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https://www.courtlistener.com/api/rest/v3/opinions/8478359/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Frederick Baynes appeals from a judgment entered by the United States District Court for the Eastern District of Pennsylvania upon his conviction on eleven counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and his sentence of 126 months’ imprisonment. Baynes argues that his sentence should be vacated because the District Court erred in deciding, pursuant to U.S.S.G. § 2B3.1(b)(2)(F), that he was subject to a sentencing enhancement because he had made a death threat. For the following reasons, we will affirm.
I. Background
This case arises from eleven bank robberies that Baynes committed in Philadelphia, Pennsylvania between July 13, 2007 and October 22, 2007. The Philadelphia Police Department arrested him on October 26, 2007, and, on November 7, 2007, a federal grand jury in the Eastern District of Pennsylvania returned an eleven-count indictment charging him with bank robbery, in violation of 18 U.S.C. § 2113(a). On December 1, 2008, Baynes pled guilty to all counts of the indictment.
Following the guilty plea, a probation officer prepared a Presentence Investigation Report (“PSR”), which offered brief accounts of the robberies. Of particular relevance to this appeal is the following description from the PSR of a July 13, *3662007 encounter between Baynes and a bank teller:
On July 13, 2007, the defendant entered the PNC Bank, located at 1801 Market Street, Philadelphia, Pennsylvania, and approached a teller window. The defendant then handed the victim teller a demand note which read something to the effect of “no dye pack, no tracker, 20’s, 50’s and 100’s or I’m going to pull this.” The defendant kept one of his hands down at his side which caused the victim teller to believe that the defendant was armed. The victim teller then removed money from the teller drawer and provided it to the defendant. The defendant subsequently fled the bank, with the demand note, and walked eastbound on Market Street.
(PSR at ¶ 9.) The PSR classified Baynes’s conduct on that occasion as a threat of death and, pursuant to § 2B3.1(b)(2)(F) of the United States Sentencing Guidelines, increased his offense level by two levels. Baynes’s criminal history was classified as category V, and, with the two-level death-threat enhancement, his total adjusted offense level was 26. That yielded a Guidelines range of 110 to 137 months’ imprisonment.
At the February 24, 2009 sentencing hearing, Baynes did not contest any of the matters contained in the PSR, and none of the hearing’s participants made any reference to the death-threat enhancement. The District Court determined that a sentence within the Guidelines range would accord with the statutory purposes identified in 18 U.S.C. § 3553(a) and imposed a term of imprisonment of 126 months.
II. Discussion1
Baynes’s sole argument on appeal is that the District Court erred in finding that his conduct on July 13, 2007 constituted a threat of death and hence a foundation for a sentencing enhancement under § 2B3.1(b)(2)(F). He concedes that, because he did not raise the issue in the District Court, we review that Court’s decision for plain error. FED. R. CRIM. P. 52(b); see also United States v. Evans, 155 F.3d 245, 248 (3d Cir.1998). Accordingly, Baynes must show “(1) error, (2) that is plain or obvious, and (3) that affects [his] substantial rights.” United States v. Berry, 553 F.3d 273, 279 (3d Cir.2009) (citation omitted). If Baynes satisfies all three conditions, we “may then exercise [our] discretion to notice a forfeited error, but only if ... the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
Baynes argues that his use of the phrase “pull this” is not a threat of death because “[a]t most, he implied inarticulately that he possessed some unknown intention, capacity, or object. The defining quality of the statement, therefore, is that it was too vague to permit any conclusion as to what it meant.” (Appellant’s Op. Br. at 16.) He further argues that, even if his statement could be construed as a threat, it was merely a “threat of bodily harm that is generic to all robbery offenses — not a threat of death.” (Id. at 19.)
Section 2B3.1(b)(2)(F) provides that a defendant’s offense level is to be increased by two levels when a “threat of death” is made in connection with a bank robbery. U.S.S.G. § 2B3.1(b)(2)(F). Application Note 6 says that a threat of death may consist of “an oral or written statement, act, gesture, or combination thereof,” id. at app. n. 6, and that a defendant “does not have to state expressly his intent to kill the victim in order for the enhancement to *367apply.” Id. We have held that “[a] threat is a ‘threat of death’ if it would reasonably so appear to the receiver of that threat.” United States v. Thomas, 327 F.3d 253, 256 (3d Cir.2003). The focus is on whether, under the circumstances, a reasonable person in the victim’s position would have viewed the defendant’s conduct as a threat of death. Id. at 255, 256.
The enhancement called for by § 2B3.1(b)(2)(F) applies only to death threats, and we have stated that “[treating' all threats in the course of a robbery as threats of death would defeat the distinction the enhancement seeks to capture.” Id. at 257. However, context is everything when distinguishing between a threat of death and threats of violence in general, and, “[i]n certain contexts, a general threat of violence may readily be viewed as encompassing the possibility of death.” Id. at 256. With respect to a bank robbery, we have held that the context is “inherently intimidating.” Id. at 257.
In Thomas, we examined the following statement in a bank robber’s demand note: “fill the bag with $100s, $50s and $20s, a dye pack will bring me back for your ass.” Id. at 254. At issue was whether the statement “a dye pack will bring me back for your ass” constituted a threat of death for purposes of § 2B3.1(b)(2)(F). We acknowledged that “[w]hether Thomas’s threat was a threat of death or only a threat of harm is not free from doubt.” Id. at 257. However, given the circumstances under which the statement was made (i.e., during the course of a bank robbery), we held that the district court did not err in finding that a reasonable person in the teller’s position would believe that a threat of death had been made. Id. Specifically, we stated that, “given the inherently intimidating nature of a bank robbery, it may be reasonable for a teller to believe her life is at risk when she has been directly threatened.” Id.
Here, Baynes made a direct threat during the course of a bank robbery by presenting the teller with a note that stated: “no dye pack, no tracker, 20’s, 50’s, and 100’s or I’m going to pull this.” (PSR at ¶ 9.) A reasonable person in the teller’s position would have understood the note to convey both a demand and a related threat. The demand is perfectly straight forward: give me U.S. currency in 20 dollar, 50 dollar, and 100 dollar denominations, and do not put in with the money any dye pack or tracking device. The threat is less clear but still very understandable. Particularly in light of Baynes’s positioning of his arm in a way that conveyed that he had a weapon,2 the statement “pull this” was readily understood as a reference to pulling a trigger. Thus, just as the statement “a dye pack will bring me back for your ass” constituted a threat of death in Thomas, “I’m going to pull this” constituted a threat of death here, because a reasonable person would perceive the statement as communicating Baynes’s intention to use deadly force if the teller did not comply with his demands.
Treating Baynes’s demand note as a threat of death is also supported by our holding in United States v. Figueroa, where we held that the defendant made a threat of death by handing the teller a note that stated, “I have a gun. Give me all the money.” 105 F.3d 874, 876 (3d *368Cir.1997). We concluded that, although the note did not explicitly communicate an intention to use the weapon, “it is not unreasonable for a bank teller, confronted by a robber demanding money and ... claiming to have a gun, to fear that his or her life is in danger.” Id. at 879. “After all, what is the purpose of announcing the presence of the weapon other than to convey to the victim that the weapon will be used unless the victim complies with the robber’s demands?” Id. Further, we stated that “[i]f section 2B3.1(b)(2)(F) applied] only to the defendant who explicitly communicates his intention to use the weapon if necessary, the result will be disparate sentences for defendants who have committed the same crime using the same means but who have differed in their verbosity or articulateness.” Id. at 880.
Again, in light of the circumstances, a reasonable person would interpret the phrase, “I’m going to pull this,” to mean that Baynes had a gun and intended to use it if the teller did not comply with his demands. It cannot be said that a reasonable person would believe that Baynes meant to pull out a harmless object or merely display a weapon without threatening to use it.
In sum, we do not believe that the District Court erred in finding that a reasonable person in the teller’s situation would have viewed Baynes’s statement as a threat of death. Accordingly, Baynes has failed to show an error in his sentencing, let alone a plain error affecting his substantial rights.
III. Conclusion
For the aforementioned reasons, we will affirm the judgment and sentence of the District Court.
. 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.
. According to the PSR, the teller believed Baynes was armed because he "kept one of his hands down at his side.” (PSR 11 9, 55.) Baynes argues that the positioning of his arm did not convey that he was armed because, "[rjather than ‘hiding’ any part of his body from view, he simply held ‘one of his hands down at his side.’ ” (Appellant's Op. Br. at 15) (quoting PSR 11 9.) However, the teller, presumably stationed behind a counter, interpreted Baynes's positioning differently. The District Court evidently accepted the teller's interpretation as reasonable, and we have no reason to disagree. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478322/ | ORDER
PER CURIAM.
The judgment in this case is aj(firmed. We uphold the district court’s grant of summary judgment of no infringement based on the court’s determination that there are no genuine issues of material fact and that no reasonable jury could find that the accused devices of Microsoft and Nintendo meet the pulse width limitation of the asserted claims of Fenner’s U.S. Patent No. 6,297,751 literally or under the doctrine of equivalents. We need not and do not address Microsoft’s alternate ground for affirmance, nor do we address the question raised by Fenner whether the district court erred in its construction of the claim term “processor.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478326/ | SUMMARY ORDER
Appellants Edward and Rosemary Brady appeal from the district court’s judgment dismissing their complaint for lack of subject matter jurisdiction. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
We review the dismissal of a complaint for lack of subject matter jurisdiction de novo. Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 79-80 (2d Cir.2005). “A case is properly dismissed for lack of subject matter jurisdiction under [Fed.R.Civ.P.] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). A plaintiff asserting jurisdiction has the burden of proving that jurisdiction exists by a preponderance of the evidence. Id.
Having conducted an independent and de novo review of the record in light of these principles, we affirm the district court's judgment for substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. Accordingly, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478329/ | SUMMARY ORDER
Benjamin Mitchell, pro se, incarcerated, and proceeding informa pauperis, appeals a judgment of the district court sua sponte dismissing his complaint without prejudice. Mitchell alleged constitutional violations and violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Dismissal was for failure to effect timely service upon the defendants, pursuant to Federal Rule of Civil Procedure 4(m). The district court adopted the report and recommendation of a magistrate judge, to which Mitchell filed no objections. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This Court has adopted the rule that failure to timely object to a magistrate judge’s report and recommendation “may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.” United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir.1997); see also Wesolek v. Canadair Limited, 838 F.2d 55, 58 (2d Cir.1988); Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (holding that a Court of Appeals may adopt such a rule). While this rule, which applies to pro se litigants, is “a nonjurisdic-tional waiver provision whose violation we may excuse in the interests of justice,” Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993), we have no basis for doing so here. None of Mitchell’s arguments on appeal has substantial merit. See Weso-lek, 838 F.2d at 58.
Since the district court dismissed the complaint without prejudice, Mitchell is *258not barred from filing (and properly serving) a new complaint raising the same allegations — although we express no opinion on whether such a complaint would be barred by the statute of limitations or other grounds.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478334/ | OPINION
PER CURIAM.
Charles Murray, proceeding pro se, appeals from the District Court’s orders dismissing his case and denying his motion for reconsideration, respectively. Because the appeal does not present a substantial question, we will summarily affirm the District Court’s orders. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
I.
In June 2009, Murray filed a pro se petition under 28 U.S.C. § 1361 for a writ of mandamus in the District of New Jersey, seeking an order to compel federal prison officials to authorize his pre-release transfer to a Residential Re-Entry Center (“RRC”). In his complaint, Murray alleged that while he had been approved for a pre-release transfer to an RRC, he was informed that the transfer was dependent upon his executing a Community Based Agreement Form. This form includes a provision that Murray would agree to make payments to contribute to the cost of the residence. Murray challenged that term of the agreement, asserting that all expenses attendant to his incarceration must be paid out of the United States Treasury, pursuant to 18 U.S.C. § 4007, and that he is exempt from paying any cost of incarceration fee, pursuant to 28 C.F.R. § 505.3. Murray also argued that his failure to exhaust administrative remedies prior to filing the complaint should be excused, as exhaustion would be “an exercise in futility” and the time lost during the administrative appeal process would be highly prejudicial.1
*320The District Court interpreted Murrays petition for a writ of mandamus as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. On July 10, 2009, 2009 WL 2044821, the District Court dismissed Murray’s petition sua sponte for failure to exhaust administrative remedies. The District Court also found that, to the extent failure to exhaust could be excused, Mur-rays petition is without merit because the Bureau of Prisons (“BOP”) acted within its statutory authority in conditioning pre-re-lease transfer upon execution of a Community Based Program Agreement. On September 28, 2009, the District Court denied Murrays motion for reconsideration. Murray now appeals to this Court from the District Court’s July 10 and September 28 orders.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise plenary review over the District Court’s dismissal. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.1996); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n. 3 (3d Cir.2005). We generally review a district court’s decision on a motion for reconsideration for abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999). Summary action is warranted when no substantial question is presented on appeal. See 3d Cir. LAR 27.4 and I.O.P. 10.6.
Murray filed his petition for a writ of mandamus pursuant to 28 U.S.C. § 1361. A district court has jurisdiction over mandamus actions “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is to be issued only in extraordinary circumstances, where the petitioner demonstrates that he has no alternative means to achieve the relief sought, and that he has a clear and indisputable right to the writ. See Stehney, 101 F.3d at 934 & n. 6.
We agree with the District Court that Murray has failed to establish that he has a clear and indisputable right to pre-re-lease placement in an RRC without participating in the subsistence program.2 The BOP is authorized to collect a subsistence fee from a federal prisoner for the costs of his confinement in community corrections centers, including RRC’s. The subsistence program, which requires inmates to pay a portion of the cost of the RRC, is a condition of placement in the RRC imposed to encourage financial responsibility in order that inmates may reintegrate into society. The subsistence program arises from BOP policy and emanates from the BOP’s general statutory authority to manage the prisons. See 18 U.S.C. §§ 4042(a), 3624(c)(1).
Accordingly, we will summarily affirm the District Court’s orders dismissing the *321complaint and denying Murray’s motion for reconsideration.
. When presented with the form, Murray attempted to challenge the provision by amending the language to state that he would only make payments “when authorized under statutory law or code of federal regulations." The BOP thereafter charged and sanctioned Murray with forgery and counterfeit of an official document. As a result of this incident, Murray filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. In this *320complaint, which is currently pending in the District of New Jersey, Murray has asked the District Court to order the BOP to reverse its findings of forgery and to restore all privileges that were lost as sanctions. See D.N.J. l:09-cv-4347.
. We note that the District Court treated Murray's petition as a petition for writ of habeas corpus instead of a petition for mandamus. This Court has held that a habeas petition pursuant to 28 U.S.C. § 2241 is the appropriate way to challenge BOP regulations (including placement in a community correction center or halfway house) because what is at issue is the “execution” of the prisoner’s sentence and not the "conditions” of his confinement. See Woodall, 432 F.3d at 241-44. Regardless, we agree with the District Court in its September 28 order that Murray’s petition is meritless whether it is construed as arising under § 2241 or§ 1631. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478338/ | OPINION
PER CURIAM.
Kermit Ceasar appeals from the District Court’s order dismissing his habeas petition pursuant to 28 U.S.C. § 2241 for lack of subject matter jurisdiction. We will summarily affirm because we agree that Ceasar cannot challenge his conviction by means of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
I.
In December 2002, the United States District Court for the District of New Hampshire imposed a 324-month sentence based on Ceasar’s guilty plea to distribution of crack cocaine and conspiracy to distribute and possess with intent to distribute crack cocaine.1 The United States Court of Appeals for the First Circuit affirmed. In July 2009, Ceasar filed this petition, his third collateral attack on his conviction, but his first attempt at proceeding under § 2241, claiming that he was denied the right to counsel during plea negotiations, that he is actually innocent of the conspiracy charge, and that the trial court lacked subject matter jurisdiction. After determining that the sentencing court could have entertained Ceasar’s claims, the District Court concluded that § 2255 was not “inadequate” or “ineffee-*324tive.” See § 2255; In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997). Therefore, the District Court dismissed the § 2241 petition for lack of jurisdiction. Ceasar appealed.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a). A certificate of appeala-bility is not required to appeal from the denial of this § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir.2009). We exercise plenary review over the District Court’s legal conclusions, and review its factual findings for clear error. See Vega v. United States, 493 F.3d 310, 314 (3d Cir.2007).
III.
The District Court properly dismissed Ceasar’s petition. A federal prisoner can seek relief under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002); Okereke v. United States, 307 F.3d 117, 120 (3d Cir.2002). Lack of success in a previous § 2255 motion, without more, does not render § 2255 inadequate or ineffective; nor do AEDPA’s restrictions on filing successive § 2255 motions. See Cradle, 290 F.3d at 539. We agree with the District Court that Ceasar’s case does not fit within the narrow class of circumstances in which a § 2255 motion would be inadequate or ineffective to challenge a conviction. Accordingly, the District Court’s dismissal of the petition on jurisdictional grounds was proper. Because no “substantial question” is presented by this appeal, we will affirm the order of the District Court.
. The sentence later was reduced to 262 months pursuant to 18 U.S.C. § 3582(c)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478340/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellant Diana DiMare filed a complaint against her former employer, Met-Life Insurance Company (“MetLife”), asserting claims under the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. § 10:5-1 et seq., and tort claims under New Jersey common law. DiMare appeals the District Court’s decisions to grant MetLife’s motion to dismiss certain claims and motion for summary judgment on the remaining claims. For the reasons set forth below, we will affirm.
I.
Because we write solely for the benefit of the parties, we will recite only the facts essential to our analysis. DiMare joined MetLife as a financial associate in August 1991. She held various positions there until February 2006. On February 10, 2006, DiMare went on short-term disability leave due to a diagnosis of breast cancer. In August 2006, DiMare transitioned to long-term disability leave. In late January 2007, DiMare informed MetLife that she would return to work on February 12, 2007. However, DiMare’s previous position had been filled during her absence by Paula Fitzgibbon, another female employee. Prior to DiMare’s return, MetLife notified her that her position had been filled and that she was eligible for the MetLife Plan for Transition Assistance for Officers severance package, or in the alternative, she could attempt to find another position within MetLife. MetLife further *327advised DiMare that if she was unsuccessful in securing another job within thirty days, she would be terminated and immediately eligible for the severance package. From early February 2007 until March 15, 2007, DiMare did not receive a salary. She instead utilized her outstanding paid time off while she attempted to find another position within MetLife. DiMare failed to secure another position, and on March 15, 2007 MetLife terminated her employment.
On August 9, 2007, DiMare filed a complaint against MetLife in New Jersey Superior Court. MetLife removed the action to the District Court on September 7, 2007. DiMare’s complaint alleged employment discrimination based on medical disability and gender and reprisal in violation of the NJLAD, breach of express contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, intentional infliction of emotional distress, and fraudulent misrepresentation.
MetLife filed a motion to dismiss on October 8, 2007. The District Court dismissed the reprisal claim because DiMare failed to establish that a medical leave of absence is a protected activity under the NJLAD and even if it were, DiMare failed to establish a causal link between her medical leave of absence and her termination. The District Court dismissed both breach of contract claims, as well as the claims for breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and intentional infliction of emotional distress as preempted by the NJLAD claims. The District Court dismissed the fraudulent misrepresentation claim because it failed to allege the specific facts required to withstand a motion to dismiss.
On September 12, 2008, MetLife moved for summary judgment on the remaining causes of action, discrimination based on medical disability and gender. MetLife asserted that it terminated DiMare because of the “elimination of her position and her failure to secure another position within 30 days after returning from a leave of absence in accordance with MetLife’s Leave Discontinuance Procedure [the “Procedure”].” Appellant’s Appendix (“Appellant’s App.”) 18. The District Court held that DiMare failed to demonstrate that MetLife’s proffered explanation was a pretext for discrimination, and granted MetLife’s motion for summary judgment. DiMare appealed to this Court.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1382. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo, applying the same standard that it used. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). We will view the evidence in the light most favorable to DiMare and draw all justifiable, reasonable inferences in her favor. Id. We will affirm if “there is no genuine issue as to any material fact” and the defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
We exercise plenary review of the District Court’s dismissal of DiMare’s claims under Fed.R.Civ.P. 12(b)(6). See Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). We must “ ‘accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.’ ” Grammer v. John J. Kane Reg’l Ctrs. Glen Hazel, 570 F.3d 520, 523 (3d Cir.2009) (quoting Phillips v. County of *328Allegheny, 515 F.3d 224, 233 (3d Cir.2008)).
III.
A.
DiMare appeals the District Court’s decision to grant summary judgment to MetLife on her gender and disability discrimination claims.1 In the absence of direct evidence of discrimination, an employee asserting a claim under the NJLAD may prove discrimination using the three-step burden-shifting inquiry established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Bergen Commercial Bank v. Sisler, 157 N.J. 188, 723 A.2d 944, 954-55 (1999). Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination. 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff succeeds, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee’s termination. Id. Once the employer meets its “relatively light burden,” the burden of production returns to the plaintiff, who must show by a preponderance of the evidence that the employer’s proffered reason is pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). To defeat summary judgment at the pretext stage, “the plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Id. at 764. Despite the burden-shifting, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
MetLife asserts that DiMare was terminated due to the elimination of her position and her failure to secure another position within thirty days of her return from leave, in accordance with the Procedure. Assuming, without deciding, that DiMare has established a prima facie case of discrimination, she fails to come forth with any evidence whatsoever that Met-Life’s articulated reason for terminating her employment was a pretext for discrimination.
The evidence shows that MetLife replaced and later terminated DiMare in accordance with the Procedure. The Procedure states that “[an employee] may be replaced if he/she does not return to work after FMLA/state law leave has been exhausted unless the manager grants a leave of absence. However, unless there is a significant business need, Company practice is not to replace until such time that the [employee] moves onto long term disability.” Appellant’s App. 461 (emphasis added). MetLife’s practice is to hold a position open for an employee on an approved leave of absence for a maximum of six months. Id. at 456. If MetLife has replaced an employee who was out on *329long-term disability and that employee wants to return to work, the Procedure instructs human resources to “put the [employee] on an unpaid leave of absence so equivalent opportunities can be explored .... If no opportunity is found within about 30 days, proceed with termination due to job elimination.” Id. at 461.
DiMare’s leave extended from February 2006 to January 2007, and her long-term disability began in August 2006. Thus, MetLife’s decision to fill DiMare’s position was consistent with the Procedure. Furthermore, the evidence shows that Gina Cochran of MetLife Human Resources circulated DiMare’s resume to other departments of the organization in which DiMare had expressed an interest. DiMare fails to proffer any evidence whatsoever that Met-Life’s decision not to hire her for another position was a pretext for discrimination.
The undisputed evidence is that MetLife had in place a non-discriminatory policy that allowed it to fill DiMare’s position while she was on leave and that it adhered to that policy. In sum, DiMare has failed to establish a genuine issue of material fact sufficient for a factfinder to reasonably either: 1) disbelieve MetLife’s assertion that it terminated DiMare because her position had been filled while she was on long term disability and she failed to secure another position within thirty days; or 2) believe that invidious discrimination was more likely the motivating cause of MetLife’s actions. See Fuentes, 32 F.3d at 764. Accordingly, the District Court properly granted MetLife’s motion for summary judgment on DiMare’s claims of gender and disability discrimination.
B.
DiMare also appeals the District Court’s Rule 12(b)(6) dismissal of her claims for breach of implied contract, intentional infliction of emotional distress, and fraudulent misrepresentation.2
1.
A fraudulent misrepresentation under New Jersey law “consists of a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment.” Voilas v. Gen. Motors Corp., 170 F.3d 367, 376 (3d Cir.1999) (internal citations omitted). A party alleging fraud “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). This Court has held that to satisfy Rule 9(b), a plaintiff “must state the circumstances of the alleged fraud with sufficient particularity to place the defendant on notice of the ‘precise misconduct with which [it is] charged.’ ” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.2007) (alteration in original) (quoting Lum v. Bank of Am., 361 F.3d 217, 223-24 (3d Cir.2004)). This requires a plaintiff to either plead the date, time, and place of the alleged fraud, or inject precision into the allegations by some alternative means. See id.
The District Court found that the fraud claim was supported only by a “conclusory allegation” that “MetLife had expressly knowingly, intentionally, recklessly and/or negligently misrepresented its intent to continue to gainfully employ Plaintiff ... with the intention/knowledge that Plaintiff *330would rely upon same.” Appellant’s App. 10-11 (citing Compl. ¶ 32).
On appeal, DiMare argues that the complaint “describes the misrepresentation that Plaintiff was promised her job position would be held open for her when she returned from medical leave” and “the misrepresentation wherein Appellant was promised that she would be continually employed.” DiMare Br. 22. In determining the sufficiency of DiMare’s allegations under Rule 9(b), we look only to the complaint; we will not consider the allegations in DiMare’s brief. See Frederico, 507 F.3d at 201-02 (refusing to consider allegations in appellant’s brief that did not appear in the complaint).
The complaint does not support Di-Mare’s argument. In her complaint, Di-Mare makes generic references to the fact that she was “welcomed back” to work at the Bridgewater facility and was “welcomed back” at a bi-annual meeting on January 30, 2007 before she was told that her job had been eliminated. Appellant’s App. 538. The complaint does not describe any representations whatsoever made by MetLife either before or after DiMare’s absence that DiMare’s job would be “held open for her” or that she would remain “continually employed.” DiMare’s complaint also fails to disclose the identity of the person who made the allegedly fraudulent misrepresentations.
Without such details MetLife was not placed “on notice of the precise misconduct with which [it was] charged.” Frederico, 507 F.3d at 200-01 (quotations omitted) (noting that plaintiff failed to place defendant on notice by neglecting to plead the substance of the alleged misrepresentations, the circumstances surrounding the alleged fraudulent statements and any information about the individual who made the statements); see also Lum, 361 F.3d at 224 (“Plaintiffs also must allege who made a misrepresentation to whom and the general content of the misrepresentation.”); Klein v. Gen. Nutrition Cos., Inc., 186 F.3d 338, 345 (3d Cir.1999) (holding that Rule 9(b) “requires, at a minimum, that the plaintiff identify the speaker of allegedly fraudulent statements”).
DiMare argues that this Court should apply a relaxed particularity standard because the factual information relating to the fraud is peculiarly within Met-Life’s knowledge or control. This Court has held that in cases such as corporate fraud, a plaintiff “cannot be expected to have personal knowledge of the details of corporate internal affairs” and thus has “relaxed the rule when factual information is peculiarly within the defendant’s knowledge or control.” In re Craftmatic Sec. Litig., 890 F.2d 628, 645 (3d Cir.1989). However, in such circumstances, the plaintiff must expressly allege that the necessary information lies within the defendant’s exclusive control and provide facts sufficient to indicate that the charges are not baseless. F.D.I.C. v. Bathgate, 27 F.3d 850, 876 (3d Cir.1994). DiMare has done neither. Furthermore, information about the person who made the allegedly fraudulent statements and the content of those statements is not peculiarly within MetLife’s knowledge or control.
2.
DiMare’s argument that the District Court erred in dismissing her claims for breach of implied contract and intentional infliction of emotional distress also fails. The District Court, in dismissing these claims, held that they were preempted by the NJLAD. DiMare’s opening brief argues that she set forth a prima facie case for both of these claims, however, it completely fails to address the District Court’s determination that these claims were preempted. Although DiMare *331argues in her reply brief that the claims were not preempted, we conclude that her failure to bring the issue up in her opening brief constitutes a waiver of this argument on appeal. See In re Surrick, 838 F.3d 224, 237 (3d Cir.2003).
IV.
For the reasons stated above, we will affirm the decisions of the District Court.
. DiMare argues that the District Court erred in considering a motion for summary judgment so close to trial and without oral argument. We need not dwell on this argument. Rule 56(a)(1) of the Federal Rules of Civil Procedure provides that a party may move for summary judgment at any time once "20 days have passed from commencement of the action.” Fed.R.Civ.P. 56(a)(1) (2008) (amended 2009). Further, pursuant to Rule 78 of the Federal Rules of Civil Procedure and N.J. Civil Local Rule 78.1, motions may be decided on the briefs and without oral argument. The District Court properly considered Met-Life's motion for summary judgment.
. DiMare does not appeal the District Court's decision to dismiss her claims of breach of express contract, breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and her reprisal claim under the NJLAD. Thus, DiMare has “abandoned and waived" those issues and this Court need not address them. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478341/ | *332OPINION OF THE COURT
SCIRICA, Chief Judge.
Defendant Manley Grey a/k/a John Low pleaded guilty to conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) and use of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)). Grey was sentenced to 191 months imprisonment. Grey challenges his sentence. We will affirm.
I.
Grey conspired along with three others to rob an armored car. Enlisting Evrol Dean, an employee of the armored car company, the four planned to sneak Grey and another co-conspirator into the armored car through an unlocked door. Grey and the cohort would then “instruct” Dean to drive to a secluded location. The fourth member of the conspiracy, Marvin Tillman, agreed to follow the armored car and transfer the money to his getaway vehicle. According to Grey, the amount they planned to steal was approximately $150,000. However, the targeted armored car would be carrying over $1 million on the day of the robbery.
The four men committed the robbery on February 14, 2006. Dean, as planned, left one of the doors to the armored vehicle unlocked as he entered a bank in Livingston, New Jersey with his unwitting partner. Grey and a fellow co-conspirator, armed with handguns, entered the truck and waited while the vehicle was stopped tó pick up a deposit. Once Dean and his partner returned, Grey pointed his gun at Dean’s partner and instructed him not to move. When Dean’s partner attempted to foil the robbery, Grey shot him twice at point-blank range. The partner leaped from the armored car and called for help. His life was saved only by his bullet-proof vest.
Grey and his co-conspirators, now in sole possession of the armored car, drove approximately 200 feet. They then stopped, exited the armored car, and emptied sacks of money (approximately $90,000) into Tillman’s getaway vehicle. Police apprehended Grey and his co-conspirators after a high speed chase.
Grey was charged in three counts of a four-count indictment and pleaded guilty to two charges: conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). At sentencing, the District Court found Grey responsible for over $1 million in loss, stating that “for a period of time [the defendants] were in sole control of an armored car with $ 1.1 million.” Consequently, the District Court imposed a four-level sentencing enhancement under United States Sentencing Guideline § 2B3.1(b)(7)(E) (2008).1 Grey challenges his sentence on two grounds, arguing the District Court erred in its loss calculation and failed to give adequate consideration to the 18 U.S.C. § 3553(a) factors.2
*333II.
