. See United States v. Pruden, 398 F.3d 241, 248 (3d Cir.2005). To meet this standard, “[t]here must be an error that is plain and that affects substantial rights.’” United States v. Evans, 155 F.3d 245, 251 (3d Cir.1998) (internal quotation marks and citation omitted). We will vacate a sentence only “if the plain error affecting substantial rights also seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 251 (internal quotation marks and citations omitted).
Pursuant to 18 U.S.C. § 3583, a sentencing judge may impose special conditions of supervised release, as long as the conditions are “reasonably related to the sentencing factors set forth in § 3553(a), the nature and circumstances of the offense and the history and characteristics of the defendant, and must involve no greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, to protect the public from future crimes, and to rehabilitate the defendant.” United States v. Mizwa, 345 Fed.Appx. 834, *309836 (3d Cir.2009); 18 U.S.C. § 3553(a); 18 U.S.C. § 3583(d). Accordingly, “[c]ondi-tions of supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history of the defendant, the need for general deterrence, or similar concerns.” United States v. Voelker, 489 F.3d 139, 144 (3d Cir.2007).
The District Court did not make separate findings regarding the special conditions imposed, undoubtedly because Renda did not object to them. The record nonetheless amply demonstrates the reasons for the conditions. See id. (“Where a sentencing court fails to adequately explain its reasons for imposing a condition of supervised release or the condition’s relationship to the applicable sentencing factors, we may nevertheless affirm the condition if we can ‘ascertain any viable basis for the ... restriction in the record before the District Court ... on our own.’ ”) (citing Warren, 186 F.3d at 367).
Renda’s criminal history goes back to 1953, and includes three convictions for weapons-related offenses, including possession of pipe bombs. (PSR ¶ 24-28.) At the time of the pipe bomb incident, Renda also possessed a 9mm machine gun, a silencer, two pistols, and two 22 caliber silencers. (PSR ¶ 27.) When they searched his home in 2008, ATF agents found a small arsenal, including bomb-making materials. Mr. Fink said that Renda had threatened “various local officials and judges who had handled prior cases involving Renda,” and wanted to bomb the car of a judge determined to be Sheryl Dorney. The record further confirms that as a York County Assistant District Attorney, Ms. Dorney had prosecuted Renda, who subsequently appeared before Dorney after she became a Judge. (App. at 35.) At sentencing, Judge Dorney stated that over the thirty years she had dealt with Renda, she had learned that he “does not obey court orders ... [h]e does not obey the law.” (Id.) Judge Dorney asked the Court to impose supervised release conditions that included electronic monitoring and prohibiting Renda from coming within a mile of her home. (Id. at 36.) The Government reiterated that request. (Id. at 36-37.)
The Court did not bar Renda from the area around Judge Dorney’s home. Rather the Court narrowed the restriction, prohibiting Renda from having any contact with Judge Dorney. Although the electronic monitoring and home confinement are obviously restrictive, Renda may leave his residence for “employment, education, religious activities, treatment, necessary shopping, or other activities pre-approved by the probation officer.” (App. at 6.)
In these circumstances, we cannot say that the District Court committed plain error. On the contrary, the record amply demonstrates that the imposition of special conditions is “tangibly related to the circumstances of the offense [and] the history of the defendant.” Voelker, 489 F.3d at 144. Moreover, the conditions “impose no greater deprivation of liberty than is reasonably necessary” in the circumstances presented. 18 U.S.C. § 3583(d)(2).
V.
For the reasons stated, we will affirm the sentence imposed by the District Court.
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01-04-2023
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11-05-2022
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