Grey contends the court erred by calculating loss to be $1.165 million because the conspirators did not intend to steal more than $150,000 and in fact only “stole” approximately $90,000. Grey argues that loss, as outlined in U.S.S.G. § 2B1.1 cmt. n. 3(A)(ii), must be calculated only on the pecuniary harm that was intended to result from the offense.3 The District Court here correctly calculated loss in accordance with § 2B3.1, which addresses robbery, not § 2B1.1 cmt. n. 3, which addresses theft, embezzlement, receipt of stolen property, property destruction and offenses involving fraud or deceit. See United States v. Allen, 516 F.3d 364, 378-379 (6th Cir.2008) (finding the Commission’s amendment to § 2B1.1, instructing courts to use “the greater of actual loss or intended loss,” did not affect the definition of loss under § 2B3.1).
Section 2B3.1 cmt. n. 3 defines “loss” for purposes of robbery as “the value of the property taken, damaged or destroyed.” It is undisputed that the total amount of cash in the armored car was $1.165 million. When Grey and his co-conspirators commandeered the armored car, they took dominion and control over the total amount of $1.165 million. By exercising such dominion and control, Grey and his co-eon-spirators had “taken” all the money in the armored car as that term is set forth under § 2B3.1 cmt. n. 3. Grey and his co-conspirators moved the cash at will when they drove away in the armored car. They had seized the entire amount. Accordingly, the loss calculation must include the entire amount. Thus, the District Court’s loss calculation correctly reflects the amount which Grey had “taken” as $1.165 million.4
In United States v. Allen, the Court of Appeals for the Sixth Circuit held “a robber ‘takes’ an object, for purposes of § 2B3.1, when the robber exercises dominion and control over that object, such that the robber has completed the acts necessary to seize that object.” 516 F.3d at 380. In Allen, all co-conspirators pleaded guilty to stealing rare, expensive books from a university library. Id. at 366. In the course of the theft, defendants realized they were ill-prepared to remove such a large number of books, so they decided to leave those they could not carry. Id. at 369. The defendants were caught attempting to escape via a stairwell by a librarian. Id. Frightened at being discovered, they dropped several of the stolen books before fleeing the library. Id. The district court declined to include in the loss calculation the value of the books the defendants could not carry or dropped.
*334The government appealed the sentence and the Sixth Circuit concluded the district court’s loss calculation should have included the books left behind and dropped by the defendants. Id. at 381. The court found that the defendants had taken all the books because “they moved them at will; they could have damaged them, destroyed them, hidden them, played with them or — as they did — prepared them to be carried away.” Id.
Similarly, the Second Circuit has held loss calculation includes property over which the defendant exercised only temporary dominion and control. United States v. Parker; 903 F.2d 91, 105 (2d Cir.1990).5 The defendants in Parker conspired to rob a deposit vehicle belonging to a check cashing firm. Id. at 95-96. After stealing the vehicle, the defendants transferred a substantial portion, but not all, of the money into a getaway car and fled. Id. at 96. The court found the defendants responsible for the entire amount of money in the stolen deposit vehicle because they had exercised dominion and control over the entire lot of cash. Id. at 105. Although a portion of the money was not transferred into the getaway car that “[did] not mean that they had not taken it.” Id.
Accordingly, the District Court correctly calculated loss under the Sentencing Guidelines.
III.
Grey also argues the District Court’s sentence is unreasonable because it failed to adequately consider the 18 U.S.C. § 3553(a) factors in sentencing him at the high end of the advisory guideline range.
We evaluate a sentence by reviewing the court’s record considering the relevant factors in § 3553(a). United States v. King, 454 F.3d 187, 194 (3d Cir.2006). The sentencing judge need not explicitly comment on every factor if “the record makes clear the court took the factors into account in sentencing.” United States v. Howe, 543 F.3d 128, 137 (3d Cir.2008). We are satisfied that the District Court adequately considered and weighed the § 3553(a) factors.
The District Court took care to consider and explain its sentence to Grey. Grey argued he was less culpable than his co-defendants, that he had no intent to shoot the security guard, and that the poor conditions at the jail in which Grey was held before trial warranted a reduction in sentence. Despite Grey’s mitigating arguments, the District Court reasonably cited the seriousness of the offense6 under 18 U.S.C. § 3553(a)(1) and (2)(A) and the need to deter Grey and others under § 3553(a)(2)(B).
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
. Under U.S.S.G. § 2B3.1(b)(7)(E), a four-level enhancement is applied for a loss of more than $800,000 but less than $1,500,000.
Applying the four-level enhancement provided in U.S.S.G. § 2B3.1(b)(7)(E), the Court arrived at a total offense level of 25, which, when coupled with Grey's criminal history of I, yielded an advisory Guidelines range of 57-71 months on the conspiracy count, to be followed by a mandatory consecutive sentence of 120 months on the § 924(c) conviction. As noted, the court sentenced Grey to 191 months imprisonment; 71 months on Count 1 followed by a mandatory consecutive 120-month sentence on Count 4.
. The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over Grey’s appeal under 18 U.S.C. § 3742(a). We review a district *333court’s determination of loss for clear error. United States v. Brennan, 326 F.3d 176, 194 (3d Cir.2003). We review a district court's sentence for reasonableness. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. Grey fails to note that “intended loss” also “includes intended pecuniary harm that would have been impossible or unlikely to occur....” See U.S.S.G. § 2B1.1. cmt. n. 3(A)(ii)(II).
. Relying on United States v. Collado, 975 F.2d 985 (3d Cir.1992), Grey also argues he should not be held responsible for the amount of money stolen by his co-conspirators because he only agreed to steal between $100,000 and $150,000. However, in Collado we addressed an issue of accomplice attribution in which the defendant in a conspiracy had not performed the criminal acts charged. That argument is inapplicable here. Grey acted with his co-conspirators in stealing the armored car and the cash inside. The District Court did not rely upon the actions of others, exclusive of Grey’s own actions, to calculate Grey's base offense level. Thus, because Grey actively participated in the robbery, Collado's accomplice attribution argument does not apply.
. The Parker court interpreted the same language contained in what is now § 2B3.1 cmt. n. 3 prior to the Commission's amendments to § 2B 1.1. At the time Parker was decided, § 2B1.1 defined "loss” as "the value of the property taken, damaged or destroyed.” U.S.S.G. § 2B1.1. cmt. n. 2 (1990).
. As the Government properly pointed out, Grey was “the most culpable of all the defendants involved in this case,” as he "actually shot an innocent man” after pointing a loaded gun at him. The Court stressed the seriousness of this conduct, noting that a mere fortuity was all that prevented this prosecution from being one for "murder.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478343/ | OPINION
PER CURIAM.
Petitioner, Jian Jiang, seeks review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the *336following reasons, we will deny his petition.
I.
Jiang, a native and citizen of China, entered the United States without inspection on October 27, 2006. At a credible fear interview several days later, he told an asylum officer that he left China because he was Catholic, and Catholics are not permitted to practice their religion, attend high school or university, or earn a decent living in China. When the asylum officer asked him whether anything in particular happened to convince him to leave home, he stated as follows: “By then I figured out that I could not make a living in China. I decided to come to the Untied States. In China the work I can do only pays minimum money and I cannot make a living there.” (AR 000290.)
On June 7, 2007, Jiang filed an application for asylum and related relief. At his removal hearing, Jiang testified that he had been arrested, beaten, and detained on two separate occasions for participating in an underground Catholic church. First, on November 15, 2000, security officers at his school detained him and accused him of propagating Catholicism to his classmates. According to Jiang, the officers beat him and held him for ten hours before releasing him. Next, in December 2004, local officials raided a youth church gathering he was attending, arrested him, beat him, and detained him for two days.
Jiang told the court that, after this last incident, village officials went to his home, where they discovered religious materials. At that time, officials warned Jiang’s parents that if they caught him, he would be punished and imprisoned. As a result, Jiang fled to his aunt’s home and arranged to leave the country.1
After the hearing, the IJ found that Jiang was not credible because his testimony that day was inconsistent with the testimony he gave at his 2006 credible fear interview. The IJ also found that his story was inconsistent with the background materials submitted in his case. Therefore, the IJ found that he had failed to demonstrate eligibility for asylum on the basis of either past persecution or a well-founded fear of future persecution under INA § 101 (a)(42) (A). See 8 U.S.C. § 1101(a)(42). In light of this adverse credibility determination, the IJ also denied Jiang’s applications for withholding of removal and relief under the Convention Against Torture. Upon review, the BIA adopted and affirmed the IJ’s decision and dismissed the appeal. Jiang now petitions for review of the BIA’s order.
II.
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001). When, as in this case, the BIA substantially relies on the findings of the IJ, we review the decisions of both the BIA and the IJ. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). We review these findings, including any credibility determinations, under a substantial evidence standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir.2005). An adverse credibility finding must be upheld unless “any reasonable adjudicator would be compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
*337On appeal, Jiang first argues that the agency’s adverse credibility determination is not supported by substantial evidence. We disagree, as the record reveals important inconsistencies in Jiang’s story. Most significantly, when an asylum officer interviewed Jiang in 2006, he stated that he left China because he could not earn a living there, and did not mention to the officer that he had been arrested,2 beaten, and detained on two occasions for practicing Catholicism. Given that these arrests became the heart of his asylum claim, we cannot disagree with the BIA and IJ that this inconsistency greatly undermined Jiang’s credibility. See 8 U.S.C. § 1252(b)(4)(B).
Jiang now argues that the BIA and IJ failed to “fairly evaluate” his explanation for this omission, which — he claims — was that he did not mention the arrests at his credible fear interview because “there were no governmental law enforcement personnel involved in the arrest, nor was there any criminal allegation lodged against him.” (Br. 16-17.) This is not, however, the explanation that Jiang provided to the IJ at his removal hearing. Rather, at that time, he claimed that the reason he told the asylum officer that he had never been arrested was because the question had been asked as part of a narrower inquiry into a specific incident: “At the time I — that was asked when the, the church was being destroyed the priest and other members were not arrested and I was asked if I was also arrested and I said no.” (AR 000119.) Given that the explanation Jiang proposes on appeal was never proposed to either the IJ or the BIA, we cannot agree that the BIA failed to “fairly evaluate” it.
On appeal, Jiang also challenges the BIA’s decision insofar as it affirmed the IJ’s determination that he failed to establish eligibility for asylum on the alternative ground that he had a well-founded fear of future persecution. In order to establish a well-founded fear of persecution, an applicant must first demonstrate a subjective fear of persecution through credible testimony that his fear is genuine. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003). Second, the applicant must show that “a reasonable person in the alien’s circumstances would fear persecution if returned to the country in question.” Id. In this case, the BIA found that Jiang had failed to make the requisite showing — apparently under the first prong — because, as discussed above, it did not credit his testimony that he was “ever even ... a member of an unregistered Catholic Church.” (AR 000004.) The BIA also noted that Jiang’s parents have remained in China without meeting harm, implying that, even if Jiang were able to demonstrate a subjective fear of returning, this fact would undermine the objective reasonableness of that fear. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005).
In his brief, Jiang argues that there was no basis for the BIA to infer that he would not be harmed if forced to return to China from the fact that his parents have remained in China unharmed because there is no evidence in the record that his parents’ religious activities were as extensive or as public as his. As noted above, however, the BIA’s brief discussion of his parents’ recent experience in China was not the primary basis for its decision to affirm the IJ’s conclusion that Jiang failed to establish a well-founded fear of future persecution. Therefore, even assuming that *338the BIA erred in this respect, we see no reason to disturb the BIA’s determination that Jiang failed to meet his burden of proof on his future persecution claim.
We have considered Jiang’s remaining arguments and conclude that they are without merit. Therefore, we will deny the petition for review.3
. After Jiang testified, he presented the testimony of Father Andrew Tsi, the assistant parish vicar at Jiang's church in New York, to corroborate his testimony that he practices Catholicism in this country.
. Although Jiang refers to his detention by school security officers as an “arrest/' the IJ clarified that the individuals who allegedly detained him were not affiliated with the government.
. The BIA construed a document that Jiang submitted in conjunction with his administrative appeal as a motion to remand, and consolidated it with his appeal pursuant to 8 C.F.R. § 1003.2(c)(4). Jiang does not challenge the Board's construction of this document, or its decision to consolidate it with his administrative appeal, in his appeal to this Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478345/ | OPINION
SLOVITER, Circuit Judge.
Appellant Teddy Coppedge, who pled guilty to charges of being a felon in possession of a firearm, appeals the District Court’s denial of his motion to suppress evidence seized during a warrantless search of his automobile. At issue on appeal is whether Coppedge voluntarily consented to the search. We conclude that the District Court did not clearly err in finding that he did so consent, and we will accordingly affirm the District Court’s order.
*339i.
On April 8, 2008, two detectives of the City of Wilmington Police Department observed Coppedge run a red traffic signal while driving a white Buick. Because both detectives were dressed in plainclothes and were riding in an unmarked police vehicle, they started to call for a marked car to come perform the traffic stop. When Cop-pedge then parked the car he was driving and began to walk away, the officers decided to stop him themselves. They put on police vests (with “POLICE” marked across front and back), stopped Coppedge, handcuffed him, and sat him on the ground. The officers noted that Coppedge offered no resistance, and that he looked shaken and upset.
One of the officers testified that using handcuffs on Coppedge was necessary to protect the officers and to prevent him from fleeing. The officer further testified that, at this point, Coppedge was being detained for the traffic violation and would be free to leave once the ticket was issued. As part of the traffic stop, one of the officers asked Coppedge how he had arrived there, to which he replied that he had walked. Coppedge then consented to a pat down search, and the officer discovered a Buick key. Coppedge told the officer that the key belonged to his cousin and that the car was parked in another part of town; however, after the officer asked him if the key was actually for the white Buick parked across the street, Coppedge admitted that it was. The officer then asked Coppedge if there was anything in the car that the officer should know about, to which Coppedge replied there was a small amount of “bud” (meaning marijuana) in the center console. App. at 44. The officers then searched the vehicle, observed what appeared to be marijuana in the center console and found approximately 40 grams of marijuana in the glove box along with a loaded handgun. Coppedge was placed under arrest and later indicted for being a felon in possession of a firearm.
Coppedge filed a motion to suppress the physical evidence and statements from the traffic stop and search. The District Court denied this motion, finding that Coppedge had voluntarily consented to the warrantless search of his automobile and that he had not been in custody for Miranda purposes. Coppedge then entered a conditional plea of guilty, reserving his right to appeal the District Court’s adverse ruling on his suppression motion.1
II.
“We review ... the denial of the motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (internal quotations and brackets omitted).
Coppedge appeals only the District Court’s denial of his motion to suppress the physical evidence from the automobile search. Therefore, our review is limited to the Fourth Amendment issues concerning the search, and we need not consider whether Coppedge was in custody for Fifth Amendment Miranda purposes.
It is well established that police officers may constitutionally conduct a search without a warrant or probable cause based upon an individual’s voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness “is a question of fact to be determined from the totality of all the circumstances.” Id. at 227. Evidence that *340the consent was induced by police coercion renders the consent invalid. Id. We have held that “the critical factors comprising a totality of the circumstances inquiry ... include[ ] the setting in which the consent was obtained, the parties’ verbal and nonverbal actions, and the age, intelligence, and educational background of the consenting [party].” Givan, 320 F.3d at 459.
Applying the totality of the circumstances test to the facts adduced at the suppression hearing, we conclude that the District Court did not clearly err in determining that Coppedge voluntarily consented to the search. In his testimony at the suppression hearing, Officer Riley asserted that Coppedge consented to a search of the Buick by admitting to lying, acknowledging ownership of the Buick, and admitting that there was marijuana in the car. This assertion was not challenged on cross examination. Even though Coppedge was handcuffed at the time he gave his consent, the District Court concluded that this did not constitute a “custodial interrogation” that might render his consent involuntary, a finding which Coppedge has not challenged on appeal. See United States v. Willaman, 437 F.3d 354, 360 (3d Cir.2006). In addition, the evidence indicates his consent was not induced by police coercion: (i) he was seated on a public street, rather than confined to a police station or police car; (ii) the officers made no promises or threats to Coppedge; and (iii) there were only two police officers present when consent was obtained. See Givan, 320 F.3d at 459; United States v. Kim, 27 F.3d 947, 954-5 (3d Cir.1994).
III.
For the reasons set forth above, we will affirm the District Court’s ruling.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and this court has jurisdiction under 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478347/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
We consider in this appeal an order of the United States District Court for the Eastern District of Pennsylvania, granting a motion to enforce a putative settlement agreement. The appellant, California Sun Tanning, USA, Inc. (“California Sun”), asserts several related claims on appeal, but in essence it challenges the District Court’s conclusion that a series of e-mails amongst the parties established an enforceable settlement agreement. Finding no error, we will affirm the District Court’s order.
I.
Because we write solely for the benefit of the parties, we will only briefly recite the essential facts. In 2003, California Sun and its principals, Michael and Tamera Hrycay, entered into a franchise agreement with appellees Electric Beach, Inc. (“Electric Beach”) and its principals, Lee and Staci Carter.1 Pursuant to the *343agreement, Electric Beach would operate a tanning salon at Trolley Square in Wilmington, Delaware, using California Sun’s trade name and trademarks (the “Trolley Square Franchise”). In early 2007, Staci Carter contacted the Hrycays to report that her husband had manipulated the computer system at the franchise for the purpose of systematically underreporting revenues — and thereby commissions — to California Sun. California Sun estimated in its amended complaint that as a result of this manipulation, Lee Carter unlawfully underreported over $250,000 in gross revenues, and consequently caused it losses in excess of $50,000.
California Sun filed this action in November 2007, and amended its complaint in early December 2007. In the amended complaint, it requested injunctive and declaratory relief under the Lanham Act, seeking to preclude Electric Beach from further operating under California Sun’s trade name and using its marks. California Sun also filed a separate arbitration action for damages, as was contemplated in the franchise agreement.2 Although the original complaint invoked subject-matter jurisdiction solely under 28 U.S.C. § 1332, the amended complaint withdrew the parties’ diverse citizenship as a jurisdictional basis, instead invoking federal-question and trademark jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.3
Beginning in late December 2007 and continuing into January 2008, the parties engaged in settlement negotiations, largely via letter and e-mail. As originally proposed by California Sun, the parties would enter into an Asset Purchase Agreement (“APA”), whereby California Sun would purchase the Trolley Square Franchise (and related assets) from Electric Beach for $100,000 less expenses, and the parties would execute mutual releases of all claims against each other. Electric Beach Appendix (“E.B.App.”) 323. By e-mail dated January 4, 2008, counsel for Electric Beach outlined the major points of agreement that had been reached during a discussion with counsel for California Sun. E.B.App. 329. Specifically, the agreed-upon purchase price had been decreased to $85,000, and all parties would execute the mutual general releases. Id. Additionally, the e-mail proposed that the agreement call for “[mjutual cooperation in the turnover” of the Trolley Square Franchise to the Hrycays, which would be completed by January 22, 2008. E.BApp. 329, 336. The e-mail stated that the agreement would be conditioned upon Staci Carter’s acceptance. Id. Counsel for California Sun responded to this e-mail on January 7, 2008, stating under each point of agreement contained in the January 4 e-mail, “AGREED,” although he included a number of minor conditions which were ultimately fulfilled. E.BApp. 333-34. Counsel for Staci Carter also responded that the agreement-in-principle was “[a]ll fine with Staci Carter.” E.B.App. 335. California Sun agreed to circulate a draft APA promptly. E.BApp. 334, 347.
On January 8, 2008, counsel for California Sun informed the District Court by letter that “the parties have agreed in principal [sic] to amicably resolve their *344differences,” and requested thirty days to reduce the agreement to muting and “consummate all aspects of that agreement.” E.B.App. 338. Counsel also confirmed in an e-mail to Electric Beach that the District Court had been informed of the settlement. E.B.App. 341. On January 10, 2008, turnover of the Trolley Square Franchise commenced, as Tamera Hrycay began monitoring operations. E.B.App. 343, 400. California Sun ultimately assumed complete control of the franchise, and it entered into a new lease for the premises on February 13, 2008. E.B.App. 202-05. The $85,000 to be paid to Electric Beach— less outstanding rent, which was disbursed to the landlord — was deposited into an escrow account managed by counsel for California Sun pending execution of the APA. E.BApp. 202-03.
Meanwhile, during the January transition, California Sun alleges that it found the Trolley Square Franchise in disarray. Specifically, it claims that in anticipation of turning over control of the salon, Lee Carter had: (1) failed to satisfy substantial obligations (particularly rent, taxes, and certain utilities); (2) allowed the facilities to fall into disrepair (for instance, California Sun purchased a new air conditioning unit, claiming that the existing unit needed replacement); and (3) absconded with various assets and merchandise that were to be covered by the APA. California Sun demanded that Electric Beach defray the costs of resolving these issues by deducting them from the settlement funds held in escrow. See E.B.App. 348, 350, 358, 371, 431. During the balance of January and early February 2008, the parties negotiated over which liabilities would be satisfied with the escrowed settlement funds, and which would be the responsibilities of California Sun upon the APA’s execution. See, e.g., E.B.App. 375, 386, 400, 431. Electric Beach agreed to “modify” the purported agreement by satisfying all unpaid rent and other obligations owed to the landlord with the settlement funds, as well as any remaining commissions owed to California Sun. Electric Beach also ultimately agreed to deduct certain minor inventory costs. E.B.App. 440-41. But, claiming that the contemplated $85,000 purchase amount was intended to encompass certain other alleged liabilities that California Sun had identified (particularly, the cost to replace the air conditioning system), it refused to agree to further deductions from the settlement funds.
Negotiations continued, but the parties ultimately never executed the APA. On February 18, 2008, Electric Beach filed a motion in the District Court to enforce the settlement agreement as set forth in the series of early January 2008 e-mails discussed above. After a two-day evidentiary hearing, the District Court granted the motion. E.B.App. 1-5. Specifically, it held that the parties had reached an enforceable settlement agreement in early January 2008, and that the various e-mails evidenced the agreement. E.B.App. 199-205. Finding implicit in the agreement a condition that the assets to be purchased come “free of all liens and encumbrances,” E.B.App. 202, the District Court confirmed the deduction of back rent and other unpaid utilities, and also ordered additional sundry offsets for costs related to repairs and inventory. E.B.App. 2-5. Finally, the District Court directed Electric Beach to return certain items that had been removed from the Trolley Square Franchise,4 and to pick up several tanning beds that it independently owned. Id. In all, *345the District Court ordered California Sun to remit $63,983.60. to Electric Beach, and that the funds be held in escrow pending allocation upon the close of the Carters’ divorce proceedings. California Sun appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1338, and 15 U.S.C. § 1121. Our jurisdiction arises under 28 U.S.C. § 1291. California Sun presses two jurisdictional arguments that we must address at the outset. First, it asserts that upon assuming control of the Trolley Square Franchise, a live case or controversy over which the District Court could exercise jurisdiction ceased to exist, because at that point it had obtained the only relief sought in its complaint, i.e., cessation of Electric Beach’s use of its marks. Second, California Sun argues that once the District Court had deducted more than $10,000 in rent and utility payments from the $85,000 settlement funds, the amount in controversy no longer supported subject-matter jurisdiction. These claims test the boundaries of good faith.
“Mootness analysis traditionally begins with ‘the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.’ ” Int’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.1987) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). In short, “ ‘a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.’ ” Id. at 915 (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). A “live” controversy entails “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Id. (quoting Aetna Life Ins. Co. v. Haiworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937)).5 However the legal standard is formulated, “the central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Jersey Cent. Power and Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir.1985). In this case, the answer is clearly “no.”
Indulging California Sun’s unsupported claim that a case becomes moot upon recovery of the relief originally sought — notwithstanding the adversary’s counter-argument that such relief was pursuant to a settlement agreement — would undermine the courts’ ability to enforce settlement agreements when one party refuses unilaterally to comply. “It is well settled that a federal court has the inherent power to enforce and to consider challenges to settlements entered into in cases originally filed therein.” Fox v. Consol. Rail Corp., 739 F.2d 929, 932 (3d Cir.1984) (quoting Pearson v. Ecological Science Corp., 522 F.2d 171 (5th Cir.1975); cf. Washington Hosp. v. White, 889 F.2d 1294, 1298-99 (3d Cir.1989)). This maxim knows no greater force than when a putative settlement agreement is reached and partially completed during still-ongoing litigation. On appeal, it is California Sun that seeks entitlement to the settlement funds put into escrow. True, it no longer needs the equitable relief that it originally sought from the District Court. But we find it self-contradictory for California Sun to argue that there is no live dispute on the one *346hand, yet complain that the District Court’s conclusion on the merits was in error and that it should get its money back on the other. The dispute between the parties — over which each party has a manifestly cognizable interest (such as the settlement funds put into escrow while the litigation remained pending) was at all times live before the District Court, and it remains live today.
California Sun’s amount-in-controversy argument fares no better. We need not address its dubious claim that the amount actually in controversy fell below $75,000 once the liabilities were deducted. Upon amending its complaint without referencing or adopting the original, diversity jurisdiction ceased to be a basis for jurisdiction. See King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994) (“An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or incorporates by reference the earlier pleading.”) (citation omitted). Because federal-question and federal trademark jurisdiction — which carry no amount-in-controversy requirement, see Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 298 (2d Cir.2002) (citing 15 U.S.C. § 1121(a); 28 U.S.C. §§ 1331, 1338) — properly underlay the District Court’s exercise of subject-matter jurisdiction, the amount actually in controversy here is irrelevant.
III.
California Sun separates its claims on the merits into several sub-claims, which are all part-and-parcel of its overarching argument that the District Court erred by requiring the disbursement of the escrow funds to Electric Beach. Specifically, California Sun argues that: (1) the e-mails did not constitute an enforceable agreement because the parties only intended to be bound by a completed APA; (2) the doctrines of mutual and unilateral mistake preclude enforcement of any agreement; and (3) even if the e-mails are deemed to have established an enforceable agreement in the abstract, the agreement should not be enforced here because Electric Beach’s conduct constituted a material breach and was a product of unclean hands.6
It is by now axiomatic under Pennsylvania law that “the test for enforceability of an agreement is whether both parties have manifested an intention to be bound by its terms and whether the terms are sufficiently definite to be specifically enforced.” Channel Home Ctrs. v. Grossman, 795 F.2d 291, 298-99 (3d Cir.1986) (citing Lombardo v. Gasparini Excavating Co., 385 Pa. 388, 123 A.2d 663, 666 (1956); Linnet v. Hitchcock, 324 Pa.Super. 209, 471 A.2d 537, 540 (1984)). “In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.” Espenshade v. Espenshade, *347729 A.2d 1239, 1243 (Pa.Super.Ct.1999). Additionally, “[wjhere the parties have agreed on the essential terms of a contract, the fact that they intend to formalize their agreement in writing but have not yet done so does not prevent enforcement of such agreement.” Mazzella v. Koken, 559 Pa. 216, 739 A.2d 531, 536 (1999) (citations omitted). “If all of the material terms of a bargain are agreed upon, the settlement agreement will be enforced. If, however, there exist ambiguities and undetermined matters which render a settlement agreement impossible to understand and enforce, such an agreement must be set aside.” Id. (internal citation omitted).
We find no error — clear or otherwise — in the District Court’s conclusion that the early January e-mails evidenced the parties’ mutual assent and intention to be bound by the material terms of the contemplated agreement. Counsel for each party stated explicitly via e-mail that they stipulated to the essential terms of the agreement, including a release of claims by all parties, and $85,000 in exchange for unencumbered ownership of the Trolley Square Franchise. E.B.App. 200-02, 331-37. As the District Court noted, California Sun’s attorney also subsequently transmitted confirmatory e-mails during late January and early February corroborating the existence of an agreement. E.BApp. 202-03, 426, 510; 515. Retiring any lingering doubt on the issue is California Sun’s January 8, 2008 letter to the District Court advising that an agreement-in-principle had been reached, and that the “parties anticipate^] that they w[ould] be able to reduce their agreement to writing and consummate all aspects of that agreement. ...” E.BApp. 338. We find the material terms of the agreement pellueidly clear, and the parties’ intent to be bound thereby equally evident from the record. We also find lacking any evidence that the parties believed that the enforceability of any agreement would be contingent on the execution of a writing memorializing its terms. Cf. Essner v. Shoemaker, 393 Pa. 422, 143 A.2d 364, 366 (1958). Accordingly, we agree with the District Court’s conclusion that the parties entered into an enforceable settlement agreement.
We reject the remaining arguments. California Sun claims that because it “mistakenly” believed that Electric Beach had agreed to transfer all assets of the franchise free of encumbrances, but did not so agree in fact, it is not duty-bound to perform its own end of the bargain. We disagree. Given the District Court’s apt interpretation of the settlement agreement — that an implicit provision required the transfer of unencumbered assets, E.B.App. 202 — the doctrines of unilateral and mutual mistake are inapposite here. The doctrine of mutual mistake — a defense to contract formation— “serves as a defense to the formation of a contract and occurs when the parties to the contract have an erroneous belief as to a basic assumption of the contract at the time of formation which will have a material effect on the agreed exchange as to either party.” Hart v. Arnold, 884 A.2d 316, 333-34 (Pa.Super.Ct.2005) (internal citations and quotations omitted); see also Restatement (Second) of Contracts, § 152 (1981). The doctrine of unilateral mistake permits a mistaken party to void a contract if the effect of the mistake would render enforcement unconscionable, or if the non-mistaken party had reason to know of or caused the mistake. See Lanci v. Metro. Ins. Co., 388 Pa.Super. 1, 564 A.2d 972, 974-75 (1989) (quoting Restatement (Second) of Contracts, § 153). California Sun’s current protestations notwithstanding, the District Court found that the settlement agreement implicitly contemplated that California Sun was to receive *348the franchise assets free and clear of all encumbrances, and it deducted the corresponding amounts accordingly. As such, there is no mistake — mutual or unilateral — of which to complain; to the contrary, California Sun received everything for which it bargained.7
For similar reasons, we reject California Sun’s claim that Electric Beach is not entitled to specific performance because it: (1) materially breached the settlement agreement; and (2) seeks equity with unclean hands. It is California Sun that seeks to retain the benefit of its bargain with Electric Beach (ownership of the Trolley Square Franchise) without satisfying its corresponding obligation (paying $85,000 minus court-ordered offsets). This it may not do:
Under basic contract principles, when one party to a contract feels that the other contracting party has breached its agreement, the non-breaching party may either stop performance and assume the contract is avoided, or continue its performance and sue for damages. Under no circumstances may the non-breaching party stop performance and continue to take advantage of the contract’s benefits.
Pappan Enters. v. Hardee’s Food Sys., Inc., 143 F.3d 800, 806 (3d Cir.1998) (citation omitted). We conclude that Electric Beach has not breached the agreement, and that equity tilts in its favor.8
IV.
The District Court’s factual findings are manifestly supported by the record, and its legal analyses sound. For the foregoing reasons, we will affirm.
. Unless specifically stated otherwise, all references to Electric Beach include Lee Carter, and all references to California Sun include the Hrycays. At the time this action was *343filed, Lee and Staci Carter were separated and in the midst of divorce proceedings. Separate counsel represented Staci Carter in this matter, and she opposed the motion to enforce the settlement now under review (although she did not appeal the District Court's order). We therefore reference her separately-
. When a settlement appeared imminent, the arbitration action was withdrawn.
. The amended complaint also invoked supplemental jurisdiction under 28 U.S.C. § 1367 for the state-law claims alleged.
. Relevant here, these items included a “tootsie” tanning machine, a palm tree, and 600 pairs of sunglasses. E.B.App. 3.
. Prudential considerations of mootness do not affect our analysis here, and we do not discuss them. See generally Kelly, 815 F.2d at 915.
. Settlement agreements are nothing more than contracts, and therefore basic contracts principles apply. This Court's review of the existence and legal consequences of a settlement agreement is plenary. See Flemming v. Air Sunshine, Inc., 311 F.3d 282, 289 (3d Cir.2002). Where, as here, there has been an evidentiary hearing and explicit findings of fact have been made — including a finding that the parties agreed to certain settlement terms and intended to be bound thereby — we review those findings for clear error. See In re Cendant Corp.Prides Litig., 233 F.3d 188, 193 (3d Cir.2000); Tieman v. Devoe, 923 F.2d 1024, 1031 n. 5 (3d Cir.1991). Although the underlying case concerned only federal claims, we see no good reason why state law should not apply in these circumstances. See Edwards v. Born, Inc., 792 F.2d 387, 389 (3d Cir.1986); Tieman, 923 F.2d at 1032-33 & n. 6. We accordingly apply Pennsylvania contract law, as the parties’ franchise agreement stipulated that the Commonwealth's law would govern their relationship.
. We note that California Sun does not challenge the correctness of the itemized offsets for back rent, utilities, repairs, and inventory, or the District Court's refusal to grant specific deductions. See generally E.B.App. 2-4. In any event, having reviewed the record, we find the District Court’s allocation of funds amply supported by the record. Finally, we reject California Sun's claim that rescission or avoidance of the agreement is appropriate based on Lee Carter’s removal of certain items from the salon (e.g., the “tootsie” tanning machine, palm tree, and 600 pairs of sunglasses). The District Court specifically found that the agreement called for the return of these items, and included this term in its order. E.B.App. 3. California Sun therefore received the benefit of its bargain.
. Whether there was factual or legal merit to California Sun's underlying claims is not before us; at issue here is the settlement agreement. Having steadfastly maintained its position that it may retain full title to the Trolley Square Franchise but is not obligated to dispense any of the settlement funds in return, California Sun's appeal to equity is sorely misplaced. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478349/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Essex Insurance Company (“Essex”) appeals from a declaratory judgment entered against it by the United States District Court for the Middle District of Pennsylvania after a bench trial, obligating it to defend and indemnify Greenway Center, Inc. (“GCI”) in a wrongful death action brought against GCI in the Monroe County Court of Common Pleas by Annette Maione. The basis for the District Court’s judgment was its conclusion that a defacto merger occurred between GCI and Winco Acquisitions, Inc. d/b/a Greenway Center (“Winco”). Winco is the former operator of the Greenway Center (the “Center”), a drug and alcohol treatment facility in Hen-ryville, Pennsylvania, and the insured on a 1997 policy issued by Essex.1 Because we conclude that GCI is not a successor to Winco under Pennsylvania law, we will vacate the District Court’s judgment and remand for further proceedings consistent with this opinion.
I. Background
On June 24, 1997, Mark Willet passed away the day after having checked into the Center for treatment of his drug and alcohol addictions. At the time of Willet’s death, Winco operated the Center. However, as discussed in more detail below, GCI, which was incorporated in 1998, eventually took over the Center’s operations. In 1999, Maione brought a wrongful death action against GCI in connection with her husband’s death.
*350GCI filed the instant lawsuit against Essex and Maione, individually and in her capacity as the administrator of her husband’s estate, in the Monroe County Court of Common Pleas in December of 2008, seeking a declaratory judgment that Essex is obligated to indemnify and defend GCI in Maione’s wrongful death action. The matter was removed to the District Court in 2004. After a bench trial on April 19, 2005, the Court found in favor of GCI, holding that the state court in the underlying negligence action had already found GCI to be a successor of Winco and that issue preclusion prevented Essex from challenging that finding. We reversed on appeal, holding that issue preclusion was inapplicable, and remanded for a determination as to whether GCI was a successor in interest to Winco. Greenway Ctr. Inc. v. Essex Ins. Co., 475 F.3d 139 (3d Cir.2007).
On remand, the District Court held a supplemental bench trial and, in an August 6, 2008 memorandum opinion, 2008 WL 3165874, the following facts emerged. Winco operated the Center as an alcohol and drug rehabilitation center pursuant to a license issued by the Pennsylvania Department of Health (“DOH”). After Wil-let’s death, the DOH revoked Winco’s license, and the Center was shut down in November 1997. Winco had previously filed for bankruptcy in June of 1997 and had developed a reorganization plan pursuant to which all of its stock was to be vested in or reissued to GCI. Ultimately, however, no stock was ever transferred from Winco to GCI. Furthermore, GCI did not purchase any of Winco’s assets.
Heath Management Associates (“HMA”), a management company, was authorized by the Bankruptcy Court to operate the Center during the transition period. HMA began running the Center in February 1998 pursuant to a management agreement with Winco, and reopened the Center in March 1998 “with the aim of eventually turning the business over to GCI.” (App. at 16.) Financing for the Center’s operation was provided by Via-care. HMA, Yiacare, and GCI all had the same individuals serving on their boards of directors. However, none of the shareholders, officers, or directors of Winco were shareholders, officers, or directors of GCI.2
HMA became the holder of Winco’s license, though the license remained in Win-co’s name. Since most of Winco’s employees left the Center after it closed, HMA hired new employees upon reopening with the exception of two individuals from the previous administration. While running the Center, HMA did not take any direction from any of Winco’s stockholders or owners. In fact, it was prohibited from doing so by the DOH, which only permitted the Center to reopen on the condition that Winco’s management be prohibited from participating in the Center’s operations.3 Greenway Ctr. Inc., 475 F.3d at 143 n. 3. In other words, Winco’s management was forbidden to, and in fact never again did, play any role in running the Center after it was shut down.
The boards of HMA, Viacare, and GCI met between 1998 and 2000 to discuss the Center’s operations. No one from Winco was present at those meetings, and thus GCI’s executive director made decisions for Winco. Winco was the licensee and the named insured on relevant insurance policies during this time period, and it *351maintained bank accounts to pay employees, even though it played no role in running the Center. Additionally, Winco remained a party to contracts with various counties that referred patients to the Center for court-supervised treatment so that referrals pursuant to those contracts could continue uninterrupted. In short, after HMA took over operations, Winco essentially existed only as a shell, its shareholders had abandoned the corporation and other entities ran the business, but Winco was not dissolved because of the pendency of Willet’s state court suit and “because it was convenient to allow Winco to remain a party to third party contracts that were serviced by Greenway Center.” (App. at 17.) By the time Maione sued Winco— after suing GCI and presumably realizing that she had mistakenly sued the wrong-defendant — the statute of limitations had run and her lawsuit against Winco was dismissed as time-barred. Essex defended Winco in that action. The persistent efforts to find GCI to be Winco’s successor appear to stem from Maione’s initial mistake in suing the improper defendant.
On June 28, 2000, GCI became the holder of the license to run the Center. Regardless of who was operating the facility, the Center was always known as the Greenway Center; its business did not change; it was always located on the same premises, and its letterhead and phone number did not change.
The District Court, applying Pennsylvania law, held that a de facto merger had occurred between Winco and GCI, such that GCI could take advantage of Essex’s insurance policy. In making that determination, the Court considered four factors set forth under Pennsylvania law for assessing a claim of de facto merger: “(1) continuity of ownership; (2) cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable; (3) assumption by the successor of liabilities ordinarily necessary for uninterrupted continuation of the business; and (4) continuity of the management, personnel, physical location, and the general business operation.” (App. at 15 (quoting Continental Ins. Co. v. Schneider, Inc., 810 A.2d 127, 135 (Pa.Super.Ct.2002).))
The Court held that the first factor, continuity of ownership, was met because HMA “had in effect been running Winco to the extent that it needed running” and the shareholders of HMA are identical to those of GCI. (App. at 19.) The Court found that the second factor, earliest practicable dissolution, weighed in favor of de facto merger because, even though Winco was never officially dissolved, “it has no shareholders, no business and does nothing.” (App. at 19.) The Court found that the third factor, assumption of liabilities necessary for continuation of business, weighed in favor of de facto merger because the Center’s contracts remained in Winco’s name but were carried out by HMA and GCI. Finally, the Court found that the fourth factor, continuity of management and general business operation, weighed in favor of merger because there was a continuity “in the physical location and general business operations of the Greenway Center” and a continuation of personnel to a certain extent. (App. at 20.) The Court accordingly entered declaratory judgment in favor of GCI, obligating Essex to defend and indemnify GCI in Maione’s wrongful death action based on its finding that a de facto merger had occurred.4 Essex timely appealed.
*352II. Discussion5
“We review a district court’s findings of fact following a bench trial under the clearly erroneous standard.” Am. Soc’y for Testing & Materials v. Corrpro Cos., Inc., 478 F.3d 557, 566 (3d Cir.2007). In contrast, we exercise plenary review over a district court’s legal conclusions. Id. Since this action is governed by Pennsylvania law, we must “apply existing state law as interpreted by the state’s highest court in an effort to predict how that court would decide the precise legal issues before us.” See Koppers Co. v. Aetna Cas. and Sur. Co., 98 F.3d 1440, 1445 (3d Cir.1996). If the highest state court has not spoken on the pertinent issue, we may look for guidance to, among other things, decisions of state intermediate appellate courts and decisions of federal courts interpreting that state’s law. Id.
The general rule in Pennsylvania is that, when one company sells all or substantially all of its assets to another company, the purchasing company is not liable as a successor. Continental Ins. Co. v. Schneider, Inc., 582 Pa. 591, 873 A.2d 1286, 1291 (2005). One exception to that rule occurs when the purchasing company is “merely a continuation of the selling corporation,” id. at 1291, also known as a de facto merger, Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 468 (3d Cir.2006) (noting that courts treat de facto merger and continuation identically). A de facto merger or mere continuation occurs when a new eor-poration is formed to acquire the assets of or take over a second corporation, which then ceases to exist. See Schneider, 810 A.2d at 134-35.
Again, as the District Court recognized, Pennsylvania law requires courts to consider the following four factors in determining whether a de facto merger has occurred between two entities, “(1) continuity of ownership; (2) cessation of the ordinary business by, and dissolution of, the predecessor as soon as practicable; (3) assumption by the successor of liabilities ordinarily necessary for uninterrupted continuation of the business; and (4) continuity of the management, personnel, physical location, and the general business operation.” Id. at 135; see also Berg Chilling, 435 F.3d at 468-69. In Berg, we explained that the first factor, continuity of ownership, is the most important factor in the analysis, and that the absence of any continuity of ownership therefore creates a “strong presumption against imposing successor liability.” 435 F.3d at 469. Recently, the Pennsylvania Superior Court confirmed that continuity of ownership is “a key element that must exist in order to apply the de facto merger doctrine, since in the absence of a transfer of stock for assets the consequence of the transaction is not the functional equivalent of a merger.” Fizzano Bros. Concrete Prods., Inc. v. XLN, Inc., 973 A.2d 1016, 1020 (Pa.Super.Ct.2009).6 “The objective *353of [the continuity of ownership] requirement is usually to identify situations in which shareholders of a seller corporation unfairly attempt to impose their costs or misdeeds on third parties by retaining assets that have been artificially cleansed of liability.” Berg, 435 F.3d at 469.
The District Court erred in concluding that a de facto merger occurred between GCI and Winco because there is no evidence of continuity of ownership. GCI never purchased, any of Winco’s assets and no stock was ever transferred from Win-co’s shareholders to GCI’s shareholders. Furthermore, Winco’s owners never participated in running the Center after it was closed in November 1997 and, importantly, were prohibited from doing so as a condition of the reopening of the Center under HMA’s management. The record does not show that the ownership of Winco passed to HMA in any fashion.
The District Court found a continuity of ownership between HMA and Winco “to a certain extent” because HMA ran “Winco to the extent that it needed running.” (App. at 19.) Presumably, the District Court was referring to the fact that HMA ran the Center after it reopened and carried out contracts to which Winco was still a party. That does not mean, however, that the officers and directors of HMA somehow became owners of Winco. And, to the extent that overlapping management is meaningful, none of Winco’s management played any role at all in the Center’s operation once it reopened. Accordingly, there was no continuity of ownership between Winco and HMA, and the fact that GCI and HMA share the same management is irrelevant.7
GCI asserts that the “gradual metamorphoses [where] the operations of [the Center] went from Winco to HMA to GCI over a course of time” establishes continuity of ownership. (Appellee’s Ans. Br. at 21.) Although it is true that HMA, and GCI thereafter, assumed operation of the Center, there was no continuity of ownership between Winco and HMA (and thus, GCI) — an important distinction. In the absence of a stock transfer, asset purchase, or any other evidence establishing that the owners of Winco became the owners of GCI, there is no basis for finding a continuity of ownership.
Although our conclusion is sufficient to preclude application of the de facto merger doctrine, see Fizzano, 973 A.2d at 1020 (concluding that “since there was no continuity of ownership, the de facto merger doctrine does not apply”), we also note that the remaining factors — earliest practicable dissolution of the predecessor, assumption by the successor of the necessary liabilities, and the continuity of the management and general operations — do not support a finding of de facto merger. First, regardless of whether Winco conducted any business, it was never dissolved and was capable of responding to the action Maione filed against it. Second, although GCI serviced several of Winco’s contracts, GCI did not purchase Winco’s service agreements or assume Winco’s liabilities. Finally, although the general business operations and physical location of the Center did not change under GCI’s ownership, the management was new and the personnel was, for the *354most part, different from personnel under Winco’s management. Taking the four factors together, we cannot conclude that GCI is a continuation of Winco and, thus, the District Court’s conclusion to the contrary was erroneous.8 Since GCI is not Winco’s successor, GCI cannot take advantage of Essex’s insurance policy on that basis.
III. Conclusion
No de facto merger or continuation occurred between GCI and Winco that would permit GCI to take advantage of Essex’s insurance policy as Winco’s successor. We must therefore vacate the District Court’s declaratory judgment and remand for further proceedings consistent with this opinion.
. The policy was issued on February 3, 1997 and had a term of one year.
. HMA, GCI, and Winco did, however, have the same attorney.
. Although the District Court did not expressly acknowledge this fact, it is apparent from the record and our prior opinion in this matter.
. The District Court rejected GCI’s other theories of recovery. Those issues are not before us on appeal.
. This case was removed to District Court pursuant to 28 U.S.C. § 1441. The District Court's jurisdiction was based upon diversity because the parties are citizens of different states — GCI is a citizen of Pennsylvania while Essex is a citizen of Delaware and Virginia and Maione and Willet are both citizens of New Jersey — and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. We have jurisdiction over this appeal based on 28 U.S.C. § 1291.
. In its supplemental brief, GCI claims that Fizzano is somehow irrelevant to our analysis, because Fizzano concerned an asset purchase while no asset purchase occurred in this case. Fizzano is the Pennsylvania Superior Court's latest pronouncement on the de facto merger doctrine, and its legal principles are applicable here even if there are factual differences in the cases. Indeed, GCI itself cites cases in its answering brief as applicable law on the issue which themselves concern asset purchases. Nor does Fizzano conflict with the *353Pennsylvania Superior Court's earlier decision in Schneider, 810 A.2d 127 (Pa.Super.Ct.2002). Instead, Fizzano clarified Schneider, explaining that Schneider emphasized “the importance of continuity of ownership in the de facto merger analysis.” Fizzano, 973 A.2d at 1021.
. GCI's reliance on the bankruptcy plan, which sought to transfer Winco’s stock to GCI, is misplaced, not least because there was no such transfer.
. At the end of its analysis, the District Court focused on the fact that “GCI maintained the insurance in Winco's name even when Winco was clearly doing nothing to operate the business.” Although it may have appeared equitable to the Court to permit GCI to recover insurance proceeds from Essex when GCI was running the Center, Willet's death took place in June of 1997, when Winco was running the Center. Furthermore, the insurance policy in question was issued to Winco for a term of one year, beginning on February 3, 1997. Accordingly, that particular policy would have expired before HMA — and certainly before GCI — began running the Center. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478351/ | OPINION OF THE COURT
CONNER, District Judge.
Yusuf Howard was convicted of one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), one count of carrying a firearm during or in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c), and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). After this Court vacated the sentence imposed by the District Court and remanded for Booker re-sentencing,1 he was re-sentenced to 240 months. Howard now challenges that sentence. We will affirm.
I.
Because we write primarily for the benefit of the parties, we recount the facts and procedural history only as they are relevant to the disposition of the case. After a traffic stop on April 26, 2003, police found in Howard’s pants a .38 caliber revolver and a pill bottle containing multiple packets of cocaine base with an aggregate weight of 3.618 grams. He was indicted and was subsequently tried and convicted for the above-described offenses. On September 9, 2004, Howard was sentenced to terms of 240 months imprisonment on the drug offense (Count I) and 262 months imprisonment for the felon-in-possession offense (Count III), which terms were to run concurrently. The District Court also imposed a consecutive sentence of 60 months on Count II, the offense of carrying a firearm in connection with a drug trafficking offense. Thus, the District Court imposed a total term of imprisonment of 322 months. We subsequently vacated his sentence and remanded the case. See United States v. Howard 248 Fed.Appx. 437 (3d Cir.2007). At the re-sentencing hearing, the District Court granted a downward variance based upon: (1) the less egregious circumstances of past convictions which qualified Howard as an armed career criminal, and (2) its finding that a sentence within the guidelines range — which called for 262 to 327 months’ imprisonment — would be greater than necessary. The District Court sentenced Howard to a total term of imprisonment of 240 months,2 a six-year term of supervised release, a fine of $500, and a special assessment of $300. Howard now appeals.
*356We have jurisdiction over Howard’s appeal pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C. § 1291. We review the reasonableness of the District Court’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the District Court’s findings of fact for clear error, and we exercise plenary review over its interpretations of law. United States v. Grier, 475 F.3d 556, 570 (3d Cir.2007).
II.
Howard argues that the District Court erred insofar as it failed to take into consideration further downward departures which were available and applied the sentencing guidelines too rigidly. He also contends that the District Court failed to justify its sentence in light of the factors provided in 18 U.S.C. § 3553, and the mandate to “impose a sentence sufficient, but not greater than necessary, to comply with” sentencing purposes.
Howard’s contentions are wholly without merit in that the District Court imposed the minimum sentence permitted under the applicable federal statutes. His suggestion that the District Court had the authority to impose a lesser sentence is incorrect. To the contrary, federal law mandated that the District Court impose, at an absolute minimum, a sentence of 240 months. See 18 U.S.C. § 924(c), (e). The District Court was unquestionably required to follow that mandate. Although Booker abolished the mandatory nature of the Sentencing Guidelines,3 it had no effect on the mandatory application of statutory minimum sentences. See, e.g., United States v. Doe, 564 F.3d 305, 314 (3d Cir.2009) (“The Guidelines are no longer mandatory, but that does not render optional statutory directives.” (quoting United States v. Wise, 515 F.3d 207, 220 (3d Cir.2008)) (internal quotation marks omitted)), United States v. Williams, 464 F.3d 443, 449 (3d Cir.2006) (upholding the application of a statutory mandatory minimum sentence for a conviction of possession of a firearm, and declining to remand that conviction for Booker re-sentencing). Our enforcement of statutory minimum sentences as mandatory directives is entirely consistent with the decision of the Supreme Court in Kimbrough v. United States, 552 U.S. 85, 104-05, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (holding that, although sentencing courts are not required “to adhere to the 100-to-l ratio” for quantities of cocaine base as a general rule, they must do so in cases that implicate “the statutory mandatory minimum sentences”). Our decision is also supported by other circuits that have addressed this issue. See United States v. Bermudez, 407 F.3d 536, 545 (1st Cir.2005); United States v. Sharpley, 399 F.3d 123, 127 (2d Cir.2005); United States v. Groce, 398 F.3d 679, 682 n. 2 (4th Cir.2005); United States v. Farias, 481 F.3d 289, 291-92 (5th Cir.2007); United States v. Franklin, 499 F.3d 578, 584 (6th Cir.2007); United States v. Lee, 399 F.3d 864, 866 (7th Cir.2005); United States v. Freemont, 513 F.3d 884, 890 (8th Cir.2008); United States v. Hernandez-Castro, 473 F.3d 1004, 1007 (9th Cir.2007); United States v. Harris, 447 F.3d 1300, 1307 (10th Cir.2006); United States v. Shelton, 400 F.3d 1325, 1333 n. 10 (11th Cir.2005). In sum, the District Court’s application of the statutory minimum sentence was entirely proper.
*357in.
For the reasons stated above, we will affirm the sentence imposed by the District Court.
. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (holding that the U.S. Sentencing Guidelines Manual should be applied as advisory, not mandatory, guidance).
. The District Court sentenced Howard to 70 months imprisonment for Count I, and 180 months for Count III, to run concurrently, followed by a consecutive term of 60 months for Count II. The term of 180 months on Count III is the statutory minimum, because Howard's previous convictions triggered the 15-year minimum term under the Armed Career Criminal Act. See 18 U.S.C. § 924(e). The Act also mandates a five-year minimum term of imprisonment for Count II, which must run consecutive to any other term of imprisonment. See 18 U.S.C. § 924(c).
. The Court notes that the application of the Sentencing Guidelines remains mandatory in certain contexts not relevant to the instant case. See United States v. Doe, 564 F.3d 305 (3d Cir.2009) (holding that the Sentencing Guidelines are binding in sentence modification proceedings under 18 U.S.C. § 3582(c)(2)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478353/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
This case is before us on appeal following the District Court’s grant of summary *358judgment in favor of Appellees Carpenter, Bennett & Morrissey (“CBM”) and denial of Appellants Mark A. Speeney, David M. Oestreicher and Adriana Greci Green’s motion to disqualify CBM from representing Rutgers University. The District Court held an evidentiary hearing to decide Appellants’ motion for disqualification and made certain findings of fact. The District Court’s subsequent grant of summary judgment was based on its application of those factual findings to Appellants’ legal malpractice and breach of a fiduciary duty/eonstructive trust claims. The District Court held that the law of the case doctrine prevented its factual findings from being relitigated. Because Appellants did not have a full and fair opportunity to litigate their malpractice and breach of fiduciary duty claims, and because the District Court did not properly consider the new evidence Appellants presented at the summary judgment stage, we find that the law of the case doctrine does not apply. We will therefore vacate the District Court’s order and remand for further proceedings.
BACKGROUND
Appellants are alleged victims of sexual harassment by a former Rutgers professor, William Powers, who has since been de-tenured. CBM was initially retained to represent Rutgers in connection with Powers’ de-tenure hearing and to defend Rutgers against a federal lawsuit brought by Powers. Appellants believed they had an attorney-client relationship with CBM and that CBM would be representing their interests in the tenure hearings. Appellants’ Br. 6. In June 1998, Rutgers and Powers settled the internal dismissal proceedings and Powers’ claim against Rutgers, but Appellants were not consulted regarding settlement negotiations.
In 1999, Appellants filed suit against Rutgers, Powers, CBM, and other defendants in the Superior Court of New Jersey. This action was removed to the District Court for the District of New Jersey and assigned to Judge John W. Bissell. Appellants were displeased with Rutgers’ resolution of the Powers matter without consulting them and alleged that CBM and Appellants had an attorney-client relationship and that CBM breached its duty to them as clients, or, in the alternative, that CBM breached a fiduciary duty to Appellants as well as their ethical obligations by not complying with N.J. Rules of Professional Conduct.
On September 29, 2003, Judge Bissell granted CBM’s first motion for summary judgment on Appellants’ claims of breach of the Rules of Professional Conduct (not appealed) and legal malpractice, but denied this motion as to their constructive trust/breach of fiduciary duty claim. Judge Bissell also bifurcated Appellants’ claims against CBM from their claims against Rutgers and stayed all discovery against CBM until Appellants’ claims against Rutgers and Powers were resolved because of the difficulty in determining damages before the underlying action was resolved. On July 15, 2004, after the parties filed cross-motions for reconsideration, Judge Bissell reinstated Appellants’ malpractice claim due to genuine issues of material facts. In January 2005, Appellants brought a motion to disqualify CBM as counsel for Rutgers based on a conflict of interest between CBM and Appellants. Appellants maintained that they had an attorney-client relationship with CBM. On March 8, 2005, Judge Bissell held that he could not rule on Appellants’ motion to disqualify CBM before conducting an evi-dentiary hearing to determine if there was an actual or implied attorney-client relationship between CBM and Appellants.
*359The case was then transferred to Judge Dennis M. Cavanaugh who held an eviden-tiary hearing to determine if CBM and Appellants had an express or implied attorney-client relationship on January 23 through January 26, 2006. On January 27, 2006, Judge Cavanaugh denied Appellants’ motion to disqualify finding that there was no actual or implied attorney-client relationship between CBM and Appellants and that Appellants were merely witnesses in the dismissal proceedings against Powers. CBM then moved for summary judgment on Appellants’ constructive trust/breaeh of fiduciary duty and malpractice claims. On November 9, 2006, Judge Cavanaugh granted CBM’s summary judgment motion based on his factual findings from the evi-dentiary hearings regarding the relationship between CBM and Appellants. On February 9, 2007, Judge Cavanaugh denied Appellants’ motion for reconsideration of his summary judgment decision and their motion for certification as a final judgment or for interlocutory appeal.
Appellants subsequently settled their claims with all other defendants. They appeal the District Court’s grant of summary judgment as to their attorney malpractice and breach of a constructive trust/fiduciary duty claims as well as the District Court’s denial of their motion to disqualify CBM from serving as Rutgers’ counsel.
DISCUSSION1
The Law of the Case
The District Court held an evidentiary hearing on Appellants’ motion to disqualify CBM from representing Rutgers to determine if Appellants’ reasonable reliance on CBM created an implied attorney-client relationship. After finding that the Appellants did not reasonably believe that CBM was acting as then* attorney and therefore that no express or implied attorney-client relationship existed, the District Court denied the motion to disqualify.2
In its summary judgment ruling, the District Court held that its previous determination that Appellants did not reasonably rely on CBM as their attorney was the law of the case. The law of the case doctrine states that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); see also Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster-Wheeler Energy Corp., 26 F.3d 375, 396-97 (3d Cir.1994) (factual decisions explicitly reached or reached by necessary inference become the law of the case if not contested on appeal).
The law of the case doctrine “limits relit-igation of an issue once it has been decided” in an earlier stage of the same litigation. In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir.2002). We apply the doctrine with the intent that it will promote finality, consistency, and judicial economy. In re City of Philadelphia Litig., 158 F.3d 711, 717-18 (3d Cir.1998).
Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir.2003).
The law of the case doctrine is not a restriction on the court’s power, but is a discretionary doctrine. City of Phila., 158 F.3d at 718. Because the District Court previously found that there was no reasonable reliance and reasonable reliance is an *360element of Appellants’ legal malpractice and fiduciary duty/breach of constructive trust claims,3 the Court held that under the law of the case doctrine these claims could not survive summary judgment. A jury verdict cannot stand if there is no possible way for it to be reconciled with the law of the case.4 See Bolden v. Se. Pa. Transp. Auth., 21 F.3d 29, 30-31 (3d Cir.1994).
A. Full and Fair Opportunity to Litigate
The law of the ease doctrine only precludes relitigation of issues that the parties had a full and fair opportunity to litigate. Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 219 (2d Cir.2002); see also Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 203, n. 13 (3d Cir.2004). Appellants contend that they did not have a full and fair opportunity to litigate the merits of their legal malpractice and breach of a fiduciary duty claims during the evidentiary hearing on the motion for disqualification.
At the beginning of the evidentiary hearing on the motion to disqualify, Judge Cavanaugh explicitly told counsel that the hearing was not a trial of the merits of Appellants’ claims and was limited to the issue of disqualification:
[Tjhis is an evidentiary hearing just on this issue of disqualification ... We’re going to have the hearing on the disqualification only.... So to the extent that people think that this is going to be a trial of the case, it is not.... This is going to be a limited hearing on the issue as Judge Bissell suggested or directed.
Transcript at 25.
Furthermore, Appellants’ lawyer stated at the end of the hearing that if he had been trying to prove his malpractice case there would have been other discovery he would have pursued and that he had not “endeavored to meet that burden of proof.” Transcript at 757-58. Appellants’ lawyer stated:
*361Were I attempting to prove, let’s say, my malpractice case, there would have been other discovery I would have pursued and things like that; but at this time, I just want to make it clear that I have not had all the discovery that I would expect to have by the time the malpractice case is tried.
Id.
Judge Cavanaugh replied “No. Well, correctly: you weren’t supposed to. So I wasn’t expecting you to do that.” Id.
It is clear that Appellants did not have a full and fair opportunity to litigate the merits of their malpractice and breach of fiduciary duty claims, including the reasonable reliance element, during the eviden-tiary hearing on the motion to disqualify. Therefore, these claims are not barred by the law of the case doctrine.
B. New Evidence
Additionally, there is an exception to the law of the case doctrine when new evidence is presented. We explore it here to provide guidance. We have said:
Reconsideration of a previously decided issue may, however, be appropriate in certain circumstances, including when the record contains new evidence. [City of Philadelphia Litig., 158 F.3d] at 718; Bridge v. United States Parole Comm’n, 981 F.2d 97, 103 (3d Cir.1992). This exception to the law of the case doctrine makes sense because when the record contains new evidence, “the question has not really been decided earlier and is posed for the first time.” Bridge, 981 F.2d at 103. But this is so only if the new evidence differs materially from the evidence of record when the issue was first decided and if it provides less support for that decision. City of Philadelphia Litig., 158 F.3d at 720. Accordingly, if the evidence at the two stages of litigation is “substantially similar,” or if the evidence at the latter stage provides more support for the decision made earlier, the law of the case doctrine -will apply. Id.
Hamilton, 322 F.3d at 787.
Appellants claim that they were unable to present certain facts at the evidentiary hearing because the District Court had stayed all discovery relating to their claims against CBM until their claims against Rutgers were complete. App. 436-41. Appellants submitted a Rule 56(f) Certification 5 to the District Court detailing their inability to present certain facts to oppose CBM’s summary judgment motion.6 App. 434-575. The District Court did not mention the Rule 56(f) certification at all in ruling on summary judgment.
Appellants argue that there was new evidence that they were unable to present at the disqualification hearing,7 which cre*362ates an exception to the law of the case doctrine. In its summary judgment opinion, the District Court determined that Appellants’ new evidence did not compel reconsideration of the Court’s order denying disqualification, but did not explicitly address what the new evidence was or why it was not persuasive. The District Court did not consider whether this new evidence compelled an exception to the law of the case doctrine and instead considered it only in the context of Appellants’ motion to reconsider the disqualification decision:
While Plaintiffs point to “new” evidence that requires reconsideration of the disqualification hearing, it is not apparent that this evidence was not previously unavailable or that this “new” evidence compels reconsideration of this Court’s January 30, 2006 Order. Specifically, Plaintiffs point to documents that, they claim, reveal that CBM considered themselves to be representing Plaintiffs. Plaintiffs argue that these documents thereby show that Plaintiffs were reasonable in their belief that CBM represented their interests. This argument is not persuasive and disregards the fact that this Court has already determined after an exhaustive hearing that any belief held by Plaintiffs that the CBM Defendants represented them was unreasonable.
App. 96.
The District Court considered the new evidence presented by Appellants only in the context of a motion for reconsideration of the disqualification motion, and not in the context of its determination as to whether the law of the case doctrine should apply. The District Court should have determined whether the new evidence was “substantially similar” to the evidence presented at the evidentiary hearing and, accordingly, whether the law of the case doctrine should apply. If the new evidence was materially different from that presented at the disqualification hearing, the law of the case doctrine would not apply and there would be a genuine issue of material fact as to whether CBM and Appellants had an implied attorney-client relationship.
In light of the foregoing, we will VACATE the order of the District Court and REMAND for further proceedings.
. The District Court had jurisdiction under 28 U.S.C. § 1331 and we have jurisdiction under 28 U.S.C. § 1291.
. Appellants also appeal this ruling but in light of the fact that Appellants ’ have since settled their case against Rutgers, the issue of whether CBM should have been disqualified from representing Rutgers is now moot.
. "[A] member of the bar owes a fiduciary duty to persons, though not strictly clients, who he knows or should know rely on him in his professional capacity.” Albright v. Burns, 206 N.J.Super. 625, 503 A.2d 386, 389 (1986).
. Appellants rely largely on Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990), a case in which the Court held that — although "an equitable determination can have collateral-es-toppel effect in a subsequent legal action and that this estoppel does not violate the Seventh Amendment,” id. at 550-51, 110 S.Ct. 1331 (emphasis in original) — the Seventh Amendment precludes according collateral estoppel effect to a district court's determination of issues common to equitable and legal claims where equitable and legal claims are brought in the same action and the district court improperly dismissed the legal claims. Id. at 555, 110 S.Ct. 1331 ("We decline to extend Parklane Hosiery Co., supra, and to accord collateral-estoppel effect to a district court’s determinations of issues common to equitable and legal claims where the court resolved the equitable claims first solely because it erroneously dismissed the legal claims. To hold otherwise would seriously undermine a plaintiff’s right to a jury trial under the Seventh Amendment.”). Here, however, the District Court did not mistakenly take up equitable claims that would cut off legal claims that should go to a jury. Instead, the District Court took up, at the Appellants’ own insistence, the Appellants’ own motion to disqualify CBM. The Appellants filed the motion presumably knowing that the question of whether an attorney-client relationship existed between CBM and the Appellants was central to both the disqualification motion and to their malpractice claim. Hence, since the Appellants themselves made the pre-trial motion to disqualify CBM as Rutgers' counsel, knowing that this would require a judicial determination of whether there was an express or implied attorney-client relationship between CBM and Appellants, the present case is clearly distinguishable from Lytle.
. "Rule 56(f) of the Federal Rules of Civil Procedure gives the district court discretion to defer ruling on a summary judgment motion when a party opposing summary judgment files an affidavit indicating that it needs more discovery." Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir.1989). Rule 56(0 requires a party to explain its need for discovery, what material facts it hopes to discover, and why it has been unable to discover the information. Id. at 1393-94.
. In their Rule 56(0 certification Appellants claim that the discovery stay prevented them from subpoenaing Powers’ attorney, taking longer depositions of witnesses who testified at the disqualification hearing (only limited four-hour depositions were allowed), and looking over the privilege log from Rutgers to determine which additional documents were necessary and discoverable. App. 436-37.
.According to Appellants, new evidence presented at the summary judgment stage that was not presented during the hearing on the motion to disqualify included settlement correspondence between CBM and Powers as well as deposition testimony. (Reply Br. 6-7, citing Appellants’ Br. 14-20). In particular, Appellants contend that the settlement corre*362spondence between CBM and Powers’ attorney demonstrated that CBM made settlement demands that would benefit Appellants and might have been harmful to Rutgers’ interests. Appellants also contend that a CBM attorney wrote to Powers' attorney that she was authorized by "my clients” to negotiate a settlement “of the disciplinary proceedings, commenced by the filing of written complaint, dated May 23, 1994, by Adriana Greci Green.” App. 449-461, 462-63, 494-509. Appellants argue that CBM could not possible settle Green’s complaint unless they represented Green. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478355/ | OPINION
SLOVITER, Circuit Judge.
James Leath, convicted by a jury in 1994 of conspiracy to distribute more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 846, was sentenced to life imprisonment. In 2008, Leath filed a motion to modify his sentence based on Sentencing Guidelines Amendment 706 (effective November 1, 2007), which retroactively lowered base offense levels for certain crack cocaine offenses. Leath appeals the District Court’s denial of that motion.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo Leath’s eligibility for a reduction of sentence. See United States v. Sanchez, 562 F.3d 275, 277-278 (3d Cir.2009).
Leath’s counsel filed an Anders brief and Leath, as permitted in Anders cases, filed a pro se brief. Under Anders v. California, if, after review of the district court record and a conscientious investigation, counsel is convinced the appeal presents no issue of arguable merit, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. 386 U.S. 738, 741-42, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellate counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). “The Court’s inquiry when counsel submits an Anders brief is thus twofold [to determine]: (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2’s] requirements^] and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
At Leath’s February 25,1994 sentencing hearing, the District Court found Leath responsible for distributing “more than” 84 kilograms of crack cocaine, resulting in a base offense level of 42 under then-applicable Sentencing Guidelines. App. at 7. The District Court then applied a nine-level enhancement: “one level for drug trafficking activity near a school, two levels for possession of a gun during drug trafficking activity, two levels for threatening to kill the mother of a witness against him, and four levels for his role in the offense,” for a total offense level of 51 and criminal history category of IV. App. at 7. The District Court sentenced Leath to life imprisonment under the Guidelines.
In 1996, Leath moved for a reduction of sentence based on Sentencing Guidelines Amendment 505. Although Amendment 505 reduced Leath’s base offense level from 42 to 38 under § 2Dl.l(c)(l), the nine-level enhancement yielded a total offense level of 47, resulting in a Guidelines sentence of life imprisonment. The District Court denied the motion.
*364In 2007, to address sentencing disparities between offenses for powder cocaine and crack cocaine, Sentencing Guidelines Amendment 706 reduced by two levels the base offense levels for certain crack cocaine offenses. See U.S.S.G. § 2Dl.l(c), App. C, Amend. 706 (2007). Based on this amendment, Leath sought modification of his sentence under 18 U.S.C. § 3582(c)(2), which provides:
The court may not modify a term of imprisonment once it has been imposed except that ... in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28[§ ] U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2) (emphasis added). The District Court denied relief because Leath’s offense involved 84 kilograms of crack cocaine, a quantity unaffected by Amendment 706. The District Court held that Leath’s term of imprisonment was not based on a sentencing range lowered by the Sentencing Commission.
Although Leath’s counsel recognizes that Leath is ineligible for relief under 18 U.S.C. § 3582(c)(2), he has nonetheless made the admirable effort to consider every possible approach. First, counsel argues that “sentencing range,” as used in § 3582(c)(2), refers “not to the span of months prescribed for any single defendant, but rather to the spectrum of ranges yielded by application of a guideline to all defendants.” Appellant’s Br. at 15. However, counsel correctly notes that this interpretation is foreclosed by the definition of “Guideline Range” in Sentencing Guidelines. See U.S.S.G. Ch. 5, Pt. A, Commentary n. 1. Second, counsel argues that “district courts need not defer to the Commission’s identification of the 4.5-kilogram limit.” Appellant’s Br. at 17. However, counsel concedes this position is not supported by authority. Third, counsel argues that “the Commission’s adoption of the 4.5-kilogram limitation is arbitrary and thus violates the Commission’s enabling legislation.” Appellant’s Br. at 18-19. However, counsel concedes that § 3582(c)(2) is not the vehicle to challenge the Commission’s sentencing determinations. Fourth, counsel argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the District Court’s drug quantity finding of 84 kilograms should have been decided by the jury. However, counsel concedes that if Apprendi and its progeny are declared l-etroactive by the Supreme Court, then “it would be necessary for Mr. Leath to seek relief via motion under 28 U.S.C. § 2255 and/or any other appropriate mechanism.” Appellant’s Br. at 22.
Although we commend the Federal Defender’s Office for its efforts and creativity, Leath is not entitled to relief for the reasons stated by his counsel. We will accept the Anders brief, grant counsel’s motion to withdraw, deny Leath’s motion for appointment of new counsel, and affirm the District Court’s order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478362/ | OPINION
PER CURIAM.
Petitioner Melvin Petersen, a prisoner proceeding pro se, seeks a writ of mandamus compelling the District Court to rule on his motion for resentencing pursuant to 18 U.S.C. § 3582.
Petersen filed his first petition for a writ of mandamus in July 2009, arguing that the District Court had not acted on his motion for rescheduling. We denied the *374petition as moot after the District Court appointed counsel and scheduled resen-tencing for October 7, 2009. Petersen was unable to attend as directed. He then filed a motion to reschedule resentencing, on November 6, 2009, and a second motion for resentencing, on December 15, 2009.
Petersen filed this (his second) mandamus petition on February 3, 2010. By an order entered on February 4, 2010, 2010 WL 481419, the District Court granted Petersen’s motion for resentencing and reduced his sentence from 240 months to 151 months. Because Petersen has now received the relief he sought in filing his mandamus petition, we will deny this mandamus petition as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478364/ | OPINION OF THE COURT
LOURIE, Circuit Judge:
Hua Lan An, a citizen of the People’s Republic of China, petitions for review of a *375final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We defer to the IJ’s factual determination, sustained by the BIA, that An’s testimony was not credible based on several perceived inconsistencies and will deny the petition for review.
I. BACKGROUND
An entered the United States in late November 2004 and submitted an application for asylum in November 2005. In her application, An stated that she had taken in and cared for a North Korean woman she found in the street, who had been injured during her escape across the border. “Several days later,” the woman was taken away by the police. An was told by her husband that a neighbor had informed him that she had been reported for keeping a smuggler in her house, and that the police were looking for her. An hid with relatives, and was told by her husband that “several” police officers came to the house “several” times. She then fled to the United States. In a phone conversation, her husband told her that the police had gone to the house “several” times looking for her. She also stated that the police had found an anti-Communist book, entitled “The Nine Criticisms towards the Communist Party” that she had sent to her husband.
For corroborating evidence, An included letters from her mother, husband, and uncle, in addition to newspaper articles with photos depicting her participation in various anti-Communist demonstrations.
At her hearing before the IJ, An testified that the North Korean woman had stayed in their home for 27 days. In response to the IJ’s question as to why An’s statement did not specify 27 days, but instead said “several,” An responded “I don’t remember.” The IJ also asked about An’s husband’s statement, which indicated that it had been “a couple of days,” and responded to the IJ’s question as to whether it was consistent with her testimony by saying that it was “[pjretty much the same.”
An also testified that her husband had said the police initially visited their home every other week, that later the visits were about once a month, and that at the time, “sometimes they come every month.” When questioned about the specific number of times the police had come, An stated “I didn’t specifically mean they come every month. Sometimes they came once every month, and sometimes they stop for a few months.” An also testified that her neighbor had told her husband that the police had shown him a warrant for An’s arrest. She was asked for evidence and, on the following day of her hearing, An submitted a letter from her neighbor in China stating that the police had shown the neighbor a warrant for An’s arrest.
At the conclusion of the two-day hearing the IJ found An’s testimony was not credible. Central to the IJ’s adverse credibility determination was the inconsistency between An’s statement that the North Korean woman stayed with her for “several” days, her testimony that it was 27 days, and the statements of her uncle and husband that it was “a couple” of days. In addition, the IJ identified other bases for the adverse credibility determination. Specifically, An produced a letter from her neighbor who had seen the arrest warrant, although she had testified that it had “been a while” since she had spoken to her neighbor. Also, An’s statement said she was “perceived to be a smuggler,” whereas she testified that she considered herself to be a good Samaritan. The IJ found problematic An’s explanation that the police were uninterested in her husband because *376he placed all the blame on her and because of her testimony that her husband had not explained this in his statement because he was afraid it would lead to marital problems. The IJ also found An’s testimony regarding the frequency of police visits to be inconsistent. Lastly, the IJ found that An had not produced sufficient evidence to show that the Chinese government is aware of her involvement in anti-government protests in the United States.
As a result of his adverse credibility determination, the IJ determined that An had not presented sufficient evidence to meet her burden of proving past persecution or a well-founded fear of future persecution in order to qualify for asylum. The IJ also found unsupported An’s alternate ground to support a claim of political persecution, based on her protests against the Chinese government while in the United States, because she is not identifiable in any photos in which she’s shown protesting and has not authored any articles or otherwise made herself identifiable. The IJ found that An did not present evidence that she more likely than not would face torture if she returned to China, and that she was therefore not entitled to protection under CAT.
On appeal, the BIA adopted the IJ’s adverse credibility determination, based on the inconsistencies cited by the IJ. The BIA specifically noted the inconsistencies as to the number of days the North Korean woman stayed in An’s home and the frequency of police visits in affirming the decision of the IJ.
An timely petitioned for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
II. DISCUSSION
In order to be granted asylum, An must show that she cannot return to China “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A); Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004). An applicant may establish such a fear by showing past persecution, Kibinda v. Atty. Gen., 477 F.3d 113, 119 (3d Cir.2007), or by showing a subjective fear of future persecution and an objectively reasonable possibility of suffering such persecution. Chukwu v. Att’y Gen., 484 F.3d 185, 188 (3d Cir.2007). To show eligibility for withholding of removal, An must demonstrate a clear probability that her life or freedom would be threatened on account of one of the protected grounds. 8 C.F.R. § 1208.16(b); Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005). An applicant who fails to prove eligibility for asylum “perforce fails to show entitlement to withholding of removal.” See Chukwu, 484 F.3d at 188-89 (3d Cir.2007).1
We review the decision of the Board of Immigration appeals. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ where the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the BIA’s findings of fact for substantial evidence, and must uphold its determinations “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).2
An argues that there was no inconsistency between her written statement that the *377North Korean woman stayed in her home for “several” days, her testimony that the stay was 27 days, and her husband and uncle’s written statements which described the length of time as a “couple” of days. She argues that the terms “several” and “a couple” are open to interpretation, and notes that the same translator prepared statements for her husband and uncle, and may have had a particular understanding of the term. An also argues that because she was caring for the woman, her husband and uncle had no personal knowledge of the length of stay. As to her prior statement that the stay had been “several” days, An argues that the term is not inconsistent with 27 days, and that to the extent “several” was ambiguous, she had believed she could be more specific during her hearing. An argues that the testimony she gave showed confusion, not evasion.
An also argues that the BIA improperly found inconsistency regarding her statements on the frequency of police visits to her home. Her testimony that the police initially came every other week, and then once a month, and then “sometimes they come every month” was followed by testimony that sometimes the police came every month and sometimes they stopped for a few months. An contends that the later statement explained the initial statement. An also argues that the other alleged inconsistencies upon which the IJ relied were adequately explained. Specifically, she argues that there is no real inconsistency between her statement that she was wanted for smuggling and her testimony that she was harboring a North Korean woman, because the first involves the perception of her and the second involves what she perceived herself to be doing. An further asserts that her husband was not of interest to the police because he blamed the entire event on her, as she explained in her testimony, and that there is no inconsistency as her husband simply did not mention this in his letter.
The government argues that the record evidence does not compel the conclusion that An was credible, and that therefore we are bound to affirm. The government states that the inconsistency between the terms “a couple,” “several,” and the precise number 27 would alone allow for an adverse credibility determination, but also relies on contradictory testimony regarding the frequency of police visits relied upon by the BIA. The government also points out the additional inconsistencies noted by the IJ, such as whether An was in trouble for smuggling or for harboring a North Korean woman, her testimony as to why the police were not interested in her husband, and when and how the police discovered the book that An sent her husband.
We agree with the government. The record before us may well have supported an alternative finding, if that had been the IJ’s determination. However, we cannot say that any reasonable adjudicator would be compelled to conclude that An was credible. See Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); see also 8 U.S.C. § 1252(b)(4)(B). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001) (citation omitted), and substantial evidence exists to support the determination below. Although the terms “several” and “a couple” both can relate to small numbers, a term of 27 days is quite different, and thus the IJ could reasonably have determined that An’s testimony was inconsistent and therefore not credible.3 Her testimony regarding the *378frequency of police visits is at the very least imprecise, and in conjunction with the IJ’s concern that her husband’s letter did not mention continuing visits, also supports the IJ’s conclusion as to credibility. This evidence highlighted by the BIA, when taken in concert with the IJ’s other concerns, sufficiently supports the IJ’s adverse credibility finding.
Because of the adverse credibility findings, An is thus unable to demonstrate past persecution or a well-founded fear of future persecution, as required for the grant of asylum. In addition, because An did not satisfy the standard for asylum, she cannot satisfy the higher standard of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991).
While we are sympathetic to the situation of someone in the position in which An claims to find herself, and recognize the difficulties in use of precise language by a person whose native language is not English, or in speaking through a translator, we are bound by the credibility findings below and the required standard of review. The Board looked carefully at the IJ’s findings and concluded that they were supported.
III. CONCLUSION
For the foregoing reasons, we deny An’s petition for review.
. An includes her claim under the CAT in this appeal, but does not present any argument regarding the BIA's CAT determination. We therefore consider this argument to be waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
. The IJ's credibility determination, pursuant to the REAL ID Act, was made "without regard to whether an inconsistency, inaccuracy, or falsehood [went] to the heart of the applicant’s claim.” 8 U.S.C. § 115S(b)(l)(B)(iii).
. See Merriam-Webster's Online Dictionary (defining “several” as alternatively “more than one,” "more than two but fewer than *378many,” and “being a great many,” but defining “couple” as "an indefinite small number”), available at http://www.merriam-webster.com/dictionary. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478366/ | OPINION
PER CURIAM.
Appellant Russell Tinsley appeals from the order of the United States District Court for the Eastern District of Pennsylvania granting Defendants’ motion for summary judgment. We will affirm.
I.
In June 2005, Tinsley filed a pro se civil rights complaint under 42 U.S.C. § 1983 against several current and former Philadelphia Prison System (“PPS”) officials and employees alleging that they denied him access to the courts. After the District Court appointed counsel to represent him, Tinsley filed an amended complaint pursuant to § 1983 against Leon King (then-Commissioner of PPS); Louis Gior-la (then-Warden of Curran-Fromhold Correctional Facility (“CFCF”)); CFCF Deputy Warden Osie Butler; CFCF Correctional Officer Wheeler; CFCF Correctional Officer Lorenzo North; Rodney Brockenbrough (then-Warden of Philadelphia Industrial Correction Center (“PICC”)); PICC Sergeant Nakia Cuffee; PICC Lieutenant Carol Knight; and PICC Lieutenant Deurward Spellman.
In the amended complaint, Tinsley alleged that he suffered various violations of his constitutional rights, beginning in March 2005, while he was in custody at both CFCF and PICC. Specifically, Tins-ley raised the following claims in the amended complaint: (1) inadequate access to the prison law library in violation of the Fourteenth Amendment; (2) denial of legal correspondence in violation of the First Amendment; (3) seizure of legal papers in violation of the Fourth Amendment; (4) retaliation for exercising his constitutional rights in violation of the First and Fourteenth Amendments; and (5) cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Tinsley primarily argues that he was denied reasonable access to the law libraries at both facilities, prohibiting him from adequately preparing for his state criminal case. Specifically, he complained that because he has been representing himself in his criminal action, he should have been given daily access to the law library, total*380ing at least fifteen to twenty hours per week. Although the record indicates that Tinsley signed into the law library fifty-two times from March 2005 through November 2005, he alleges that Defendants denied him access on numerous occasions, even after he signed in. However, at his deposition, Tinsley was unable recall the exact number of times that he was denied library access despite having signed in.
In November 2005, Tinsley was hired as a law library trainee at PICC. In that position, he was assigned to the library five days each week for approximately five hours per day. Although Tinsley claimed that during that time he assisted other inmates and did not work on his own case, Defendant Spellman testified that he fired Tinsley in February 2006 because he was not helping other inmates with their cases and he failed to perform his duties in the library. One week after Tinsley was fired at PICC, he was transferred back to CFCF.
In March 2006, Tinsley’s law library and legal mailing privileges were revoked pursuant to an order entered by the Court of Common Pleas of Philadelphia County. In August 2006, the Court vacated its earlier order and reinstated Tinsley’s law library and legal mailing privileges. Tinsley claims that even after his privileges were reinstated, he was not granted adequate access to the law library at CFCF. Tinsley also alleged that Defendants engaged in at least six instances of retaliation against him during his time at CFCF and PICC as a result of his complaining about lack of library access as well as his filing of grievances against officials who denied him access.
At the close of discovery, Defendants moved for summary judgment on all of Tinsley’s claims. After reviewing the parties’ arguments, the District Court determined that no genuine issues of material fact exist with respect to Tinsley’s § 1983 claims, and granted Defendants’ motion for summary judgment. Tinsley filed a timely appeal of the District Court’s determination.1
II.
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s decision to grant summary judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995). However, a party opposing summary judgment “must present more than just ‘bare assertions, conelusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005).
III.
Access to Courts Claim
First, the District Court properly concluded that Tinsley was unable to set forth facts demonstrating that he sustained an actual injury as a result of the *381alleged denial of access to the law libraries at CFCF and PICC. As mentioned, Tins-ley alleged that Defendants’ failure to grant him a reasonable amount of time in the law libraries at CFCF and PICC— according to Tinsley, fifteen to twenty hours per week — violated his right of access to the courts.
Prisoners have a fundamental right to access the courts. Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). However, a prisoner making an access-to-courts claim is required to show that the denial of access caused actual injury. Id. at 352-54, 116 S.Ct. 2174. Actual injury occurs when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim was lost because of the denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002).
We agree with the District Court that Tinsley failed on summary judgment to show any “actual injury” resulting from the alleged denial of his right to access the law libraries at both facilities. Tinsley, in his deposition, could not point to any missed deadlines that resulted in a “loss or rejection of a legal claim.” See Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir.1997). In addition, he could not point to any specific deadline missed or any prejudice that he suffered as a result of prison officials’ alleged actions. In fact, the record shows that access to the law libraries at CFCF and PICC enabled Tinsley to initiate two civil actions in the District Court and file numerous motions in his criminal action in the Court of Common Pleas. Accordingly, the District Court properly granted summary judgment on this claim.
Retaliation Claim
We also agree with the District Court that there is no genuine issue of material fact regarding Tinsley’s retaliation claim. As mentioned earlier, Tinsley argued that Defendants retaliated against him in various ways for filing grievances against them for denying him access to the law libraries at CFCF and PICC.
To show retaliation, a prisoner must demonstrate that he was engaged in constitutionally protected conduct, that the prison officials caused him to suffer “adverse action,” and that his constitutionally protected conduct was a motivating factor in the officials’ decision to discipline him. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir.2002) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001)). However, prison officials may still prevail by proving that they would have made the same decision even if the prisoner was not engaging in constitutionally protected conduct. Id. The District Court appropriately concluded that Tinsley is unable establish a genuine issue of material fact regarding the third step of the Carter analysis, i.e. causation.
Tinsley alleged that Defendants engaged in a series of retaliatory acts in response to his filing of grievances against them, including transferring him from CFCF to PICC, verbally threatening him, firing him from the PICC library, and refusing to hire him at the CFCF library. However, Tinsley did not set forth evidence suggesting that these alleged retaliatory acts were somehow motivated by his reporting their refusal to grant him access to the library.
For example, although Tinsley claims that he was transferred from CFCF to PICC for having filed grievances against Defendants Wheeler and North and for filing his lawsuit in the District Court, he fails to identify who actually transferred him, who at CFCF possessed the authority to transfer him, or that such person was aware of the grievances filed against Defendants Wheeler and North. Furthermore, there is no evidence to suggest that the transfer constituted an “adverse action.” Rauser, 241 F.3d at 333.
*382Likewise, although Tinsley alleges that Defendants Spellman and Knight fired him from his position at the PICC library based on his history of filing grievances, both Spellman and Knight testified at their depositions that they were unaware that Tinsley filed any grievances against prison officials. Likewise, Tinsley admitted at his deposition that he could only infer that Knight and Spellman had prior knowledge about his filing of grievances before they fired him. Accordingly, we agree with the District Court that Tinsley was unable to set forth evidence that his filing of grievances was the motivating factor behind Defendants’ alleged actions. Summary judgment was therefore appropriate. Accordingly, we will affirm the judgment of the District Court. Appellant’s motion to file a supplemental appendix is denied as the proffered exhibits either duplicate documents previously included in Appellees’ supplemental appendix or relate to a wholly different litigation.
. Tinsley challenges the District Court's order only with respect to his access-to-courts claim and his retaliation claim. Accordingly, review of all other claims has been waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (an issue is waived unless a party raises it in its opening brief). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478368/ | OPINION
PER CURIAM.
Darren Keys, a federal prisoner proceeding pro se, filed a petition for a writ of mandamus. In his petition, he asks this Court to order the District Court to clarify its order assessing fees. For the reasons stated below, we will deny the petition.
In 2007, Keys initiated a civil action and applied for in forma pauperis status, which the District Court granted. The District Court informed Keys that pursuant to 28 U.S.C. § 1915, he must pay the full amount of the $350 filing fee in installments. Based on the financial information that Keys submitted, the District Court assessed an initial partial filing fee. In addition, the District Court instructed the Warden or the appropriate official to deduct from Keys’s account, each time the balance in his inmate trust fund exceeds $10, an amount no greater than 20 percent of the money credited to his account during the preceding month and forward that amount to the Clerk of the Court.
In March 2008, after considering an unopposed motion to dismiss, the District Court dismissed Keys’s complaint. Keys appealed, and this Court dismissed his action pursuant to 28 U.S.C. § 1915(e)(2)(B) because it lacked legal merit. See C.A. 08-1883. While the appeal was pending, partial filing fees continued to be deducted from Keys’s prisoner account and noted on the District Court’s docket.
In August 2009, Keys filed the instant petition for writ of mandamus or prohibition pursuant to 28 U.S.C. § 1651. Keys *383alleged that the District Court repeatedly denied his motions to clarify its assessment order under 28 U.S.C. § 1915(b)(2), specifically as to how the Warden should comply with the fee assessment order.1 Keys seeks mandamus relief from this Court to compel the District Court to clarify its assessment order.
Regardless of whether a prisoner seeks a writ of mandamus or a writ of prohibition, the appropriate inquiry is whether such an extraordinary remedy is available. See In re Sch. Asbestos Litig., 921 F.2d 1310, 1313 (3d Cir.1990); United States v. Santtini, 963 F.2d 585, 594 (3d Cir.1992) (citing In re Jackson County, 834 F.2d 150,151 (8th Cir.1987)). Before a writ will issue, the petitioner must establish that the writ is not being used as a substitute for the regular appeals process, that there is no alternative remedy or other adequate means to obtain the desired relief, and that the right to the relief sought is “clear and indisputable.” See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005).
Keys has not shown that a writ should issue. He seeks to have the District Court’s order regarding the fee assessment procedure clarified, yet the order is clear. To the extent that Keys really seeks review of how the order is being enforced, mandamus action by this Court is not appropriate at this time. We cannot say, based on our review of the District Court’s docket, that Keys has shown a “clear and indisputable” right to such relief.2 The District Court is in a much better position than we are to examine whether its assessment order is being properly executed by the Warden or other prison official. Accordingly, rather than seeking mandamus relief in this Court, Keys should make an appropriate and specific request to the District Court, and if necessary, utilize the regular appeals process. Keys may also consider utilizing the prison’s internal grievance procedures, if he has not already done so. The petition for a writ is denied.
. The District Court’s docket reflects that Keys has filed numerous other motions regarding the status of his account and the collection of filing fees. The District Court has denied each of Keys's motions.
. Based on a cursory review of the docket, some notations appear atypical or irregular. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478370/ | OPINION
PER CURIAM.
Petitioner Xin Tao Li, a native and citizen of China, entered the United States without being admitted or paroled on June 14, 2006 at Hidalgo, Texas. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States without being admitted or paroled. Venue was changed from Har-lingen, Texas to Newark, New Jersey. On January 4, 2007, Li filed his application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he had been persecuted by the Chinese government on account of his practice of the outlawed Falun Gong religion.1 Li’s asylum application included a personal statement.
At his merits hearing on April 21, 2008, Li testified that, on May 10, 2006, he was home watching television when the police came to his family’s house looking for his parents, who are Falun Gong practitioners. Li told the police his parents were on a seven-day tour and were not at home. The police searched the house and found Falun Gong materials. They brought Li, who was then 20 years old, to the police station and detained him for three days. He was interrogated several times, and *385slapped, or hit, in the face two times. After he was released he was instructed to tell his parents that they must surrender to the police. When Li got back home he telephoned his parents, told them what had happened, and advised them not to come back home. Three days later, the police came back to Li’s house and asked him if his parents had returned. Li told the police he did not know if they had returned. The police told him if they did not return within seven days Li himself would be arrested. After the police left, Li again warned his parents. They went into hiding at a relative’s home in a different village. Later, they helped make arrangements for Li to come to the United States.
In addition to his testimony and the written statement accompanying his asylum application, Li produced the testimony of a friend, Mei Hian Li, who lives in Manhattan. Ms. Li testified that she has seen Li practicing Falun Gong in the United States. Several documents were admitted into evidence, including the State Department’s International Religious Freedom Report on China for 2006; an affidavit from Sheng Wang Xu, Li’s lawful permanent resident cousin and a Falun Gong practitioner; photographs showing Li practicing Falun Gong movements; copies of U.S. Congressional Resolutions requesting that China stop persecuting Falun Gong practitioners; internet and newspaper articles that discuss Falun Gong; and an affidavit from Li’s mother, among other items. In her affidavit, Li’s mother stated she and her husband practiced Falun Gong for its health benefits. A.R. 268. On May 21, 2006, they “traveled many industry sites of Shanghai, Hangzhou, Nanjing, Suzhou, Wuxi and other cities and met many local Falun Gong practitioners secretly.” See id. Li’s mother attested to the events surrounding Li’s detention and interrogation.
At the conclusion of the merits hearing, the Immigration Judge denied relief. The IJ determined that Li was not credible on the basis of several inconsistencies between his written statement and his testimony. In addition, the IJ did not believe that Li’s mother’s affidavit supported his claim. Because of these deficiencies in his case, Li failed to meet the burden of proof necessary to establish that he was a victim of past persecution in China, or that he has a well-founded fear that he would be persecuted in China upon his return. In the alternative, the IJ concluded that, even if Li was to be believed, his testimony that he was taken into custody by the police for three days, interrogated about his parents’ whereabouts, and slapped, did not support a finding of past persecution. The detention and physical assault did not rise to the level of persecution because Li was not injured. Furthermore, Li failed to establish a nexus to any of the five statutory grounds.
With respect to a well-founded fear of persecution, the IJ concluded that there was no evidence the police believed Li to be a Falun Gong practitioner. The police were interested in him so that they could locate his parents. The IJ found Li’s evidence that he is, himself, a Falun Gong practitioner, to be sparse. His mother’s affidavit did not, for example, reflect the fact that Li himself is a Falun Gong practitioner. Last, the IJ found Li’s torture claim lacking in merit.
Li appealed to the Board of Immigration Appeals, contending, among other things, that the IJ disregarded the objective evidence of China’s human rights violations with respect to the basic freedoms of Fa-lun Gong practitioners. A.R. 68. In dismissing Li’s appeal in a decision dated November 21, 2008, the Board agreed with the IJ that Li’s brief detention and interrogation did not rise to the level of perse-*386ration, see Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233 (3d Cir.1993); Matter of O-Z & I-Z-, 22 I. & N. Dec. 23 (BIA 1998). The Board also noted a lack of evidence to suggest that the Chinese police have an interest in mistreating Li in the future, given that, during his past encounters, the police only asked him where his parents were, and accused them, but not him, of practicing Falun Gong. Thus, the Board concluded, the record contained no indication that the police imputed the practice of Falun Gong to Li. Moreover, the Board noted that Li’s parents continue to live in China, and Li produced no evidence that his parents have been harmed, which undermines his claim that he fears persecution in China, see, e.g., Matter of A-E-M, 211. & N. Dec. 1157 (BIA 1998). The Board did not see the need to reach the IJ’s adverse credibility determination, or her finding that Li failed to establish a nexus between his detention and mistreatment and a protected ground. The Board agreed with the IJ’s conclusion that Li failed to establish that he is more likely than not to be tortured in China by or with the acquiescence of government officials, see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Li now seeks review of the Board’s decision.
We will deny the petition for review. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Our power of review extends only to the decision of the Board. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b); see also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42)(A) of the INA defines a “refugee” as a person unable to return to her country of “nationality ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42)(A). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a); Gao, 299 F.3d at 272. Persecution has a well-established meaning; it includes threats to life or freedom but it does not include treatment that fairly may be regarded as unfair or unjust, or even unlawful. Fatin, 12 F.3d at 1240. If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir.2007).
To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of persecution through the presentation of evidence that it is more likely than not that he would be subject to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). This is a more stringent standard than the asylum standard. See Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 102 n. 8 (3d Cir.2006) (citing Janusiak v. Immigration & Naturalization Serv., 947 F.2d 46, 47 (3d Cir.1991)).
*387Li has failed to show that the Board’s conclusion that he failed to demonstrate past persecution is not supported by reasonable, substantial and probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. The record evidence supports the finding that Li’s detention and mistreatment did not rise to the level of persecution, a term which connotes extreme conduct. Fatin, 12 F.3d at 1240. He suffered no injury and needed no medical attention as a result of what happened to him. We have held that this is insufficient to establish persecution. See, e.g., Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119-20 (3d Cir.2007) (five-day detention resulting in minor injury did not amount to persecution); Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir.2005) (single beating that does not result in serious physical injury does not compel reversal of the Board’s decision that alien did not suffer past persecution).
Having failed to establish past persecution, Li does not have the benefit of the presumption that he has a well-founded fear of persecution. In the absence of evidence of past persecution, the alien must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and he must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id. Li produced no individualized evidence to show that the Chinese police have an interest in mistreating him in the future. During his past encounters with the police, they were interested only in his parents’ whereabouts. The police accused his parents, but not Li himself, of being Falun Gong practitioners. Li’s evidence did not establish that the police imputed the practice of Falun Gong to him. His own testimony established that the Chinese police did not accuse him of being a Falun Gong practitioner, and their interest in him was only because he might know of his parents’ whereabouts. A.R. 181-82. As the Board pointed out, Li’s parents continue to live in China, and Li produced no evidence to show that his parents have been harmed, see, e.g., Matter of A-E-M, 21 I. & N. Dec. 1157 (reasonableness of alien’s fear of persecution is reduced when his family remains in his native country unharmed for long period of time after his departure). His mother stated in her affidavit that she and her husband are living at a relative’s home in Ronghuaxin Village; she does not indicate that she has had any trouble there. A.R. 269.
Li’s documentary evidence, including the State Department’s International Religious Freedom Report on China for 2006, indicates that some Falun Gong followers have been subject to severe treatment by Chinese authorities. He contends that the Board ignored this evidence, and it is true that the Board discussed only Li’s lack of individualized evidence. Li notes that the 2006 International Religious Freedom Report states on p. 9 that: “There were credible reports of torture and deaths in custody of Falun Gong practitioners in past years.... In April 2006, overseas Falun Gong groups claimed that a hospital in Sujiatun, Shenyang, had been the site of a ‘concentration camp’ and of mass organ harvesting, including from live prisoners.” See Petitioner’s Brief, at 26 (quoting 2006 Religious Freedom Report), & at 13-14. But Li omitted from his brief the remainder of the quoted paragraph, which states: “In response to the allegations, the Government opened the facility in question to diplomatic observers and foreign journalists. Observers found nothing inconsistent with the operation of a hospital.” A.R. 208 (emphasis added). In sum, even if we accept that Li himself has become a Falun Gong practitioner in the United States, see Petitioner’s Brief, at 23-24, he *388provided no evidence to show either that every follower of Falun Gong is persecuted in China or that he would be targeted specifically for such treatment. Accordingly, the Board’s determination that Li does not have a well-founded fear of persecution is supported by substantial evidence. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.
Last, we address Li’s contention that the Board’s decision not to address the credibility issue “is a clear abuse of discretion.” See Petitioner’s Brief, at 18. We disagree. The Board may decide a case without considering an alternative basis upon which the Immigration Judge made his or her decision. That the Board gave Li the benefit of the doubt on the credibility issue is not cause for complaint. The Board did not err when it decided Li’s case without considering the IJ’s adverse credibility determination.
Because Li failed to show past persecution or a well-founded fear of future persecution under the lower burden of proof required for asylum, he is necessarily ineligible for withholding of removal. Cardo-za-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that Li met his burden of establishing that it is more likely than not that he will be tortured upon his return to China, 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
. Falun Gong blends aspects of Taoism, Buddhism, and the meditative techniques and physical exercises of qigong — a traditional Chinese exercise discipline — with the teachings of its founder. See generally Lin v. Att’y Gen. of U.S., 543 F.3d 114, 117 n. 3 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478375/ | OPINION OF THE COURT
FISHER, Circuit Judge.
Adrian Speed appeals from a criminal conviction in the United States District Court for the District of New Jersey. Speed was found guilty of one count of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371, for his efforts to pass, utter, or publish United States Treasury checks bearing a falsely made or forged endorsement or signature, in violation of 18 U.S.C. *393§ 510(a). For the reasons stated herein, we will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of the case. Therefore, we will set forth only those facts necessary to our analysis.
In early 2006, the United States Treasury issued two sisters, Maria and Sandra Barreto, their individual 2005 tax refund checks. The checks were mailed to an apartment where the two sisters formally resided but that Jeffery Lawton at that time occupied. Rather than return them, Lawton gave the checks to Darral Black, a longtime friend of appellant Speed.
On March 24, 2006, Black met Speed outside of the 416 Federal Credit Union in North Brunswick, New Jersey (“Credit Union”). Black gave Speed the $5,829 tax refund check issued to Maria Barreto (“Maria”), and Speed deposited the check into his bank account. On March 28, 2006, after Maria’s check cleared, Speed withdrew all but $29 of the deposited check from his account and gave the money to Black. Black, in turn, paid Speed $40. On that same day, Black gave Speed the $4,544 tax refund check issued to Sandra Barreto (“Sandra”), which Speed also deposited into his Credit Union account. As before, once the check cleared, Speed withdrew all but $20 of the check and gave the money to Black in exchange for an additional $50. Each check contained Speed’s endorsement and either Maria’s or Sandra’s forged signature.
The Barreto sisters eventually inquired into the whereabouts of their tax refunds, and the United States Secret Service launched an investigation, which ultimately led to the indictment of Lawton, Black, and Speed.1 At Speed’s trial, Suzanne Perez, the Credit Union teller that processed Speed’s transaction, testified that an older woman accompanied Speed during each incident. Perez stated that Speed identified the woman as his neighbor and the payee of the check and that the woman signed the check in her presence.2 A second Credit Union employee, Ellen Wilson, also testified that an older woman was with Speed when he deposited Maria’s check.
At the close of the Government’s case, Speed moved for an acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, which the District Court denied. Speed then testified in his own defense. Speed stated that he had never met either of the Barreto sisters prior to depositing their checks into his bank account. Speed testified that he deposited the checks as a favor to Black after Black explained that two employees in his cleaning business needed assistance with cashing their checks. Although he admitted that he was aware of Black’s criminal history, Speed stated that he believed Black’s statement to him that the checks were legitimate. Finally, Speed denied that he was accompanied by anyone when making the deposits. Speed did not renew his Rule 29 motion for acquittal after the close of evidence.
On April 3, 2008, the jury returned a verdict of guilty. Speed did not file any *394post-trial motions and, on November 6, 2008, the District Court sentenced Speed to three years of probation and ordered him to make restitution in the amount of $10,378, to be paid jointly with Lawton and Black. Speed filed a timely notice of appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review sufficiency claims under a plain error standard when the defendant fails to make a timely motion for acquittal before the District Court. United States v. Gordon, 290 F.3d 539, 547 (3d Cir.2002). We exercise plenary review over a challenge to the propriety of a willful blindness instruction. United States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir.2000).
III.
Speed appeals his criminal conviction on two grounds. First, Speed argues that the evidence offered by the Government is legally insufficient to support the jury verdict. Second, Speed contends that the District Court erred in charging the jury with a willful blindness instruction. We will address each argument in turn.
A.
Speed contends that he is entitled to a judgment of acquittal because the evidence offered by the Government at trial is legally insufficient to establish that he knowingly participated in a conspiracy to defraud.
Normally, the standard of review for a sufficiency challenge is “particularly deferential,” requiring this Court to “view the evidence in the light most favorable to the government, and [jsustain the verdict if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Soto, 539 F.3d 191, 194 (3d Cir.2008) (quotations and citations omitted). Here, however, Speed failed to preserve his right to appeal his conviction on sufficiency grounds. Speed neither renewed his Rule 29 motion for acquittal at the close of all the evidence nor filed any post-trial motions raising a sufficiency argument. Therefore, we will review Speed’s sufficiency claim under a plain error standard. See Gordon, 290 F.3d at 547 (“Because [the defendant] did not file a motion for acquittal pursuant to Fed.R.Crim.P. 29(c), we review [his sufficiency] claim under a plain error standard.”). “A conviction based on insufficient evidence is plain error only if the verdict ‘constitutes a fundamental miscarriage of justice.’ ” United States v. Thayer, 201 F.3d 214, 219 (3d Cir.1999) (quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir.1991)).
Here, our review of the record reveals no plain error. To obtain a conviction under § 510(a)(2), the Government must prove the following beyond a reasonable doubt: “(1) that the defendant passed or attempted to pass a United States Treasury Check; (2) that the check bore a forged or falsely made endorsement; (3) that the defendant passed the check with intent to defraud; and (4) that the defendant acted knowingly and willfully.” Bobb v. Att’y Gen., 458 F.3d 213, 227 (3d Cir.2006). Contrary to Speed’s assertion, there is evidence from which a jury could reasonably infer that Speed did act knowingly and willingly, and with the intent to defraud. Speed testified that he had never met either of the Barreto sisters prior to depositing their checks into his bank account. Perez, however, testified that Speed was accompanied by a woman whom Speed identified as the payee of the Barre-to checks each time Speed deposited one of the checks into his account, and a second bank employee also testified to the woman’s presence during the first deposit. *395This evidence, taken as a whole, supports the inference that Speed knowingly participated in a conspiracy to defraud. Although Speed testified that he entered the bank alone, it is not our role to weigh the credibility of witnesses. See United States v. Brodie, 408 F.3d 123, 133 (3d Cir.2005) (“Courts must be ever vigilant in the context of Fed.R.Crim.P. 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury.”). Therefore, we find no plain error in the jury’s conviction.
B.
Speed also argues that the District Court erred in charging the jury with a willful blindness instruction3 because the evidence did not support an inference of deliberate ignorance.
We will uphold a willful blindness instruction if it is supported by sufficient evidence that the defendant deliberately avoided knowledge of the presence of a scheme to defraud. Wert-Ruiz, 228 F.3d at 255. “In evaluating the charge, we view the evidence and the inferences drawn therefrom in the light most favorable to the Government.” Id. Here, there is sufficient evidence that Speed kept himself in a state of deliberate ignorance. Speed used his personal bank account to cash two sizeable checks payable to two women he had never met. Although Black allegedly told Speed that the checks were legitimate, Black, who Speed knew had a criminal history, offered Speed nothing in support of this statement. Speed likewise did not ask for any documentation identifying the employees or for any explanation as to why the employees could not cash their checks through more conventional means. See United States v. Stone, 987 F.2d 469, 471-72 (7th Cir.1993) (holding that an equivalent to the willful blindness instruction was proper in a § 510(a) case where the defendant failed to confirm that the individual for whom he was cashing the check was the payee and accepted $100 in payment for his assistance). Therefore, since there is sufficient evidence of deliberate ignorance, the willful ignorance instruction was proper.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment of conviction.
. Lawton and Black each pled guilty to one count of conspiracy to commit an offense against the United States, in violation of 18 U.S.C. § 371, for their efforts to pass, utter, or publish United States Treasury checks with forged endorsements, in violation of 18 U.S.C. § 510(a). Both have been sentenced, and neither has appealed.
. Perez did not ask the woman for identification, nor did she notice that the same woman purported to be two different individuals during a four-day period.
. Speed's brief refers to the charge as a "conscious avoidance” instruction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478377/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
This case raises jurisdictional issues regarding an alien’s ability to challenge, in federal district court, the adjudication of certain immigration applications by U.S. Citizenship and Immigration Services (“USCIS”). Appellant Bledar Vaso filed a complaint in the District Court seeking declaratory judgment, a writ of habeas corpus, and a writ of mandamus. The District Court dismissed the case for lack of subject matter jurisdiction. We will affirm the District Court’s order dismissing the complaint.
I.
Vaso is an Albanian citizen who entered the United States on December 24, 1997 using a fraudulent Italian passport. The Government commenced removal proceedings against him within about a month of his arrival. Vaso conceded removability, but applied for asylum, withholding of removal, and voluntary departure. On December 23, 1998, these applications were denied by an immigration judge. After several years of further proceedings, the Board of Immigration Appeals (“BIA”) ultimately denied his final administrative appeal on February 19, 2003, and then denied two motions to reconsider. Vaso petitioned this court for review of the BIA’s decisions. On February 12, 2008, we denied the petition to the extent that it challenged the denial of one of the motions to reconsider, and dismissed it for lack of jurisdiction to the extent that it raised other claims. Vaso v. Att’y Gen. of the United States, 264 Fed.Appx. 161 (3d Cir.2008). Vaso was allowed to remain at liberty during most of this ten-year period, during which time he married a U.S. citizen and had two children.
After being detained in August 2007 in anticipation of removal, Vaso sought various forms of relief from USCIS in a further attempt to avoid removal. On September 7, 2007, he submitted an Application to Register Permanent Residence or Adjust Status, as provided for by 8 U.S.C. § 1255. USCIS determined that Vaso was inadmissible under 8 U.S.C. §§ 1255(a)(2) and 1182(a)(6)(C)(i) because he had attempted to procure admission into the United States by fraud or willful misrepresentation (i.e., by relying on the fraudulent Italian passport). On December 5, 2007, USCIS issued a Notice of Intent to Deny the application on those grounds. In response, on December 27, 2007, Vaso submitted an Application for Waiver of Grounds of Inadmissibility under § 1182(i)(l) on the ground that his removal would result in hardship to his wife.
On January 24, 2008, both applications were denied. Vaso moved to reopen and to reconsider these denials, but these motions were denied on April 14, 2008.
On December 4, 2007, before USCIS had responded to his application for adjustment of status, Vaso filed a complaint in the District Court. He later amended the complaint twice; the second amended complaint, which was filed on May 14, 2008, is the operative complaint and was the subject of the District Court order dismissing the case.
*399The complaint alleged that USCIS has a blanket policy of denying applications for adjustment of status submitted by aliens who relied on fraudulent documents to enter the United States, and that USCIS thus did not give meaningful consideration to his applications. It also challenged US-CIS’s delay in processing the applications and failure to interview him in connection with the applications.
The complaint asserted that the District Court had jurisdiction under several provisions of federal law: Article I, section 9 of the U.S. Constitution and 28 U.S.C. § 2241(c), both of which concern the writ of habeas corpus; the Administrative Procedure Act (“APA”), 5 U.S.C. § 701; the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.; and 28 U.S.C. § 1361, which authorizes the issuance of writs of mandamus.
Vaso sought three forms of relief. First, he sought a declaratory judgment that the denials of his applications were unlawful and an order to USCIS that his “adjustment of status application ... be granted based on the prima facie showing of ... the requisite ‘extreme hardship.’ ” App. 63. Second, he sought a writ of mandamus to compel USCIS to adjudicate his applications. Third, he sought a writ of habeas corpus to secure release from custody and an interview regarding his applications.
Although the District Court had initially stayed removal, it lifted that stay on February 13, 2009, shortly before dismissing the case. Vaso was subsequently removed to Albania.
Vaso now appeals. The American Immigration Council filed a brief as amicus curiae on his behalf.
II.
We have jurisdiction over this appeal under 28 U.S.C. § 1291. “We exercise plenary review over the decision to grant [a] motion to dismiss for lack of subject matter jurisdiction.” Marran v. Marran, 376 F.3d 143, 149 (3d Cir.2004). “[Tjhere is a well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action, and we will accordingly find [congressional] intent to preclude such review only if presented with clear and convincing evidence” of such intent. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63-64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (internal quotation marks and citations omitted).
III.
In order to conclude that the District Court had jurisdiction over this case, we must determine that (1) it could rely on some affirmative grant of jurisdiction and (2) there was nothing that barred the District Court from exercising jurisdiction. Vaso has not shown that the District Court had jurisdiction over his claims, and has not persuasively rebutted the Government’s argument that 8 U.S.C. § 1252(a)(2)(B) foreclosed any jurisdiction that may have existed.1
*400A.
Although the complaint claimed jurisdiction under the Constitution, 28 U.S.C. § 2241, the APA, the INA, and the mandamus statute, Vaso has offered no argument on appeal to support the District Court’s jurisdiction under any of these provisions. Instead, Vaso directs his argument to two other bases of jurisdiction.
First, Vaso claims that, under the Supreme Court’s decision in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67, 74 S.Ct. 499, 98 L.Ed. 681 (1954), “federal Courts maintain jurisdiction to review even a discretionary determination in which discretion has been abused or unlawfully exercised.” Appellant’s Opening Br. at 12. This argument misconstrues Accardi. In that case, the Court considered a habeas petition that claimed that the BIA had failed to exercise discretion (as required by its regulations) in making a determination. There was no discussion in Accardi of the district court’s jurisdiction over the habeas petition. Instead, Accardi addressed the limited question of whether the BIA had exercised its discretion appropriately. Thus, contrary to Vaso’s contention, Accardi does not provide a basis for district court jurisdiction over his claims.
Second, Vaso argues that his claims “presented legal questions that were sufficient for the District Court to invoke jurisdiction.” Appellant’s Opening Br. at 14-15. However, he cites no authority, and we have found none, for the proposition that a litigant can invoke a federal court’s jurisdiction merely by raising “legal questions.” To the extent that Vaso means to argue that 8 U.S.C. § 1252(a)(2)(D), by referring to “review of constitutional claims or questions of law,” confers jurisdiction on district courts to review such questions, that argument is without merit. The scope of 8 U.S.C. § 1252(a)(2)(D) is, by its terms, limited to the jurisdiction of the courts of appeals; it does not provide a basis for district courts to exercise jurisdiction, even to review questions of law.
By failing to address the bases of jurisdiction asserted in the complaint, Vaso has waived any arguments that they conferred jurisdiction on the District Court. Yet even if we did not find these arguments waived, we would find that the District Court lacked jurisdiction.
First, the APA did not confer jurisdiction over Vaso’s claims. Vaso invoked the APA to seek an order for his “adjustment of status application to be granted.” App. 63. However, pursuant to 8 U.S.C. § 1255(a), USCIS’s adjudication of an adjustment of status application is “committed to agency discretion,” and is therefore not subject to review under the APA. 5 U.S.C. § 701(a). Second, writs of mandamus are only available to compel “a legal duty which is a specific, plain ministerial act devoid of the exercise of judgment or discretion.” Harmon Cove Condominium Ass’n, Inc. v. Marsh, 815 F.2d 949, 951 (3d Cir.1987) (internal quotation marks and citation omitted). The adjudication of Vaso’s applications was not a ministerial act devoid of the exercise of judgment or discretion, and thus was not relief available through a writ of mandamus. Third, the claims that Vaso grounds in habeas jurisdiction related solely to his detention by the Government, which ended with his removal and no longer support the exercise of jurisdiction. Finally, although the complaint referred to the INA as a basis for jurisdiction, we are aware of no specific provision of the INA that would confer jurisdiction in this case.
*401B.
Even if there were a proper basis for jurisdiction in this case, 8 U.S.C. § 1252(a)(2)(B) would prevent the District Court from exercising such jurisdiction over Vaso’s claims.
Section 1252(a)(2)(B) provides as follows:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchap-ter to be in the discretion of the Attorney General or the Secretary of Homeland Security....
We have construed this language to bar review only of discretionary actions. By contrast, “[n]on-discretionary actions ... and purely legal determinations made by the agency ... remain subject to judicial review.” Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir.2005). For instance, “[d]eter-mination of eligibility for adjustment of status—unlike the granting of adjustment itself—is a purely legal question and does not implicate agency discretion.” Id. Thus, if Vaso were challenging the determination that he is statutorily inadmissible for attempting to procure admission through fraud, review of that determination would not be foreclosed by § 1252(a)(2)(B). The District Court’s comment to the contrary was error. The determination that an alien is statutorily inadmissible is a nondiscretionary, legal determination, for which § 1252 does not foreclose review.
However, Vaso is not challenging this nondiscretionary determination. Instead, he is challenging the Government’s decisions on his applications for a waiver of inadmissibility and adjustment of status. These decisions are discretionary judgments of the Executive, for which the Attorney General is explicitly directed by statute to use his discretion. See 8 U.S.C. §§ 1182(i); 1255(a). As we have indicated, the decision on an application to adjust status, unlike the statutory determination of whether an immigrant is eligible for such an adjustment, is “within the discretion of the agency” and is not subject to judicial review. Pinho, 432 F.3d at 203. The same is true of the decision on a waiver of inadmissibility. By virtue of § 1252(a)(2)(B), neither is subject to judicial review.
Vaso contends that § 1252(a)(2)(B) cannot bar review of his claims because the title of § 1252 is “Judicial review of orders of removal,” and he is not challenging an order of removal. This argument is wholly without merit. As other courts of appeals have held, the title of § 1252 does not limit its scope to removal proceedings, since “ ‘the heading of a section cannot limit the plain meaning of [its] text.’ ” Samirah v. O’Connell, 335 F.3d 545, 548-49 (7th Cir.2003) (quoting Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947)); see also CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620 (6th Cir.2002); Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir.1999). Moreover, nothing in § 1252(a)(2)(B) contains any language limiting its provisions to orders of removal; § 1252(a)(2)(B)(i) in fact specifically refers to statutes concerning other matters, such as applications for waivers of inadmissibility and adjustments *402of status. Indeed, we stated explicitly in Jilin Pharmaceutical USA, Inc. v. Chertoff that, “[s]ince the enactment of the REAL ID Act, this jurisdiction-stripping provision applies ‘regardless of whether the [administrative] judgment, decision, or action is made in removal proceedings.’ This amendment ... resolved whether § 1252(a)(2)(B) applied outside the context of removal proceedings.” 447 F.3d 196, 199 n. 5 (3d Cir.2006) (quoting § 1252(a)(2)(B)).
We note, however, that the District Court erred to the extent that it held that § 1252(a)(2)(D) forecloses district court review of constitutional claims. The Government urges that, by granting the courts of appeals jurisdiction to review “constitutional claims or questions of law,” § 1252(a)(2)(D) eliminates district court review of the same claims. Conversely, Vaso argues that § 1252(a)(2)(D) grants jurisdiction to the district courts. We disagree with both propositions. Section 1252(a)(2)(D) unambiguously refers only to the jurisdiction of the courts of appeals. It makes no mention of, and has no effect on, the jurisdiction of the district courts. Moreover, § 1252(a)(2)(D) applies only to petitions for review of final removal orders. Again, Jilin is instructive. After holding that § 1252(a)(2)(B) stripped the district court of jurisdiction to hear the constitutional claims at issue there, we went on to state:
Had these claims been brought in a petition for review of a final order of removal, then the jurisdiction stripped by § 1252(a)(2)(B) to review these constitutional claims would have been restored by recently enacted § 1252(a)(2)(D). Because, however, this is not a petition for review and no final order of removal has been issued, § 1252(a)(2)(D) does not apply.
447 F.3d at 206 n. 16. As was the case in Jilin, Vaso did not bring a petition for review of a final removal order. Thus, § 1252(a)(2)(D) has no bearing on this case.
In light of the above conclusions, we need not reach the Government’s argument that § 1182(i)(2) independently foreclosed jurisdiction in this case.
IV.
For the foregoing reasons, we will affirm the District Court’s order dismissing this case for lack of subject matter jurisdiction.
. The Government, in supplemental briefing submitted shortly before oral argument (when Vaso had little opportunity to respond), argued that the case is moot because Vaso has been removed from the United States, which means that his application for adjustment of status is treated by USCIS as abandoned. See 8 C.F.R. § 245.2(a)(4)(ii)(A). However, as we held under analogous circumstances in Chong v. INS, 264 F.3d 378, 385 (3d Cir.2001), an “order of removal creates sufficient collateral consequences" to avoid mootness by preventing an alien from reentering the United States for several years. Although Vaso is not directly challenging the order of removal, a favorable resolution of his applications for adjustment of status and waiver of inadmissibility would likely have allowed him to avoid the same collateral consequences that we identified in Chong. Under these circum*400stances, we decline to dispose of this case on mootness grounds. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478379/ | OPINION
SLOVITER, Circuit Judge.
Before us is the appeal of Kenneth G. Geraghty from the District Court’s order dismissing his complaint for retaliatory discharge under the New Jersey Conscien*404tious Employee Protection Act (“CEPA”), N.J. Stat. Ann. §§ 34:19-1 to -14, on the basis of Geraghty’s broad release.
I.
Defendants were Insurance Services Office, Inc. (“ISO”), a company that provides data and consulting services regarding risk, and Frank J. Coyne, ISO’s President, Chairman, and Chief Executive Officer. Geraghty, the former Chief Financial Officer (“CFO”) of ISO, began his employment with ISO in 2000. In December 2003, he became a named fiduciary for a multiple employer pension plan (“Plan”) in which ISO participated. A year later, Geraghty was among those who raised concerns that one of the other named fiduciaries of the Plan, Robert Vagley, had a conflict of interest and was overcharging the Plan for administrative fees. The Department of Labor began an investigation in May 2005 and Vagley later resigned.
In July 2006, Geraghty and other named fiduciaries brought suit against Vagley and others for ERISA violations in connection with the Plan. In February 2007, Geraghty and other named fiduciaries requested that ISO produce additional documents in discovery. The ERISA suit was settled in April 2008.
On March 8, 2007, Coyne terminated Geraghty’s employment with ISO. Ger-aghty claims the termination was in retaliation for his filing of the ERISA complaint and for cooperating in the Department of Labor’s investigation. Geraghty also claims that following his termination, ISO took additional steps to punish him, by, inter alia, failing to offer him outplacement services, constructively terminating another ISO employee’s assistance to him, removing language protecting him under ISO’s fiduciary insurance policy, disputing his stock options, refusing to allow him to review certain ISO committee meeting minutes, and improper withholding of New Jersey state income taxes.
After his termination, Geraghty, who was represented by an attorney with undisputed extensive experience negotiating employment separation agreements, negotiated a separation package with ISO. On April 27, 2007, after six weeks of negotiation, Geraghty executed an “Agreement and General Release” (“Release”). Included in that General Release of Claims was the following:
Employee knowingly and voluntarily releases and forever discharges, to the full extent permitted by law, ISO, its affiliates, subsidiaries, divisions, predecessors, successors and assigns and the current and former employees, officers, directors and agents thereof ... of and from any and all claims, known and unknown, asserted and unasserted, Employee has or may have against Employer as of the date of execution of this Agreement and General Release, including, but not limited to, any alleged violation of: [list of thirteen federal and state statutes and] [ajny other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance....
App. at 59-60 (emphasis added).
As consideration for signing the Release, ISO paid Geraghty approximately $250,000. Geraghty had at least twenty-one days to review the Release with his attorney. Geraghty also had seven days following execution to revoke the Release.
Upon execution, Geraghty certified that: Having elected to execute this Agreement and General Release, to fulfill the promises and to receive the sums and benefits in paragraph (2) above, Employee freely and knowingly, and after due consideration, enters into this Agreement and General Release intend*405ing to waive, settle and release all claims he has or might have against Employer.
App. at 59.
More than seven days after execution, Geraghty sent ISO a letter stating that:
On April 27, 2007, I executed an Agreement and General Release between ISO and me. I consulted with an attorney of my choosing, prior to executing this Agreement and General Release.
... I have at no time revoked my acceptance or execution of that Agreement and General Release and hereby reaffirm my acceptance of that Agreement and General Release.
App. at 63.
II.
Geraghty filed a complaint against ISO and Coyne which, after amendment, contains claims alleging violation of CEPA, defamation, breach of contract, breach of implied contract, and promissory estoppel. All of Geraghty’s claims, with the exception of the CEPA claim, have been settled. ISO and Coyne filed a motion to dismiss Geraghty’s CEPA claim under Federal Rule of Civil Procedure 12(b)(6), which the District Court granted. Geraghty appeals, arguing that the Release did not bar his CEPA claim and that the District Court improperly considered evidence outside of the complaint when ruling on the Rule 12(b)(6) motion.1
III.
In granting the motion to dismiss, the District Court stated, “[t]here is no genuine question as to whether Geraghty signed the Release knowingly and voluntarily.” App. at 7. The Court noted Ger-aghty’s “highly sophisticated education,” and the record shows that he holds several degrees, including a Master of Science in Chemical Engineering degree from the University of California at Berkeley and a Master of Business Administration degree from Harvard University. He had significant business experience, as prior to joining ISO he served as a senior executive elsewhere. Moreover, he was represented by skillful counsel throughout and received $250,000 upon signing the Release, a sum Geraghty’s brief terms “modest,” see Appellant’s Br. at 45, but which may not be considered so by others.
This Court uses a totality of the circumstances test when considering the validity of a release agreement. See Coventry v. U.S. Steel Gorp., 856 F.2d 514, 524 (3d Cir.1988). In Cirillo v. Arco Chem. Co., 862 F.2d 448, 451 (3d Cir.1988), we listed those circumstances as follows:2
(1) the clarity and specificity of the release language; (2) the plaintiffs education and business experience; (3) the amount of time plaintiff had for deliberation of the release before signing it; (4) whether plaintiff knew or should have known her rights upon execution of the release before signing it; (5) whether plaintiff was encouraged to seek, or in fact received, benefit of counsel; (6) whether there was opportunity for negotiation of the terms of the agreement; and (7) whether the consideration given in exchange for the waiver and accepted by the employee exceeds the benefits to which the employee was already entitled to by law.
*406The “totality of the circumstances” test applies to a release of both the federal claims and those arising under New Jersey law. See Swarts v. Sherwin-Williams Co., 244 N.J.Super. 170, 581 A.2d 1328, 1332 (1990) (adopting the Third Circuit totality test).
Here, nearly every factor weighs in favor of a finding that Geraghty executed the Release in a knowing and voluntary manner. Geraghty now attempts to circumvent the broad language of the release, arguing that the Release failed to specify that it included release of a CEPA claim. We agree with the District Court’s rejection of this argument. Under New Jersey law, “the phrase ‘any and all’ allows for no exception.” Isetts v. Borough of Roseland, 364 N.J.Super. 247, 835 A.2d 330, 336 (2003) (citing Atlantic Cas. Ins. Co. v. Interstate Ins. Co., 28 N.J.Super. 81, 100 A.2d 192, 198 (1953)); see also Am. Lumber Corp. v. Nat’l R.R. Passenger Corp., 886 F.2d 50, 55 (3d Cir.1989) (finding that “all possible claims” means all claims the plaintiff asserted or could have asserted).
The Release was a relatively short document consisting of only four pages. It used mostly straight-forward language releasing ISO from “any and all claims, known and unknown, asserted and unas-serted,” and when listing numerous federal and state causes of action stated that the waiver was “including, but not limited to” those claims. App. at 59. This is clear and unambiguous language that an average person would understand to be all-encompassing. Geraghty admitted that at the time of execution he was aware that he might have a CEPA claim. Therefore, the clear, expansive language of the Release and Geraghty’s own knowledge of a potential CEPA claim outweigh the failure to name specifically the CEPA statute.
Geraghty relies on the decision in Keelan v. Bell Commc’ns Research, where the Superior Court of New Jersey, after noting that courts in the Third Circuit had never held that a release must specifically mention a statute to effectively bar a claim, concluded that the employer’s failure to specifically mention CEPA by name raised an issue of material fact regarding whether the waiver was voluntary. 289 N.J.Super. 531, 674 A.2d 603, 610 (1996). Geraghty points to no case since Keelan in which a court has held that a general release is unenforceable as a waiver of a CEPA claim. In contrast, courts have enforced general releases where other remedial employment laws are not specifically named. See Swarts, 581 A.2d at 1331, 1333 (affirming dismissal of a plaintiffs claim under the remedial New Jersey Law Against Discrimination (“NJLAD”) although the release did not specifically mention NJLAD). Moreover, the Keelan court also found that the employee had only a short period of time to consider an important part of the release and was potentially under duress at the time of signing. Keelan, 674 A.2d at 611-12. Thus, the facts of Keelan are largely distinguishable.
Geraghty also tries to avoid waiver of his CEPA claim by arguing that the CEPA claim had not accrued at the time of the Release execution. Generally, courts will not interpret a release to bar a claim that had not accrued as of the date of signing. Bowersox Truck Sales & Serv., Inc. v. Harco Nat’l Ins. Co., 209 F.3d 273, 279 (3d Cir.2000). Geraghty points to actions taken by ISO after his termination to support his contention that his CEPA claim had not yet accrued as of the Release execution. A CEPA claim accrues as of the date of the discharge, suspension, or demotion. See Ivan v. County of Middlesex, 595 F.Supp.2d 425, 467 (D.N.J.2009). Therefore, Geraghty’s CEPA claim accrued when he was terminated, weeks before he signed the Release.
*407Although Geraghty points to actions taken by ISO that constitute a pattern of retaliatory conduct in violation of CEPA, these are secondary actions that are irrelevant for purposes of this case. The heart of Geraghty’s CEPA cause of action accrued before the Release was executed, when he was terminated. Any alleged actions taken by ISO after Geraghty’s termination would not be covered by CEPA, because the statute applies to “employees.” See N.J. Stat. Ann. § 34:19-2(b) (defining employee as an individual who performs services under the control of an employer in return for compensation); see Zubrycky v. ASA Apple, Inc., 381 N.J.Super. 162, 885 A.2d 449, 452 n. 2 (2005) (“CEPA does not apply to post-employment conduct.”) (citing Young v. Scheming Corp., 141 N.J. 16, 660 A.2d 1153 (1995); Beck v. Tribert, 312 N.J.Super. 335, 711 A.2d 951 (1998)). Thus, Geraghty’s CEPA claim accrued when he was terminated and was therefore included within the language of the Release.
IV.
Finally, Geraghty contends that the District Court erred by relying on the Release when deciding ISO’s motion to dismiss. As a general rule, when “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Our case law is in accord. See, e.g., Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004) (noting that in deciding a motion under Rule 12(b)(6), “courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim”). The District Court appears to have recognized this rule, noting: “To the extent the Court considers facts proffered by Geraghty in his briefs and accompanying Declaration, and revealed at oral argument to be undisputed, the motion to dismiss is converted into a motion for summaiy judgment on those limited factual issues.” App. at 6.
Failure to give the required notice that fairly apprises the parties that the court is treating a motion as one for summary judgment may compel reversal, unless the error is harmless. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287-89 (3d Cir.1999). Here, we conclude that the error was harmless. First, no one disputes the authenticity of the Release. Second, Geraghty was able to anticipate that the summary judgment procedure would be followed, filing his own declaration in opposition to the motion to dismiss. Third, Geraghty has made no showing that he had insufficient notice to adduce any other relevant evidence and, thus, has shown no prejudice from the lack of formal notice.
In these circumstances, we conclude that the District Court did not err in converting ISO’s motion to dismiss into a motion for summary judgment. Geraghty was not prejudiced by the court’s failure to give formal notice of the conversion.
V.
For the reasons set forth, we will affirm the decision of the District Court.
. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We have plenary review over a district court’s order granting a motion to dismiss. Werwinski v. Ford Motor Co., 286 F.3d 661, 665 (3d Cir.2002).
. Since the Cirillo decision, the ADEA statute contains its own provision applicable to a release, thereby superseding the Cirillo decision in this respect. See Long v. Sears Roebuck & Co., 105 F.3d 1529, 1539 (3d Cir.1997). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478381/ | OPINION
PER CURIAM.
Raymond W. Accolla sued the United States of America, Dr. Hendershot, and P.A. Hubble, among other defendants.1 *409His claims under Bivens v. Six Unknown Named Agents of the FBN, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (“FTCA”) related to how he was treated for medical conditions at FCI-Schuylkill.
The three defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. They argued that the Eighth Amendment claims against Hen-dershot and Hubble should be dismissed because of Accolla’s failure to exhaust his administrative remedies. In the alternative, they contended that the claims should be dismissed because Hendershot and Hubble were not deliberately indifferent to a serious medical need. Also, they argued that the FTCA claim should be dismissed because 1) Aecolla failed to exhaust the administrative tort process when he filed his complaint before receiving notice of final agency action, 2) Aecolla did not include a certificate of merit, or 3) Aecolla failed to state a prima facie claim of negligence. With their motion, they filed a statement of facts comprising 610 paragraphs, a declaration from Hubble, Accol-la’s medical records, and evidence related to Accolla’s efforts to exhaust his administrative remedies.
Aecolla filed a motion to compel the production of his medical records; a motion (that included exhibits) requesting a decision on the issue of exhaustion of his administrative remedies; a supplemental filing relating to exhaustion of administrative remedies; a response to the summary judgment motion (without exhibits); a general denial of the defendants’ statement of facts; and more motions to compel discovery, one of which included additional exhibits relating to the exhaustion issue. The defendants sought a protective order staying all discovery requests until the resolution of their potentially case-disposi-tive motion.
The District Court, adopting the report and recommendation of the Magistrate Judge and overruling Accolla’s objections, deemed all of the defendants’ statements of facts admitted — because Aecolla did not respond to them one-by-one in compliance with a local rule — and granted the defendants’ motion. In relation to the claims against Hendershot and Hubble, the District Court concluded that Aecolla did not exhaust his administrative remedies because he did not file his administrative remedy requests at the institutional level. In relation to the FTCA claim, the District Court determined that Aecolla did not exhaust his administrative remedies because he filed his complaint prematurely (before the time for an agency ruling on his administrative claim expired). The District Court additionally concurred with the defendants that Aecolla needed to, but did not, include a certificate of merit for his claim as Pennsylvania law requires for medical negligence claims. The District Court denied all pending motions as moot.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the order granting summary judgment is plenary. See Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir.2001). We consider the orders relating to the discovery motions for abuse of discretion. See United States v. Al Hedaithy, 392 F.3d 580, 605 (3d Cir.2004). On review, we will affirm the District Court’s decision because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
The District Court properly dismissed Aceolla’s FTCA claim. A plaintiff cannot institute an FTCA suit until he or she presents the claim to a federal agency *410and receives a final decision on the claim. See 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). If the agency does not act within six months, the failure to issue a decision may be treated as a final decision by the claimant. See id. The FTCA exhaustion requirement “is jurisdictional and cannot be waived.” Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231 (3d Cir.1976).
In this case, it is undisputed that Accolla initially filed his administrative tort claim on November 27, 2007, and that he filed a supplement to it on February 20, 2008. The supplement, treated as an amendment, reset the clock. See 28 C.F.R. 14.2(c). The agency ruled within six months of the initial filing, namely, on May 22, 2008. However, because Accolla filed his FTCA action in federal court before that date and before the expiration of the appropriate six month period, the District Court was without jurisdiction to rule on the FTCA claim.2 See McNeil, 508 U.S. at 111-12, 113 S.Ct. 1980 (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed).
The District Court also properly granted summary judgment in favor of the defendants on the remaining claims under Bivens. To bring a suit challenging prison conditions, a prisoner must first properly exhaust available administrative remedies. See 42 U.S.C. § 1997e; Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that exhaustion is mandatory); see Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir.2004) (explaining that the exhaustion requirement includes a procedural default component). The burden is on the defendants to prove failure to exhaust. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002).
As the District Court noted, the defendants put forth evidence that Accolla did not exhaust his administrative remedies because, although he filed four administrative remedy requests, he did not follow BOP procedures in filing them. More specifically, he filed three administrative remedy requests with the regional office before filing a complaint at the institutional level, and he filed one complaint with the central office without having sought an administrative remedy with his warden or reconsideration of his administrative tort claim. The District Court concluded that the defendants’ statement of facts, based on the evidence, was uncontested because Accolla did not respond to each statement individually. Accolla’s response was not sufficiently specific.
We note additionally that Accolla did not otherwise controvert the relevant statements of facts or evidence of his failure to exhaust despite his repeated arguments (from the initiation of his complaint through his motion and other filings relating to exhaustion) that he exhausted his available administrative remedies. Although Accolla argued that his prison counselor thwarted his efforts by failing or refusing to issue him an administrative remedy form, he conceded, in his filings to the BOP and in the District Court, that he did not undertake a predicate step in the grievance process that would have entitled him to that form. His admitted excuse for not taking the early and necessary step in each attempt was his belief that it would be futile. However, there is no futility exception to the exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 741 n. *4116, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In short, he did not follow the proper and available procedures to exhaust his claims against Hendershot and Hubble. Accordingly, the District Court properly granted judgment in favor of the defendants.
Because the District Court properly granted the defendants’ case-dispositive motion, the District Court did not abuse its discretion in denying the remaining motions as moot. We will affirm the District Court’s judgment.
. The Magistrate Judge, screening the complaint pursuant to 28 U.S.C. § 1915A, recommended the dismissal of Accolla's claims against the rest of the defendants. Accolla initially filed objections to the Magistrate Judge’s report and recommendation (although he focused his arguments on the exhaustion of his administrative remedies), but then he filed a notice of voluntary dismissal of all the defendants but the United States, Hen-dershot, and Hubble. The District Court acknowledged the notice of dismissal and Accol-la's subsequent efforts to proceed only against the three named defendants and treated the objections as withdrawn in adopting the re*409port and recommendation. As it appears that Aecolla pursued his claims only against three defendants, claims related to the other defendants will not be considered.
. We do not consider, or express any opinion on, the alternative basis for the District Court’s decision related to the FTCA claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478384/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keyon Bowman, a state prisoner, 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 and the denial of his post judgment motions to alter and amend the judgment and for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bowman v. Ozmint, No. 0:08-cv-02517-PMD, 2009 WL 3065180 (D.S.C. Sept. 22, 2009), (Oct. 20, Oct. 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478387/ | Petition dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Muhammad Usman Ali, a native and citizen of Pakistan, petitions for review of an order of the Board of Immigration Appeals (Board) summarily dismissing his appeal from the Immigration Judge’s decision denying relief from removal. We have reviewed the administrative record and Ali’s claims and find that he has failed to exhaust administrative remedies. See 8 U.S.C. § 1252(d)(1) (2006). We accordingly dismiss the petition for review for the reasons stated by the Board. See In re: Ali (B.I.A. June 29, 2009). We deny his request for a stay and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478391/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor B. White seeks to appeal the district court’s text orders dismissing some, but not all defendants, and denying recon*445sideration in this civil rights action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders White seeks to appeal are neither final orders nor appealable interlocutory or collateral orders. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478363/ | OPINION
PER CURIAM.
Petitioner Melvin Petersen, a prisoner proceeding pro se, seeks a writ of mandamus compelling the District Court to rule on his motion for resentencing pursuant to 18 U.S.C. § 3582.
Petersen filed his first petition for a writ of mandamus in July 2009, arguing that the District Court had not acted on his motion for rescheduling. We denied the *374petition as moot after the District Court appointed counsel and scheduled resen-tencing for October 7, 2009. Petersen was unable to attend as directed. He then filed a motion to reschedule resentencing, on November 6, 2009, and a second motion for resentencing, on December 15, 2009.
Petersen filed this (his second) mandamus petition on February 3, 2010. By an order entered on February 4, 2010, 2010 WL 481419, the District Court granted Petersen’s motion for resentencing and reduced his sentence from 240 months to 151 months. Because Petersen has now received the relief he sought in filing his mandamus petition, we will deny this mandamus petition as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478365/ | OPINION OF THE COURT
LOURIE, Circuit Judge:
Hua Lan An, a citizen of the People’s Republic of China, petitions for review of a *375final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We defer to the IJ’s factual determination, sustained by the BIA, that An’s testimony was not credible based on several perceived inconsistencies and will deny the petition for review.
I. BACKGROUND
An entered the United States in late November 2004 and submitted an application for asylum in November 2005. In her application, An stated that she had taken in and cared for a North Korean woman she found in the street, who had been injured during her escape across the border. “Several days later,” the woman was taken away by the police. An was told by her husband that a neighbor had informed him that she had been reported for keeping a smuggler in her house, and that the police were looking for her. An hid with relatives, and was told by her husband that “several” police officers came to the house “several” times. She then fled to the United States. In a phone conversation, her husband told her that the police had gone to the house “several” times looking for her. She also stated that the police had found an anti-Communist book, entitled “The Nine Criticisms towards the Communist Party” that she had sent to her husband.
For corroborating evidence, An included letters from her mother, husband, and uncle, in addition to newspaper articles with photos depicting her participation in various anti-Communist demonstrations.
At her hearing before the IJ, An testified that the North Korean woman had stayed in their home for 27 days. In response to the IJ’s question as to why An’s statement did not specify 27 days, but instead said “several,” An responded “I don’t remember.” The IJ also asked about An’s husband’s statement, which indicated that it had been “a couple of days,” and responded to the IJ’s question as to whether it was consistent with her testimony by saying that it was “[pjretty much the same.”
An also testified that her husband had said the police initially visited their home every other week, that later the visits were about once a month, and that at the time, “sometimes they come every month.” When questioned about the specific number of times the police had come, An stated “I didn’t specifically mean they come every month. Sometimes they came once every month, and sometimes they stop for a few months.” An also testified that her neighbor had told her husband that the police had shown him a warrant for An’s arrest. She was asked for evidence and, on the following day of her hearing, An submitted a letter from her neighbor in China stating that the police had shown the neighbor a warrant for An’s arrest.
At the conclusion of the two-day hearing the IJ found An’s testimony was not credible. Central to the IJ’s adverse credibility determination was the inconsistency between An’s statement that the North Korean woman stayed with her for “several” days, her testimony that it was 27 days, and the statements of her uncle and husband that it was “a couple” of days. In addition, the IJ identified other bases for the adverse credibility determination. Specifically, An produced a letter from her neighbor who had seen the arrest warrant, although she had testified that it had “been a while” since she had spoken to her neighbor. Also, An’s statement said she was “perceived to be a smuggler,” whereas she testified that she considered herself to be a good Samaritan. The IJ found problematic An’s explanation that the police were uninterested in her husband because *376he placed all the blame on her and because of her testimony that her husband had not explained this in his statement because he was afraid it would lead to marital problems. The IJ also found An’s testimony regarding the frequency of police visits to be inconsistent. Lastly, the IJ found that An had not produced sufficient evidence to show that the Chinese government is aware of her involvement in anti-government protests in the United States.
As a result of his adverse credibility determination, the IJ determined that An had not presented sufficient evidence to meet her burden of proving past persecution or a well-founded fear of future persecution in order to qualify for asylum. The IJ also found unsupported An’s alternate ground to support a claim of political persecution, based on her protests against the Chinese government while in the United States, because she is not identifiable in any photos in which she’s shown protesting and has not authored any articles or otherwise made herself identifiable. The IJ found that An did not present evidence that she more likely than not would face torture if she returned to China, and that she was therefore not entitled to protection under CAT.
On appeal, the BIA adopted the IJ’s adverse credibility determination, based on the inconsistencies cited by the IJ. The BIA specifically noted the inconsistencies as to the number of days the North Korean woman stayed in An’s home and the frequency of police visits in affirming the decision of the IJ.
An timely petitioned for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a).
II. DISCUSSION
In order to be granted asylum, An must show that she cannot return to China “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A); Shardar v. Ashcroft, 382 F.3d 318, 323 (3d Cir.2004). An applicant may establish such a fear by showing past persecution, Kibinda v. Atty. Gen., 477 F.3d 113, 119 (3d Cir.2007), or by showing a subjective fear of future persecution and an objectively reasonable possibility of suffering such persecution. Chukwu v. Att’y Gen., 484 F.3d 185, 188 (3d Cir.2007). To show eligibility for withholding of removal, An must demonstrate a clear probability that her life or freedom would be threatened on account of one of the protected grounds. 8 C.F.R. § 1208.16(b); Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005). An applicant who fails to prove eligibility for asylum “perforce fails to show entitlement to withholding of removal.” See Chukwu, 484 F.3d at 188-89 (3d Cir.2007).1
We review the decision of the Board of Immigration appeals. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005). However, we also look to the decision of the IJ where the BIA defers to or adopts the IJ’s reasoning. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). We review the BIA’s findings of fact for substantial evidence, and must uphold its determinations “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).2
An argues that there was no inconsistency between her written statement that the *377North Korean woman stayed in her home for “several” days, her testimony that the stay was 27 days, and her husband and uncle’s written statements which described the length of time as a “couple” of days. She argues that the terms “several” and “a couple” are open to interpretation, and notes that the same translator prepared statements for her husband and uncle, and may have had a particular understanding of the term. An also argues that because she was caring for the woman, her husband and uncle had no personal knowledge of the length of stay. As to her prior statement that the stay had been “several” days, An argues that the term is not inconsistent with 27 days, and that to the extent “several” was ambiguous, she had believed she could be more specific during her hearing. An argues that the testimony she gave showed confusion, not evasion.
An also argues that the BIA improperly found inconsistency regarding her statements on the frequency of police visits to her home. Her testimony that the police initially came every other week, and then once a month, and then “sometimes they come every month” was followed by testimony that sometimes the police came every month and sometimes they stopped for a few months. An contends that the later statement explained the initial statement. An also argues that the other alleged inconsistencies upon which the IJ relied were adequately explained. Specifically, she argues that there is no real inconsistency between her statement that she was wanted for smuggling and her testimony that she was harboring a North Korean woman, because the first involves the perception of her and the second involves what she perceived herself to be doing. An further asserts that her husband was not of interest to the police because he blamed the entire event on her, as she explained in her testimony, and that there is no inconsistency as her husband simply did not mention this in his letter.
The government argues that the record evidence does not compel the conclusion that An was credible, and that therefore we are bound to affirm. The government states that the inconsistency between the terms “a couple,” “several,” and the precise number 27 would alone allow for an adverse credibility determination, but also relies on contradictory testimony regarding the frequency of police visits relied upon by the BIA. The government also points out the additional inconsistencies noted by the IJ, such as whether An was in trouble for smuggling or for harboring a North Korean woman, her testimony as to why the police were not interested in her husband, and when and how the police discovered the book that An sent her husband.
We agree with the government. The record before us may well have supported an alternative finding, if that had been the IJ’s determination. However, we cannot say that any reasonable adjudicator would be compelled to conclude that An was credible. See Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992); see also 8 U.S.C. § 1252(b)(4)(B). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001) (citation omitted), and substantial evidence exists to support the determination below. Although the terms “several” and “a couple” both can relate to small numbers, a term of 27 days is quite different, and thus the IJ could reasonably have determined that An’s testimony was inconsistent and therefore not credible.3 Her testimony regarding the *378frequency of police visits is at the very least imprecise, and in conjunction with the IJ’s concern that her husband’s letter did not mention continuing visits, also supports the IJ’s conclusion as to credibility. This evidence highlighted by the BIA, when taken in concert with the IJ’s other concerns, sufficiently supports the IJ’s adverse credibility finding.
Because of the adverse credibility findings, An is thus unable to demonstrate past persecution or a well-founded fear of future persecution, as required for the grant of asylum. In addition, because An did not satisfy the standard for asylum, she cannot satisfy the higher standard of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.1991).
While we are sympathetic to the situation of someone in the position in which An claims to find herself, and recognize the difficulties in use of precise language by a person whose native language is not English, or in speaking through a translator, we are bound by the credibility findings below and the required standard of review. The Board looked carefully at the IJ’s findings and concluded that they were supported.
III. CONCLUSION
For the foregoing reasons, we deny An’s petition for review.
. An includes her claim under the CAT in this appeal, but does not present any argument regarding the BIA's CAT determination. We therefore consider this argument to be waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005).
. The IJ's credibility determination, pursuant to the REAL ID Act, was made "without regard to whether an inconsistency, inaccuracy, or falsehood [went] to the heart of the applicant’s claim.” 8 U.S.C. § 115S(b)(l)(B)(iii).
. See Merriam-Webster's Online Dictionary (defining “several” as alternatively “more than one,” "more than two but fewer than *378many,” and “being a great many,” but defining “couple” as "an indefinite small number”), available at http://www.merriam-webster.com/dictionary. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478369/ | OPINION
PER CURIAM.
Darren Keys, a federal prisoner proceeding pro se, filed a petition for a writ of mandamus. In his petition, he asks this Court to order the District Court to clarify its order assessing fees. For the reasons stated below, we will deny the petition.
In 2007, Keys initiated a civil action and applied for in forma pauperis status, which the District Court granted. The District Court informed Keys that pursuant to 28 U.S.C. § 1915, he must pay the full amount of the $350 filing fee in installments. Based on the financial information that Keys submitted, the District Court assessed an initial partial filing fee. In addition, the District Court instructed the Warden or the appropriate official to deduct from Keys’s account, each time the balance in his inmate trust fund exceeds $10, an amount no greater than 20 percent of the money credited to his account during the preceding month and forward that amount to the Clerk of the Court.
In March 2008, after considering an unopposed motion to dismiss, the District Court dismissed Keys’s complaint. Keys appealed, and this Court dismissed his action pursuant to 28 U.S.C. § 1915(e)(2)(B) because it lacked legal merit. See C.A. 08-1883. While the appeal was pending, partial filing fees continued to be deducted from Keys’s prisoner account and noted on the District Court’s docket.
In August 2009, Keys filed the instant petition for writ of mandamus or prohibition pursuant to 28 U.S.C. § 1651. Keys *383alleged that the District Court repeatedly denied his motions to clarify its assessment order under 28 U.S.C. § 1915(b)(2), specifically as to how the Warden should comply with the fee assessment order.1 Keys seeks mandamus relief from this Court to compel the District Court to clarify its assessment order.
Regardless of whether a prisoner seeks a writ of mandamus or a writ of prohibition, the appropriate inquiry is whether such an extraordinary remedy is available. See In re Sch. Asbestos Litig., 921 F.2d 1310, 1313 (3d Cir.1990); United States v. Santtini, 963 F.2d 585, 594 (3d Cir.1992) (citing In re Jackson County, 834 F.2d 150,151 (8th Cir.1987)). Before a writ will issue, the petitioner must establish that the writ is not being used as a substitute for the regular appeals process, that there is no alternative remedy or other adequate means to obtain the desired relief, and that the right to the relief sought is “clear and indisputable.” See Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); see also In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.2005).
Keys has not shown that a writ should issue. He seeks to have the District Court’s order regarding the fee assessment procedure clarified, yet the order is clear. To the extent that Keys really seeks review of how the order is being enforced, mandamus action by this Court is not appropriate at this time. We cannot say, based on our review of the District Court’s docket, that Keys has shown a “clear and indisputable” right to such relief.2 The District Court is in a much better position than we are to examine whether its assessment order is being properly executed by the Warden or other prison official. Accordingly, rather than seeking mandamus relief in this Court, Keys should make an appropriate and specific request to the District Court, and if necessary, utilize the regular appeals process. Keys may also consider utilizing the prison’s internal grievance procedures, if he has not already done so. The petition for a writ is denied.
. The District Court’s docket reflects that Keys has filed numerous other motions regarding the status of his account and the collection of filing fees. The District Court has denied each of Keys's motions.
. Based on a cursory review of the docket, some notations appear atypical or irregular. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478371/ | OPINION
PER CURIAM.
Petitioner Xin Tao Li, a native and citizen of China, entered the United States without being admitted or paroled on June 14, 2006 at Hidalgo, Texas. He is removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(I), 8 U.S.C. § 1182(a)(6)(A)(I), as an alien present in the United States without being admitted or paroled. Venue was changed from Har-lingen, Texas to Newark, New Jersey. On January 4, 2007, Li filed his application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he had been persecuted by the Chinese government on account of his practice of the outlawed Falun Gong religion.1 Li’s asylum application included a personal statement.
At his merits hearing on April 21, 2008, Li testified that, on May 10, 2006, he was home watching television when the police came to his family’s house looking for his parents, who are Falun Gong practitioners. Li told the police his parents were on a seven-day tour and were not at home. The police searched the house and found Falun Gong materials. They brought Li, who was then 20 years old, to the police station and detained him for three days. He was interrogated several times, and *385slapped, or hit, in the face two times. After he was released he was instructed to tell his parents that they must surrender to the police. When Li got back home he telephoned his parents, told them what had happened, and advised them not to come back home. Three days later, the police came back to Li’s house and asked him if his parents had returned. Li told the police he did not know if they had returned. The police told him if they did not return within seven days Li himself would be arrested. After the police left, Li again warned his parents. They went into hiding at a relative’s home in a different village. Later, they helped make arrangements for Li to come to the United States.
In addition to his testimony and the written statement accompanying his asylum application, Li produced the testimony of a friend, Mei Hian Li, who lives in Manhattan. Ms. Li testified that she has seen Li practicing Falun Gong in the United States. Several documents were admitted into evidence, including the State Department’s International Religious Freedom Report on China for 2006; an affidavit from Sheng Wang Xu, Li’s lawful permanent resident cousin and a Falun Gong practitioner; photographs showing Li practicing Falun Gong movements; copies of U.S. Congressional Resolutions requesting that China stop persecuting Falun Gong practitioners; internet and newspaper articles that discuss Falun Gong; and an affidavit from Li’s mother, among other items. In her affidavit, Li’s mother stated she and her husband practiced Falun Gong for its health benefits. A.R. 268. On May 21, 2006, they “traveled many industry sites of Shanghai, Hangzhou, Nanjing, Suzhou, Wuxi and other cities and met many local Falun Gong practitioners secretly.” See id. Li’s mother attested to the events surrounding Li’s detention and interrogation.
At the conclusion of the merits hearing, the Immigration Judge denied relief. The IJ determined that Li was not credible on the basis of several inconsistencies between his written statement and his testimony. In addition, the IJ did not believe that Li’s mother’s affidavit supported his claim. Because of these deficiencies in his case, Li failed to meet the burden of proof necessary to establish that he was a victim of past persecution in China, or that he has a well-founded fear that he would be persecuted in China upon his return. In the alternative, the IJ concluded that, even if Li was to be believed, his testimony that he was taken into custody by the police for three days, interrogated about his parents’ whereabouts, and slapped, did not support a finding of past persecution. The detention and physical assault did not rise to the level of persecution because Li was not injured. Furthermore, Li failed to establish a nexus to any of the five statutory grounds.
With respect to a well-founded fear of persecution, the IJ concluded that there was no evidence the police believed Li to be a Falun Gong practitioner. The police were interested in him so that they could locate his parents. The IJ found Li’s evidence that he is, himself, a Falun Gong practitioner, to be sparse. His mother’s affidavit did not, for example, reflect the fact that Li himself is a Falun Gong practitioner. Last, the IJ found Li’s torture claim lacking in merit.
Li appealed to the Board of Immigration Appeals, contending, among other things, that the IJ disregarded the objective evidence of China’s human rights violations with respect to the basic freedoms of Fa-lun Gong practitioners. A.R. 68. In dismissing Li’s appeal in a decision dated November 21, 2008, the Board agreed with the IJ that Li’s brief detention and interrogation did not rise to the level of perse-*386ration, see Fatin v. Immigration & Naturalization Serv., 12 F.3d 1233 (3d Cir.1993); Matter of O-Z & I-Z-, 22 I. & N. Dec. 23 (BIA 1998). The Board also noted a lack of evidence to suggest that the Chinese police have an interest in mistreating Li in the future, given that, during his past encounters, the police only asked him where his parents were, and accused them, but not him, of practicing Falun Gong. Thus, the Board concluded, the record contained no indication that the police imputed the practice of Falun Gong to Li. Moreover, the Board noted that Li’s parents continue to live in China, and Li produced no evidence that his parents have been harmed, which undermines his claim that he fears persecution in China, see, e.g., Matter of A-E-M, 211. & N. Dec. 1157 (BIA 1998). The Board did not see the need to reach the IJ’s adverse credibility determination, or her finding that Li failed to establish a nexus between his detention and mistreatment and a protected ground. The Board agreed with the IJ’s conclusion that Li failed to establish that he is more likely than not to be tortured in China by or with the acquiescence of government officials, see 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). Li now seeks review of the Board’s decision.
We will deny the petition for review. We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1), (b)(1). Our power of review extends only to the decision of the Board. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002).
Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b); see also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42)(A) of the INA defines a “refugee” as a person unable to return to her country of “nationality ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42)(A). The alien bears the burden of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a); Gao, 299 F.3d at 272. Persecution has a well-established meaning; it includes threats to life or freedom but it does not include treatment that fairly may be regarded as unfair or unjust, or even unlawful. Fatin, 12 F.3d at 1240. If past persecution is established, then the asylum applicant is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir.2007).
To establish entitlement to withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the alien must demonstrate a “clear probability” of persecution through the presentation of evidence that it is more likely than not that he would be subject to persecution if deported. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.2003). This is a more stringent standard than the asylum standard. See Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 102 n. 8 (3d Cir.2006) (citing Janusiak v. Immigration & Naturalization Serv., 947 F.2d 46, 47 (3d Cir.1991)).
*387Li has failed to show that the Board’s conclusion that he failed to demonstrate past persecution is not supported by reasonable, substantial and probative evidence on the record considered as a whole. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. The record evidence supports the finding that Li’s detention and mistreatment did not rise to the level of persecution, a term which connotes extreme conduct. Fatin, 12 F.3d at 1240. He suffered no injury and needed no medical attention as a result of what happened to him. We have held that this is insufficient to establish persecution. See, e.g., Kibinda v. Att’y Gen. of U.S., 477 F.3d 113, 119-20 (3d Cir.2007) (five-day detention resulting in minor injury did not amount to persecution); Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir.2005) (single beating that does not result in serious physical injury does not compel reversal of the Board’s decision that alien did not suffer past persecution).
Having failed to establish past persecution, Li does not have the benefit of the presumption that he has a well-founded fear of persecution. In the absence of evidence of past persecution, the alien must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir.2003), and he must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id. Li produced no individualized evidence to show that the Chinese police have an interest in mistreating him in the future. During his past encounters with the police, they were interested only in his parents’ whereabouts. The police accused his parents, but not Li himself, of being Falun Gong practitioners. Li’s evidence did not establish that the police imputed the practice of Falun Gong to him. His own testimony established that the Chinese police did not accuse him of being a Falun Gong practitioner, and their interest in him was only because he might know of his parents’ whereabouts. A.R. 181-82. As the Board pointed out, Li’s parents continue to live in China, and Li produced no evidence to show that his parents have been harmed, see, e.g., Matter of A-E-M, 21 I. & N. Dec. 1157 (reasonableness of alien’s fear of persecution is reduced when his family remains in his native country unharmed for long period of time after his departure). His mother stated in her affidavit that she and her husband are living at a relative’s home in Ronghuaxin Village; she does not indicate that she has had any trouble there. A.R. 269.
Li’s documentary evidence, including the State Department’s International Religious Freedom Report on China for 2006, indicates that some Falun Gong followers have been subject to severe treatment by Chinese authorities. He contends that the Board ignored this evidence, and it is true that the Board discussed only Li’s lack of individualized evidence. Li notes that the 2006 International Religious Freedom Report states on p. 9 that: “There were credible reports of torture and deaths in custody of Falun Gong practitioners in past years.... In April 2006, overseas Falun Gong groups claimed that a hospital in Sujiatun, Shenyang, had been the site of a ‘concentration camp’ and of mass organ harvesting, including from live prisoners.” See Petitioner’s Brief, at 26 (quoting 2006 Religious Freedom Report), & at 13-14. But Li omitted from his brief the remainder of the quoted paragraph, which states: “In response to the allegations, the Government opened the facility in question to diplomatic observers and foreign journalists. Observers found nothing inconsistent with the operation of a hospital.” A.R. 208 (emphasis added). In sum, even if we accept that Li himself has become a Falun Gong practitioner in the United States, see Petitioner’s Brief, at 23-24, he *388provided no evidence to show either that every follower of Falun Gong is persecuted in China or that he would be targeted specifically for such treatment. Accordingly, the Board’s determination that Li does not have a well-founded fear of persecution is supported by substantial evidence. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812.
Last, we address Li’s contention that the Board’s decision not to address the credibility issue “is a clear abuse of discretion.” See Petitioner’s Brief, at 18. We disagree. The Board may decide a case without considering an alternative basis upon which the Immigration Judge made his or her decision. That the Board gave Li the benefit of the doubt on the credibility issue is not cause for complaint. The Board did not err when it decided Li’s case without considering the IJ’s adverse credibility determination.
Because Li failed to show past persecution or a well-founded fear of future persecution under the lower burden of proof required for asylum, he is necessarily ineligible for withholding of removal. Cardo-za-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that Li met his burden of establishing that it is more likely than not that he will be tortured upon his return to China, 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
. Falun Gong blends aspects of Taoism, Buddhism, and the meditative techniques and physical exercises of qigong — a traditional Chinese exercise discipline — with the teachings of its founder. See generally Lin v. Att’y Gen. of U.S., 543 F.3d 114, 117 n. 3 (3d Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478373/ | OPINION
PER CURIAM.
Appellant Royce Brown seeks review of a May 8, 2009, order by the United States District Court for the District of Delaware denying Brown’s motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). We will affirm the District Court’s order.
I. Background
In June 1996, a jury found Brown guilty of possession with intent to distribute more than 50 grams of crack cocaine and unlawful possession of a firearm by a felon. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A); 18 U.S.C. § 922(g)(1). In November 1997, the District Court entered judgment and sentenced Brown as a career offender pursuant to U.S.S.G. § 4B1.1,1 to a total term of 360 months of imprisonment and five years of supervised release. Brown appealed. We affirmed the District Court’s judgment. See United States v. Brown, C.A. Nos. 96-7449, 97-7602, 173 F.3d 422 (consolidated).
On March 13, 2009, Brown filed a pro se motion under 18 U.S.C. § 3582(c)(2) in the District Court, seeking to reduce his sentence by two levels under Sentencing Guideline Amendment 706.2 Brown, like similar § 3582 movants, was appointed counsel. Brown’s counsel promptly moved to withdraw, arguing that, because Brown was sentenced as a career offender, his § 3582 claim lacked merit under United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009). The District Court granted the motion to withdraw. Brown moved for appointment of substitute counsel, but the District Court did not grant the motion.3 *390On May 8, 2009, the District Court denied Brown’s § 3582 motion.
Proceeding pro se, Brown timely filed a notice of appeal.
II. Analysis
A.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the decision to deny the motion to reduce the sentence under § 3582(c)(2) for abuse of discretion. See Mateo, 560 F.3d at 154.
Under § 3582, “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ....,” a District Court may reduce a defendant’s sentence, “after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In his § 3582 motion, Brown argued that, by enacting Amendment 706, the Sentencing Commission lowered his sentencing range.
The District Court denied Brown’s motion, stating that it “considered all of the 3553(a) factors and [found] the sentence imposed on November 6, 1997, to be the appropriate sentence.” Expressly considering our decision Mateo, 560 F.3d at 155-56, the District Court rejected any sentence reduction under Amendment 706.
The District Court did not abuse its discretion. When Brown was originally sentenced, the Distinct Court classified Brown as a career offender pursuant to U.S.S.G. § 4B1.1. Amendment 706 does not affect the sentencing range of an individual classified as a career offender under the Sentencing Guidelines. See Mateo, 560 F.3d at 155 (“Amendment 706 only affects calculation under § 2D1.1(c), and the lowering of the base offense level under § 2Dl.l(c) has no effect on the application of the career offender offense level required by § 4B1.1.”). Because Amendment 706 does not lower Brown’s sentencing range, his motion seeking a reduction in his sentence pursuant to § 3582(c)(2) lacks merit. See id.
B.
Brown responds that he is “actually innocent of the career criminal enhancement imposed upon him.” He claims that he should never has been classified as a career offender in the first instance, so he should have been sentenced under U.S.S.G. § 2Dl.l(c) instead of § 4B1.1.4 Accordingly, he seeks to be re-sentenced as a non-career offender, so that Amendment 706 may apply to reduce his sentence.
In Mateo, however, we expressly held that, in the context of a § 3582 motion premised upon Amendment 706, a District Court lacks authority to reconsider a prior determination to apply the career offender guidelines. Mateo, 560 F.3d at 156. The *391District Court correctly applied Mateo in denying Brown’s career offender claim.
C.
Apparently recognizing that Mateo forecloses his efforts under § 3582 to attack his initial classification as a career offender, Brown now attempts to proceed under 18 U.S.C. § 3742(a)(2), which permits a defendant to appeal an otherwise-final sentence if it was “imposed as a result of an incorrect application of the sentencing guidelines.” However, Brown has already taken a direct appeal of his conviction. See United States v. Brown, C.A. Nos. 96-7449, 97-7602, 173 F.3d 422. Moreover, an attempt to appeal more than a decade after sentencing is clearly untimely. See Fed. RApp. P. 4(b)(1)(A)(i).
Looking to the substance of his claim, Brown is attempting to collaterally attack his sentence. Such a claim should be pursued as a motion under 28 U.S.C. § 2255. Brown already filed one § 2255 motion in June 2000, which the District Court denied in February 2003. Accordingly, Brown must seek our authorization before filing a second or successive § 2255 motion. 28 U.S.C. § 2244. Indeed, in his opening brief, Brown makes an alternative request for relief, seeking leave to file a second or successive § 2255 motion. Although one exhibit to his brief purports to be a § 2244 application, Brown did not properly file a § 2244 application with the required supporting documents, as he must do in order to comply with the rules of this Court.5 See 3d Cir. L.A.R. 22.5. If Brown wishes to pursue relief pursuant to 28 U.S.C. § 2244 in the Court of Appeals, he must file a separate application with the Clerk of the Court and include all the documents required by 3d Cir. L.A.R. 22.5.
D.
Brown raises various contentions that the Government and his appointed counsel “entered into some off-the-record agreement” that resulted in the dismissal of his § 3582 motion. See Opening Brief at 2(a)-(b). We do not credit these vague and unsupported allegations. To the extent Brown is arguing that the District Court abused its discretion by permitting counsel to withdraw or by declining to appoint substitute counsel, we find no abuse of discretion.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
."A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a).
. In November 2007, the Sentencing Commission issued Amendment 706, which generally reduced the base offense level for crack cocaine offenses under § 2D 1.1(c) by two levels. See U.S.S.G.App. C, Amend. 706 (Nov. 1, 2007). The Commission made the amendment retroactively applicable. See U.S.S.G.App. C, Amend. 713 (Supp. May 1, 2008).
. It does not appear that the District Court ruled upon the motion.
. Brown argues that his third degree arson conviction has a mens rea of "recklessness” and therefore should not qualify as a "crime of violence.” However, Brown does not address the definition of "crime of violence” set forth in the Sentencing Guidelines, which expressly includes arson. U.S.S.G. § 4B 1.2(a)(2) ("The term 'crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... is ... arson ... or otherwise involves conduct that presents a serious potential risk of physical injury to another.”); see also United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992) (concluding that the Sentencing Commission has the power to expand the category of "career offenders” from the definition set forth in 18 U.S.C. § 16).
. A § 2244 applicant must make a prima facie showing that any claim he wishes to raise either relies upon a new, retroactively applicable rule of constitutional law or upon newly discovered evidence of actual innocence. See 28 U.S.C. § 2244(b)(2); In re Olopade, 403 F.3d 159, 162 (3d Cir.2005). We note that the document Brown has appended to his opening brief does not appear to meet the standards for § 2244 relief. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478380/ | OPINION
PER CURIAM.
Raymond W. Accolla sued the United States of America, Dr. Hendershot, and P.A. Hubble, among other defendants.1 *409His claims under Bivens v. Six Unknown Named Agents of the FBN, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act (“FTCA”) related to how he was treated for medical conditions at FCI-Schuylkill.
The three defendants filed a motion to dismiss or, in the alternative, a motion for summary judgment. They argued that the Eighth Amendment claims against Hen-dershot and Hubble should be dismissed because of Accolla’s failure to exhaust his administrative remedies. In the alternative, they contended that the claims should be dismissed because Hendershot and Hubble were not deliberately indifferent to a serious medical need. Also, they argued that the FTCA claim should be dismissed because 1) Aecolla failed to exhaust the administrative tort process when he filed his complaint before receiving notice of final agency action, 2) Aecolla did not include a certificate of merit, or 3) Aecolla failed to state a prima facie claim of negligence. With their motion, they filed a statement of facts comprising 610 paragraphs, a declaration from Hubble, Accol-la’s medical records, and evidence related to Accolla’s efforts to exhaust his administrative remedies.
Aecolla filed a motion to compel the production of his medical records; a motion (that included exhibits) requesting a decision on the issue of exhaustion of his administrative remedies; a supplemental filing relating to exhaustion of administrative remedies; a response to the summary judgment motion (without exhibits); a general denial of the defendants’ statement of facts; and more motions to compel discovery, one of which included additional exhibits relating to the exhaustion issue. The defendants sought a protective order staying all discovery requests until the resolution of their potentially case-disposi-tive motion.
The District Court, adopting the report and recommendation of the Magistrate Judge and overruling Accolla’s objections, deemed all of the defendants’ statements of facts admitted — because Aecolla did not respond to them one-by-one in compliance with a local rule — and granted the defendants’ motion. In relation to the claims against Hendershot and Hubble, the District Court concluded that Aecolla did not exhaust his administrative remedies because he did not file his administrative remedy requests at the institutional level. In relation to the FTCA claim, the District Court determined that Aecolla did not exhaust his administrative remedies because he filed his complaint prematurely (before the time for an agency ruling on his administrative claim expired). The District Court additionally concurred with the defendants that Aecolla needed to, but did not, include a certificate of merit for his claim as Pennsylvania law requires for medical negligence claims. The District Court denied all pending motions as moot.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the order granting summary judgment is plenary. See Abramson v. William Paterson College, 260 F.3d 265, 276 (3d Cir.2001). We consider the orders relating to the discovery motions for abuse of discretion. See United States v. Al Hedaithy, 392 F.3d 580, 605 (3d Cir.2004). On review, we will affirm the District Court’s decision because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
The District Court properly dismissed Aceolla’s FTCA claim. A plaintiff cannot institute an FTCA suit until he or she presents the claim to a federal agency *410and receives a final decision on the claim. See 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). If the agency does not act within six months, the failure to issue a decision may be treated as a final decision by the claimant. See id. The FTCA exhaustion requirement “is jurisdictional and cannot be waived.” Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231 (3d Cir.1976).
In this case, it is undisputed that Accolla initially filed his administrative tort claim on November 27, 2007, and that he filed a supplement to it on February 20, 2008. The supplement, treated as an amendment, reset the clock. See 28 C.F.R. 14.2(c). The agency ruled within six months of the initial filing, namely, on May 22, 2008. However, because Accolla filed his FTCA action in federal court before that date and before the expiration of the appropriate six month period, the District Court was without jurisdiction to rule on the FTCA claim.2 See McNeil, 508 U.S. at 111-12, 113 S.Ct. 1980 (holding that a court is without jurisdiction to rule on a prematurely filed action even if an agency denies the related administrative claim soon after the federal lawsuit is filed).
The District Court also properly granted summary judgment in favor of the defendants on the remaining claims under Bivens. To bring a suit challenging prison conditions, a prisoner must first properly exhaust available administrative remedies. See 42 U.S.C. § 1997e; Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (holding that exhaustion is mandatory); see Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir.2004) (explaining that the exhaustion requirement includes a procedural default component). The burden is on the defendants to prove failure to exhaust. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002).
As the District Court noted, the defendants put forth evidence that Accolla did not exhaust his administrative remedies because, although he filed four administrative remedy requests, he did not follow BOP procedures in filing them. More specifically, he filed three administrative remedy requests with the regional office before filing a complaint at the institutional level, and he filed one complaint with the central office without having sought an administrative remedy with his warden or reconsideration of his administrative tort claim. The District Court concluded that the defendants’ statement of facts, based on the evidence, was uncontested because Accolla did not respond to each statement individually. Accolla’s response was not sufficiently specific.
We note additionally that Accolla did not otherwise controvert the relevant statements of facts or evidence of his failure to exhaust despite his repeated arguments (from the initiation of his complaint through his motion and other filings relating to exhaustion) that he exhausted his available administrative remedies. Although Accolla argued that his prison counselor thwarted his efforts by failing or refusing to issue him an administrative remedy form, he conceded, in his filings to the BOP and in the District Court, that he did not undertake a predicate step in the grievance process that would have entitled him to that form. His admitted excuse for not taking the early and necessary step in each attempt was his belief that it would be futile. However, there is no futility exception to the exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 741 n. *4116, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). In short, he did not follow the proper and available procedures to exhaust his claims against Hendershot and Hubble. Accordingly, the District Court properly granted judgment in favor of the defendants.
Because the District Court properly granted the defendants’ case-dispositive motion, the District Court did not abuse its discretion in denying the remaining motions as moot. We will affirm the District Court’s judgment.
. The Magistrate Judge, screening the complaint pursuant to 28 U.S.C. § 1915A, recommended the dismissal of Accolla's claims against the rest of the defendants. Accolla initially filed objections to the Magistrate Judge’s report and recommendation (although he focused his arguments on the exhaustion of his administrative remedies), but then he filed a notice of voluntary dismissal of all the defendants but the United States, Hen-dershot, and Hubble. The District Court acknowledged the notice of dismissal and Accol-la's subsequent efforts to proceed only against the three named defendants and treated the objections as withdrawn in adopting the re*409port and recommendation. As it appears that Aecolla pursued his claims only against three defendants, claims related to the other defendants will not be considered.
. We do not consider, or express any opinion on, the alternative basis for the District Court’s decision related to the FTCA claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478382/ | OPINION
SLOVITER, Circuit Judge.
Patricia Martin appeals from the District Court’s order affirming the denial by the Administrative Law Judge (“ALJ”) of her application for Social Security Disability benefits. We will affirm.1
I.
This court’s review is limited to determining whether there was substantial evidence to support the Commissioner’s decision to deny benefits. 42 U.S.C. § 405(g). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The Commissioner’s findings of fact are binding if they are supported by substantial evidence. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.2000).
We assume the parties’ familiarity with the factual and procedural history, which we describe only briefly. Martin is a forty-four-year-old single woman with a ninth-grade education. Her prior experience includes work as an accounts payable clerk, a customer service worker, and a senior bank teller. Martin’s last job, a temporary position as an accounts payable clerk, ended in October 1999.
Martin filed for Disability Insurance Benefits and Supplemental Security Income in August 2000, alleging disability since January 1, 2000, due to back pain, knee pain, obesity, and depression. The Commissioner denied both Martin’s initial claim and her subsequent request for reconsideration. On April 26, 2002, the ALJ determined that Martin was not disabled after a hearing. The ALJ found that Martin’s obesity and knee arthritis constituted severe impairments, but that her depression and back pain were not severe. Accordingly, the ALJ determined that Martin retained the residual functional capacity (“RFC”) to return to her past relevant work experience.
The Social Security Administration Appeals Council denied Martin’s request for review of the ALJ hearing decision. Martin then filed an action in the United States. District Court for the District of New Jersey. The District Court found that the ALJ’s decision that Martin’s depression was not a severe impairment was unsupported by substantial evidence and remanded the case to the Commissioner for further proceedings.
On remand, the ALJ held another hearing. Martin testified that she experienced pain in her back, knees, and chest and suffered from constant headaches, and was still obese. Although Martin testified that she suffered from depression, she had not sought psychiatric treatment until shortly before the hearing, and she refused to take medication for fear of the side effects.
Medical Expert, Dr. Martin Fechner, testified that Martin’s condition would restrict her to sedentary work. However, the vocational expert Rocco Meóla testified that there were 50,000 jobs nationally (1,500 in New Jersey) for an individual with Martin’s impairments.
*413After the hearing, the ALJ determined that Martin retained the RFC to perform simple, repetitive work at the sedentary level, and therefore Martin was “not under a ‘disability,’ as defined in the Social Security Act.” Tr. at 282. Martin requested review of the ALJ hearing decision, which the Appeals Council denied. Martin then filed another action in the District of New Jersey, which issued a letter opinion affirming the decision of the Commissioner. Martin timely appealed.
II.
Martin is disabled for purposes of the Social Security Act (“SSA”) only if her “physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. § 423(d)(2)(A). In determining whether a claimant is disabled under the SSA, ALJs must perform a five-step, sequential evaluation. 20 C.F.R. § 404.1520. The ALJ must review: (1) the claimant’s current work activity; (2) the medical severity and duration of the claimant’s impairments; (3) whether the claimant’s impairments meet or equal the requirements of an impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to return to past relevant work; and (5) if the claimant cannot return to past relevant work, whether she can “make an adjustment to other work” in the national economy. 20 C.F.R. 404.1520(a)(4)(i)-(v). The claimant bears the burden of proof on steps one through four. Paulos v. Comm‘r of Soc. Sec., 474 F.3d 88, 92 (3d Cir.2007) (citation omitted). The Commissioner bears the burden of proving at step five that a significant number of jobs exist in the national economy that are appropriate for the claimant. Id.
The ALJ’s second decision followed this procedure in determining whether Martin met the definition of disability for purposes of the SSA. He determined that Martin had not been engaged in substantial gainful activity since her alleged disability onset date of January 1, 2000, and that Martin’s back and knee pain, obesity, and depression were “severe” impairments, “but not ‘severe’ enough to meet or medically equal, either singly or in combination” any impairments listed in the regulations. Tr. at 276. The ALJ then found that Martin’s condition prevented her from returning to her past relevant work but that she retained the RFC to do sedentary work. Taking into account Martin’s depression, the ALJ agreed with the vocational expert that there were 50,000 jobs in the national economy that Martin was capable of performing. Accordingly, the ALJ denied Martin’s claim that she was disabled within the meaning of the SSA.
The District Court remanded for the ALJ to consider how Martin’s depression impacted her RFC. Martin contends that on remand, the ALJ ignored the District Court’s order by not giving sufficient credit to the opinion of psychologist Melvin Bernstein, Ph.D., who concluded that Martin had limited ability to follow simple instructions and perform rote tasks. On remand, the ALJ adopted the District Court’s conclusion that Martin’s depression was severe. However, taking into account the opinions of physicians Christopher Oti, Joyce Nkwonta, and Praful Shah, and psychologist Wayne Tillman, Ph.D., who all concluded that Martin’s , mental state placed only mild to moderate limitations on her ability to function, the ALJ found Martin’s depression not severe enough to meet or equal a listed impairment or substantially impact her RFC. See 20 C.F.R. §§ 404.1527(d) and 416.927(d) (all medical opinions must be considered, regardless of source). He also noted that *414Martin refused to take medication for depression or see a psychiatrist and that she appeared “alert, responsive, and articulate” at the hearing. Tr. at 279.
Furthermore, the ALJ was justified in disregarding Dr. Bernstein’s opinion that Martin could not follow simple instructions because it conflicted with other opinions contained in Dr. Bernstein’s report. Specifically, Dr. Bernstein found that Martin “related adequately,” had “good latent intelligence” and intact concentration, and exhibited “relevant, logical, and goal directed” thought processes. Tr. at 211. He also recommended that Martin seek vocational counseling. Such opinions are inconsistent with Dr. Bernstein’s conclusion that Martin could not follow simple instructions. Accordingly, Dr. Bernstein’s report, along with the opinions of the other physicians and Martin’s own actions, substantially support the ALJ’s conclusion that Martin’s depression does not entitle her to disability benefits.
Martin further contends that the ALJ erred by failing to include all of her credibly established mental impairments when posing a hypothetical question to vocational expert Meóla. An ALJ must include all of the claimant’s credibly established impairments when posing a hypothetical question to a vocational expert. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.2005) (citation omitted). Here, the ALJ asked:
Mr. Meóla, please assume an individual of the claimant’s age, education, and work history. And assume further that that individual is restricted to sedentary work. And assume further that that individual by virtue of a reduction in her ability to concentrate and focus would be reduced to simple and repetitive tasks. If those are the restrictions, and those restrictions alone, would there be jobs available in the local and national economy that such an individual could perform?
Tr. at 405 (emphasis added). Because the ALJ was justified in disregarding Dr. Bernstein’s opinion that Martin could not follow simple instructions, he did not need to include anything further and the ALJ’s hypothetical question accurately portrayed Martin’s credibly established mental limitations.
Martin next argues that the ALJ improperly relied on the fact that Martin traveled to Dr. Bernstein’s office using public transportation in order to conclude that she could follow simple instructions. It is true, as Martin contends, that the ALJ speculated when he found that “the fact that the claimant came to the examination by bus, apparently unaccompanied, suggests that she was able to follow simple instructions.” Tr. at 280. However, the ALJ’s ultimate conclusion that Martin’s depression did not prevent her from following simple instructions was supported by other substantial evidence in the record. For example, Dr. Oti found that Martin’s “social interaction, adaptation and other mental activities are unaffected.” Tr. at 201. Putting aside the fact that Martin may have used public transportation alone, the ALJ’s conclusion that she could follow simple instructions is otherwise supported by the record.
Finally, Martin complains that the ALJ failed properly to consider her obesity according to the policy set forth in Social Security Ruling 02-1p, 2000 WL 628049, 67 Fed. Reg. 57859 (Sept. 12, 2002), which requires the ALJ to consider obesity when determining whether an applicant is disabled. Diaz v. Comm‘r of Soc. Sec., 577 F.3d 500, 503-04 (3d Cir.2009). However, a review of the record shows that the ALJ properly considered obesity. The ALJ discussed SSR 02-1p and considered the opinions of Drs. Oti, Nkwonta, Shah, Fechner, and Albert My-*415lod, who all found that Martin suffered from obesity. However, the ALJ determined that because Martin was able to ambulate effectively, her obesity did not meet or equal any of the listings, either alone or in combination with her other impairments. That finding is supported by substantial evidence in the record. In determining whether Martin retained the RFC to continue her past relevant work, the ALJ noted that Martin had recently lost weight and that she could perform sedentary work. That obesity was not explicitly mentioned “in the [ALJ] decision’s official ‘FINDINGS,’” Appellant’s Br. at 21, has no bearing on whether the ALJ properly considered Martin’s obesity pursuant to SSR 02-1p, see Rutherford, 399 F.3d at 553 (ALJ satisfied SSR 02-1p indirectly by adopting the opinions of doctors who were aware of the claimant’s obesity).
III.
For the above-stated reasons, we will affirm the judgment and order of the District Court.
. The District Court had jurisdiction under 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478385/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keyon Bowman, a state prisoner, 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 and the denial of his post judgment motions to alter and amend the judgment and for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Bowman v. Ozmint, No. 0:08-cv-02517-PMD, 2009 WL 3065180 (D.S.C. Sept. 22, 2009), (Oct. 20, Oct. 29, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478386/ | Petition dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Muhammad Usman Ali, a native and citizen of Pakistan, petitions for review of an order of the Board of Immigration Appeals (Board) summarily dismissing his appeal from the Immigration Judge’s decision denying relief from removal. We have reviewed the administrative record and Ali’s claims and find that he has failed to exhaust administrative remedies. See 8 U.S.C. § 1252(d)(1) (2006). We accordingly dismiss the petition for review for the reasons stated by the Board. See In re: Ali (B.I.A. June 29, 2009). We deny his request for a stay and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478390/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor B. White seeks to appeal the district court’s text orders dismissing some, but not all defendants, and denying recon*445sideration in this civil rights action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The orders White seeks to appeal are neither final orders nor appealable interlocutory or collateral orders. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478393/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harald Schmidt appeals the district court’s order, inter alia, confirming an arbitration award and awarding attorneys’ fees and expenses in favor of Citibank (South Dakota) N.A. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Schmidt v. Citibank, No. 1:08-cv-00165-JCC-JFA, 2009 WL 975379 (E.D.Va. Apr. 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478394/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Leon Thurman appeals the magistrate judge’s order * granting summary judgment for Defendants and dismissing his civil action alleging claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Thurman v. United States Bureau of Prisons, No. 8:06-cv-02458-WMC (D.S.C. Feb. 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.
The parties consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478397/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irene Vance seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accord*450ingly, we deny the petition for review for the reasons stated by the Board. Vance v. Director, Office of Workers’ Comp. Programs, No. 08-712-BLA (B.R.B. June 23, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478398/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Getsie Kiruba Diamond appeals the district court’s order granting summary judgment in favor of her former employer in this employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Diamond v. Bon Secours Hosp., No. 1:07-cv-02901-WDQ (D.Md. Apr. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478402/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frances A. Carson, widow of William H. Carson, seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung survivor’s benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Carson v. Westmoreland Coal Co., No. 08-0339-BLA (B.R.B. Dec. 19, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478405/ | PER CURIAM: *
The judgment of the district court is AFFIRMED for essentially the reasons *536set forth in the district court’s Ruling entered June 16, 2009, 2009 WL 1684689.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478406/ | PER CURIAM: *
After reviewing the record, we conclude that Adams has failed to make a substantial showing of the denial of a constitutional right, and' — for essentially the reasons stated by the district court — we DENY his request for a certificate of appealability (COA) on all issues raised therein.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478408/ | PER CURIAM: *
This appeal arises from the district court’s entry of a judgment of conviction and its imposition of sentence on Defendant-Appellant Brian Keith Harper for one count of conspiring to possess five or more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. For the following reasons, we affirm.
I. FACTUAL BACKGROUND
In November 2007, Drug Enforcement Administration (DEA) agents executed a search warrant at an apartment in Lewis-ville, Texas on suspicion that it was being used to store illegal narcotics.1 The search revealed several items associated with cocaine trafficking and led to the arrest of Codefendant Gerrardo Javier Platas-Rodriguez. When the DEA agents confronted Platas-Rodriguez, he agreed to cooperate with the investigation and informed the agents about a hidden compartment in the stairwell of the apartment. The agents recovered fifty-seven bricks of cocaine, each weighing approximately one kilogram; $33,000 in cash; a money counter; freezer bags; and wrapping materials from the compartment. Platas-Rodriguez told the agents that he had been hired to maintain the apartment as a stash house by Guadalupe Antonio Barrera, a friend in Mexico.
After Platas-Rodriguez informed the agents that another drug transaction was planned, the agents decided to conduct a controlled purchase using fake cocaine. At the agents’ request, Platas-Rodriguez contacted Barrera, who informed him that an individual, later identified as Codefen-dant Orlando Leal Martinez, would come from Mexico to represent Barrera in the sale of a quantity of cocaine. On November 30, 2007, Martinez instructed Platas-Rodriguez to come to his hotel room early the next morning to await Barrera’s instructions for completing the sale.
The next morning, Platas-Rodriguez and Martinez met at the apartment and then drove to an International House of Pancakes (IHOP) to meet the purchaser. The agents observed a dual-wheel pickup with Tennessee plates towing a trailer enter the parking lot and later identified the driver as Codefendant Frank Savage. Savage met briefly with Platas-Rodriguez and Martinez inside the IHOP before driving to a nearby hotel and checking in. Shortly afterwards, Savage returned to the IHOP and handed Martinez a piece of paper with his room number on it. Savage then drove back to the hotel, removed a suitcase containing $898,590 in cash from the trailer, and entered his room. Martinez also drove to the hotel and went to Savage’s room with a suitcase containing the fake cocaine while Platas-Rodriguez remained in the parking lot. At this point, the agents arrested all three individuals.
Soon after his arrest, Savage began cooperating with the investigation. He told the agents that the money had belonged to Harper and that he was supposed to take *559the drugs to Harper. After Savage agreed to try to contact Harper, the agents retrieved a cellular telephone that Harper had given to Savage. Harper soon called and asked Savage what was going on. Harper indicated that he had been in contact with the seller and had learned that the seller’s representative was not returning phone calls. Agent Don York, the lead case agent, recorded four brief conversations between Savage and Harper. During these conversations, Harper seemed to be concerned that something was amiss.
On December 13, 2007, Harper was arrested in Memphis, Tennessee. During an interview, Agent York asked Harper if he knew why the DEA agents were present. Harper responded that Savage was “putting [his] name out there about some dope that got hit.” Harper admitted that he had previously sold marijuana and cocaine and that his current source of cocaine was a Hispanic man named “Red.”
II. PROCEDURAL BACKGROUND
A grand jury indicted Harper, Martinez, Platas-Rodriguez, Savage, and Savage’s girlfriend, Sharif Ellis, on one count of conspiring to possess five or more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. After Harper pleaded not guilty, but before trial, the government notified Harper of its intent to introduce evidence of three extraneous offenses:
(1) Harper’s 1989 arrest and guilty plea for the possession of a controlled substance, which resulted in three years of probation;
(2) His 1990 arrest and guilty plea for the unlawful possession of a narcotic, which resulted in a $300 fine; and
(3) His 1993 arrest for drug distribution and guilty plea for the possession of crack cocaine, which resulted in a nine-month jail sentence.
Harper filed a motion in limine, requesting a hearing to determine the admissibility of this evidence under United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), which the district court granted. After the hearing, the court determined that the evidence was admissible. On the morning of trial, the district court denied Harper’s motion for a continuance. The district court also denied Harper’s motion to strike the jury panel or, in the alternative, to grant a continuance on the ground that the jury panel was not drawn from a fair cross-section of the community, in violation of the Sixth Amendment and Due Process Clause of the Fifth Amendment.
At trial, the prosecution introduced the recorded conversations between Savage and Harper through the testimony of Agent York, who identified the voice as Harper’s based on his interview with Harper after his arrest in Memphis. Agent York also defined several code words used in these conversations, which he had learned from his involvement with the investigation. At the completion of the trial, the jury found Harper guilty. The district court denied Harper’s motion for judgment of acquittal and sentenced him to thirty years of imprisonment, followed by ten years of supervised release.
III. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291. Harper appeals his conviction, arguing that several of the district court’s evidentiary decisions were erroneous. Harper also contends that the district court should have granted his motions for a continuance and his motion to quash the jury panel. In addition, Harper argues that the district court committed several errors during voir dire and that it should have granted his motion for a judgment of acquittal.
*560A. Admissibility of Harper’s Prior Offenses
We review a decision to admit evidence of prior offenses under Federal Rule of Evidence 404(b) using a heightened abuse of discretion standard. United States v. McCall, 553 F.3d 821, 827 (5th Cir.2008). Pursuant to this standard, the evidence must be “ ‘strictly relevant to the particular offense charged.’ ” United States v. Jackson, 339 F.3d 349, 354 (5th Cir.2003) (quoting United States v. Hays, 872 F.2d 582, 587 (5th Cir.1989)).
Rule 404(b) excludes evidence of extrinsic “bad acts” to prove a defendant’s bad character. Fed.R.Evid. 404(b). Such evidence may, however, be admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. In Beechum, this court set forth a two-step test for determining whether extrinsic evidence is admissible. 582 F.2d at 911. Before a district court may admit extrinsic evidence of a prior offense, “it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of [Federal Rule of Evidence] 403.” Id.
The government argues that the admission of the prior offenses satisfies the first prong of the Beechum test because Harper placed his intent at issue by pleading not guilty. This court permits the introduction of extrinsic evidence to prove criminal intent when a defendant enters a plea of not guilty, thereby requiring the government to prove the elements of its case.2 McCall, 553 F.3d at 827-28. The crime with which Harper was charged, conspiracy to possess cocaine with the intent to distribute, required the government to prove that Harper had the intent to join the conspiracy. United States v. Garcia Mendoza, 587 F.3d 682, 689 (5th Cir.2009). Evidence of Harper’s past drug transactions is relevant to establish his criminal intent. Id. Therefore, the evidence of Harper’s prior offenses satisfies the first requirement under Beechum.
The second prong of the Beechum test requires that the evidence meet the general requirements of Rule 403 and that its probative value not be substantially outweighed by its unduly prejudicial effect. This court has “consistently ... held that evidence of a defendant’s prior conviction for a similar crime is more probative than prejudicial and that any prejudicial effect may be minimized by a proper jury instruction.” United States v. Taylor, 210 F.3d 311, 318 (5th Cir.2000). The record in this case reveals that the district court took great care, to mitigate the prejudicial effect of the prior offenses. The district court limited the evidence to the judgment from each offense and Harper’s stipulation as to the narcotic involved in each case. When the government introduced the evidence, the district court provided a detailed instruction to the jury as to the limited purposes for which the prior offenses were admitted. In its final instructions to the jury, the district court also gave the instruction regarding Rule 404(b) evidence found in the pattern jury instructions for the Fifth Circuit. See Fifth Circuit Pattern Jury Instructions (Criminal *561Cases) § 1.30 (West 2001). In light of our precedent and the district court’s efforts to mitigate the prejudicial effect of the prior offenses, the district court did not abuse its discretion in admitting the extrinsic evidence. See Garcia Mendoza, 587 F.3d at 689.
Harper also argues, for the first time on appeal, that the government and the district court erroneously characterized two of his prior offenses. As these issues were not raised before the district court, we review for plain error only. United States v. Jasso, 587 F.3d 706, 709 (5th Cir.2009). “This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Id. (internal quotation marks and citations omitted). Harper argues that his 1989 offense was improperly characterized as a conviction when in fact it was a deferred adjudication. The government concedes the error, but emphasizes that the prosecution, district court, and defense counsel all made the same error and that the mischaracterization was not intentional. Harper presents no authority for the proposition that the use of the term “conviction” for his 1989 offense constitutes plain error. We hold that the mischaracterization did not affect Harper’s substantial rights and was not plain error.
Harper maintains that his 1990 offense did not actually involve a conviction for a controlled substance. This argument lacks merit. Harper stipulated to the narcotic involved in the offense and did not object when the judgment of conviction was presented to the jury with his stipulation. Moreover, the document admitted regarding Harper’s 1990 offense indicates that he pleaded guilty to possession of cocaine. There was no error arising from the introduction of Harper’s 1990 conviction.
B. Harper’s Motion for a Continuance
Harper argues that the district court abused its discretion when it denied his oral motion for a continuance made on the first day of trial. This court reviews a district court’s denial of a motion for continuance for an abuse of discretion that results in serious prejudice. United States v. German, 486 F.3d 849, 854 (5th Cir.2007). “Factors we consider when determining whether a continuance was warranted are: the amount of time available for preparation; defendant’s role in shortening the time needed; the likelihood of prejudice from denial; and the availability of discovery from the prosecution.” United States v. Messervey, 317 F.3d 457, 462 (5th Cir.2002) (citing United States v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir.1976)). At trial, Harper asserted three justifications for a continuance, each of which he reurges on appeal.
Harper first argues that a continuance was merited to allow him to retrieve potentially exculpatory recorded statements made by Savage.3 On the day before trial, Harper’s attorney discovered that Savage had made calls from a state jail, which had been recorded by the phone company, that exculpated another codefendant. The phone company informed Harper’s counsel that it could probably retrieve the recordings, but not without difficulty and some delay. On the first day of trial, Harper’s counsel pre*562sented the government with those recordings he had obtained. In response to the district court’s inquiry, the government denied having possession of any other recordings. The district court ultimately rejected, without comment, Harper’s argument that the need to obtain these other recordings merited a continuance.
Harper has failed to show that the district court’s decision resulted in “serious prejudice.” German, 486 F.3d at 854. The need to investigate an opposing witness’s prior statements can justify a continuance if linked to specific evidence, but a “speculative argument” about “the possibility of additional inconsistent statements” is insufficient. Id. Harper’s counsel had a year to investigate these statements before trial. This weighs against a finding of prejudice. See Messervey, 317 F.3d at 462. In addition, Harper had already requested and received four continuances. See United States v. Walters, 351 F.3d 159, 170 (5th Cir.2003) (upholding denial of continuance to investigate exculpatory information where defendant had previously been granted two continuances). Moreover, Harper has failed to uncover exculpatory evidence since the denial of his motion. See German, 486 F.3d at 854 (observing that the defendants’ inability to point to any newly discovered exculpatory evidence undercut their argument that the district court erred by denying their motion for a continuance). In light of these circumstances, the district court did not abuse its discretion when it denied Harper a continuance on this ground.
Harper next argues that a continuance was merited to allow him to retrieve evidence to rebut Platas-Rodriguez’s testimony. Before trial, Harper told his attorney that Platas-Rodriguez could not identify him and therefore could not link him to the conspiracy. Two days before trial, Harper’s counsel asked the prosecutors whether Platas-Rodriguez could identify Harper; they responded with uncertainty and told Harper’s counsel that they would interview Platas-Rodriguez and respond at a later date. On the day before the trial, the prosecution informed Harper’s counsel that Platas-Rodriguez could identify Harper because the two had met on three prior occasions, including once on a trip to Mexico. Harper argued that a continuance was necessary in order to obtain Harper’s records of travel to Mexico. In response to this argument, the district court made the following factual findings:
I don’t find that there’s any surprise here other than that you were never told for sure that [Platas-Rodriguez] would identify your client. But you were certainly never told that he wouldn’t identify your client. So he’s just like any other witness. And if you had wanted to confirm that, you could have done that earlier.
The district court then denied the motion for a continuance.
In light of these findings, we cannot say that the district court abused its discretion by denying the motion for a continuance on this ground. Harper has not demonstrated that he was unfairly surprised when the government revealed that Pla-tas-Rodriguez could identify him. Consequently, he has not shown that the denial of his motion resulted in serious prejudice. See German, 486 F.3d at 854; Messervey, 317 F.3d at 462.
Harper also asserts, for the first time on appeal, that the government’s filing of a motion in limine on the day of trial merited a continuance. We review this issue for plain error. Jasso, 587 F.3d at 709. Harper claims that the late filing left him unable to defend against the motion. At the time of the motion, however, Harper failed to indicate that he was unprepared to defend against it and did not request a *563continuance on this basis. When the district court asked Harper’s counsel if he “had a chance to look at” the motion, Harper’s counsel replied “Yes I have, Your Honor.” Harper’s counsel also stated that the motion for a continuance was a “totally separate issue” from the motion in limine. The district court did not commit plain error by not granting a continuance on this basis.4
C. Harper’s Fair Cross-Section Claim
“The Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn ‘from a fair cross-section of the community.’ ” United States v. Williams, 264 F.3d 561, 567 (5th Cir.2001) (quoting Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)). Harper claims that these rights were violated because only two of the forty-six prospective jurors were African-American. In order to establish a prima facie violation of the fair cross-section requirement, Harper must show:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.
Williams, 264 F.3d at 568 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). If Harper makes out a prima facie case, the burden shifts to the government to demonstrate that attainment of a fair cross section is incompatible with a significant state interest. Duren, 439 U.S. at 368, 99 S.Ct. 664.
Harper challenges the district court’s denial of his motion to strike the jury panel, arguing that he had presented a sufficient prima facie cross-section claim. When a district court denies a defendant’s motion to strike a jury panel, we review the district court’s factual findings for clear error and its conclusions of law de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir.1996). In this instance, the district court rejected Harper’s claim after finding that he had failed to present “any evidence that this jury was selected by some method other than the jury plan that has been approved by [the United States District Court for the Eastern District of Texas] and the Fifth Circuit Judicial Council.” The district court ruled that “[a]b-sent some evidence that this panel was improperly chosen, the court is going to deny your motion to quash this panel and dismiss the panel.”
We find no error in this holding. The district court correctly ruled that Harper had failed to establish a prima facie cross-section claim because he provided no evidence of the relationship between the representation of African-Americans on the venire and the number of African-Americans in the relevant community. “[A] defendant cannot establish a prima facie violation of the fair-cross-section requirement by relying solely on the composition of the jury panel at his own trial.” Alix, 86 F.3d at 434 n. 3 (citing Timmel v. Phillips, 799 *564F.2d 1083, 1086 (5th Cir.1986)); accord United States v. Olaniyi-Oke, 199 F.3d 767, 773 (5th Cir.1999). Instead, Harper must demonstrate that the percentage of African-Americans in the community differs from the composition of the venires drawn from the judicial district. See Williams, 264 F.3d at 568-69 (“Absent evidence of the percentage of African-Americans in the community, we have no baseline against which to compare the composition of Defendant’s venire.”). On appeal, Harper again relies solely on the composition of his own panel to make his prima facie case. This is legally insufficient to meet the requirements of the Du-ren test.5 Alix, 86 F.3d at 434 n. 3.
Harper also contends that even if he had failed to make a prima facie case, the district court should have granted him a continuance to allow him to research and brief the issue. We review this issue for abuse of discretion resulting in serious prejudice. German, 486 F.3d at 854. The district court does not appear to have addressed the request for a continuance apart from ruling on the merits, and the government does not address it in its brief. However, our prior decision in Alix, 86 F.3d at 435, is instructive. There, the defendant became suspicious of the veni-re’s racial profile during jury selection and sought a continuance to investigate the racial makeup of the jurisdiction. Id. at 433-34. The district court denied the motion, and we affirmed, concluding that “[i]n light of the district court’s findings, and especially in light of [the defendant’s] failure to present any evidence to the contrary, we hold that the district court did not abuse its discretion when it denied [the defendant’s] motion for a continuance.” Id. at 435. The district court in Alix made the following findings:
I do not feel it’s in the best interest of justice to grant the motion to have that type of delay in this trial. Again, while you may conduct those studies, surveys, or whatever, I am not convinced that they would indicate or prove that any of the irregularities that you are concerned with have actually happened or taken place. I am not convinced that, at least from my knowledge of the racial makeup of the Victoria Division that the Jury would be any different if we struck this panel and summoned a new panel. I think that we have selected these potential jurors in manner that has been used throughout the Southern District. I am not aware of any irregularities involved in that process.
Id. at 435 n. 4. The district court in this case likewise made specific findings that Harper had failed to present any evidence that the jury was selected in a manner other than that which had been approved by the district court and the Fifth Circuit Judicial Council. And like the defendant in Alix, Harper has not identified any evidence that he might have been able to discover had the continuance been granted. Therefore, we hold that the district court did not abuse its discretion when it denied Harper’s motion for a continuance.
D. Adequacy of the Voir Dire
We review challenges to the scope of voir dire proceedings under an abuse of discretion standard. United States v. Munoz, 150 F.3d 401, 412 (5th Cir.1998). “The district court has broad discretion in determining how best to conduct voir dire *565and in deciding whether to excuse a juror,” and “[a] court abuses its discretion when the scope of voir dire is inadequate to discover bias and deprives the defendant of an opportunity to make reasonable use of peremptory challenges.” United States v. Greer, 968 F.2d 433, 435 (5th Cir.1992) (en banc) (per curiam) (citations omitted). Harper challenges the district court’s voir dire on two grounds. First, he argues that the district court abused its discretion by refusing his request to ask the venire-members general questions about their education and their children. Second, Harper contends that the district court allowed the prosecutor to mislead the jury during voir dire.
Harper submitted a proposed written voir dire questionnaire with several questions, including one that sought information regarding the veniremembers’ level of education, and one that sought information regarding the sex, age, and occupation of the veniremembers’ children. During a pretrial hearing, the district court voiced concern that the questions were “too personal” and “encouraged comparing jurors with each other.” The district court stated that it “didn’t want anybody to feel embarrassed who comes here for jury service.” The district court later entered an order denying Harper’s request to submit the questionnaire, noting that many of the questions in the questionnaire were customarily asked by the district court.
During voir dire, the district court permitted the parties to question individual members regarding personal matters, some of which involved the venire-members’ children. The district court began by asking the members of the venire a set of nine basic questions. Afterwards, the parties were allowed to pose questions to the group, with follow-up questions for individual members of the venire. The examination explored the venire for bias, and elicited a free and open exchange between the venire, the district court, and counsel. The district court and the parties asked the members of the venire whether they knew anyone who had prior involvement with drugs or who worked in law enforcement. The district court and the parties also asked the veniremembers whether they knew anyone associated with the case and whether their personal beliefs would interfere with their impartiality. Harper challenged three prospective jurors for cause, all of which the district court granted. Harper did not object to the jury that was empaneled.
Under these facts, the district court did not abuse its discretion by denying Harper the opportunity to submit his proposed questionnaire. A district court’s failure to ask a proposed question does not constitute an abuse of discretion if the overall voir dire examination and the instructions given at trial adequately protect a party’s interests. United States v. Harper, 527 F.3d 396, 409-10 (5th Cir.2008); United States v. Williams, 573 F.2d 284, 287 (5th Cir.1978). The proper test is whether the district court’s “inquiry reasonably assured that any bias or prejudice against [Harper] would have been discovered if present.” United States v. Quiroz-Hernandez, 48 F.3d 858, 869 (5th Cir.1995). Haying reviewed the record in this case, we are satisfied that this standard was met.
Harper next argues that the district court permitted the prosecutor to mislead the jury during voir dire. To the extent that Harper objected to the conduct of the voir dire, our review is for abuse of discretion. Munoz, 150 F.3d at 412. Alleged errors that were not preserved for review by a timely objection are reviewed for plain error. United States v. Fambro, 526 F.3d 836, 847 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008). Harper’s first objection came after *566the government described the crime of conspiracy as follows:
A conspiracy is an illegal agreement. It’s not violating the law, it’s an agreement to violate the law. It’s the defendant and one other person on one occasion entering into an agreement to break the law.... The defendant has to enter into it voluntarily, willfully, with the intent to further the agreement.
Harper objected to this characterization, arguing that there must be “an [overt] act in furtherance of [the conspiracy].” This argument is without merit; conspiracy under 21 U.S.C. § 846 requires no overt act. United States v. Shabani, 518 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (“This case asks us to consider whether 21 U.S.C. § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.”).
Harper’s second objection came when the prosecutor examined the members of the venire regarding testifying codefen-dants. Harper objected that the prosecutor’s inquiry was “getting into the internal operating procedures of the United States Attorney’s Office, committee meetings and things.” The district court sustained that objection and limited the government’s discussion of that topic. On appeal, Harper argues that this line of questioning also confused the venire to the point that the potential jurors were unable to understand that the government was referring to cooperating witnesses. This objection was never raised before the district court, however, and the district court did not commit plain error by allowing the inquiry after limiting its scope.
Other than these two objections, Harper presents only a running description of the proceedings without specific argument. By failing to adequately brief these issues, Harper has waived them. United States v. Skilling, 554 F.3d 529, 568 n. 63 (5th Cir.), cert. granted, - U.S. -, 130 S.Ct. 393, 175 L.Ed.2d 267 (2009).
E. Agent York’s Testimony
Harper argues that the district court improperly admitted audio tapes of conversations between himself and Savage based on the testimony of Agent York, who recorded them. Harper also argues that the district court erred in permitting Agent York to testify about his understanding of the contents of the conversations. We review a district court’s determination of the admissibility of evidence under a heightened abuse of discretion standard. United States v. Yanez Sosa, 513 F.3d 194, 199-200 (5th Cir.2008).
The admissibility of opinions by lay witnesses is governed by Federal Rule of Evidence 701, which provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
“Testimony by a witness that he recognized the accused by his voice is admissible, provided that the witness has some basis for comparison of the accused’s voice with the voice which he has identified as that of the accused.” United States v. Ladd, 527 F.2d 1341, 1343 (5th Cir.1976) (citation omitted); see also United States v. Lampton, 158 F.3d 251, 259 (5th Cir.1998) (holding that it was not an abuse of discretion for the district court to permit an FBI agent to identify the voice of the defendant based on prior personal contact with him). Once the basis for voice identi*567fication is established, it is up to the jury to decide whether the testimony is credible and how much weight to give it. United States v. Mendoza, 522 F.3d 482, 489 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 269, 172 L.Ed.2d 200 (2008).
Similarly, an agent may offer lay testimony of his opinions concerning the meaning of terms used by drug dealers if those opinions are based on his personal perceptions from the investigation. See United States v. Miranda, 248 F.3d 434, 441 (5th Cir.2001) (“[The agent’s] extensive participation in the investigation of this conspiracy ... allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions.”); see also United States v. Rollins, 544 F.3d 820, 831-32 (7th Cir.2008) (“We find that the trial judge did not err in concluding that [the agent’s] ‘impressions’ testimony was rationally based on his first-hand perception of the intercepted phone calls about which he testified as well as his personal, extensive experience with this particular drug investigation.”).
The district court did not abuse its discretion by admitting the tapes of Harper’s conversations with Savage through Agent York’s testimony. Agent York’s interview with Harper in Memphis provided him with a “basis for comparison of [Harper’s] voice with the voice ... he ... identified as that of [Harper].” Ladd, 527 F.2d at 1343 (citation omitted). Agent York’s impressions of the meanings of some of the terms in the recorded conversation were likewise properly admitted. Having served as the lead agent in the investigation, Agent York became familiar with the drug ring. He participated in the search at the apartment, interviewed Platas-Rod-riguez, helped to set up the sting operation, and was interviewing Savage when the conversations with Harper were recorded. This experience is sufficient to render his testimony admissible under Rule 701. See Miranda, 248 F.3d at 441.6
F. Prosecutor’s Closing Argument
Harper’s last argument focuses on allegedly improper comments made by the prosecutor during her closing argument. As Harper did not raise the issue of the prosecution’s closing argument before the district court, our review of that issue is for plain error only. United States v. Munoz, 150 F.3d 401, 415 (5th Cir.1998). We take a two-step approach in reviewing a charge of prosecutorial misconduct during closing argument. Id. at 414. We first decide whether the prosecutor made an improper remark. Id. (citation omitted). If a statement was improper, we then consider whether it prejudiced the defendant’s substantive rights. Id. at 415 (citation omitted). In making this determination, we assess “ ‘(1) the magnitude of the statement’s prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant’s guilt.’ ” Id. at 415 (quoting United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir.1995)).
Harper claims that the prosecutor improperly commented on his post-arrest silence during closing argument. It is the general rule that a prosecutor may not argue that a jury should infer a defendant’s guilt from his post-arrest silence. United States v. Rodriguez, 260 F.3d 416, 420-21 (5th Cir.2001) (citation omitted). In this instance, the prosecutor made the following statement regarding Harper’s interview with Agent York:
*568Again it’s important what Brian Harper doesn’t say at this point. “What do you mean? What load got knocked off? Why wouldn’t he work with me? What load got knocked off.” Never says that. Doesn’t say anything. He says, “Maybe. He might keep working with me.” An admission? Oh you bet. What you don’t say is just as important as what you do say.
In United States v. Laury, we found that the prosecution had improperly used the defendant’s post-arrest silence to impeach him. 985 F.2d 1293, 1303 (5th Cir.1993). In that case, the defendant had made statements to the FBI, but did not mention his whereabouts at the time of the alleged robbery. Id. We held that the prosecution impermissibly used the defendant’s statements on those unrelated issues to discredit his alibi. Id. We noted that although the defendant “did not remain completely silent following his arrest” the prosecutor did not have “unbridled freedom to impeach [him] by commenting on what he did not say following his arrest.” Id. at 1304 n. 10.
Harper also contends that the prosecutor improperly vouched for the credibility of certain trial witnesses. “[A] personal assertion by a prosecutor of a government witness’s credibility is impermissible.” United States v. Garcia, 522 F.3d 597, 601 (5th Cir.2008) (citation omitted). Harper points to seven statements made by the prosecution that he alleges improperly bolstered the credibility of certain witnesses for the government. The first two statements occurred while the prosecutor argued to the jury that Savage had been truthful. The prosecutor asked the jury to “imagine the fear and panic” experienced by Savage at the moment of his arrest and then infer that Savage was “going to the tell the truth.” The prosecutor then argued that it would be “quite a sophisticated lie on Frank Savage’s part” to falsely implicate Harper “within an hour of his very stressful arrest” and asserted that the jury should infer that Savage was “telling the truth.” The third statement was made while the prosecutor was explaining that Savage had honestly told the agents that a particular photograph did not depict Harper. The prosecutor observed: “Frank Savage, just like he has all along, told the truth and he said, ‘[n]o that is not [Harper].’ ” These statements give us some pause, as they could be read as “personal assertion[s]” of Savage’s credibility. Garcia, 522 F.3d at 601.
The fourth, fifth, and sixth statements make up a large part of the prosecution’s argument that the testimony of Platas-Rodriguez was consistent with Savage’s testimony and we do not recite them in their entirety. Having reviewed the entire exchange, however, we conclude that the prosecutor’s arguments highlighted the consistencies between Platas-Rodriguez’s and Savage’s testimony, and urged the jury to infer that both men were being truthful. “[A] prosecutor may recite to the jury those inferences and conclusions [she] wishes them to draw from the evidence so long as those inferences are grounded upon the evidence.” United States v. Loney, 959 F.2d 1332, 1343 (5th Cir.1992).
The seventh comment was made as part of the prosecution’s rebuttal argument. Harper’s counsel had previously argued to the jury that the government had been dilatory in interviewing Savage and playing the recorded conversations for him. The prosecution responded:
[i]n terms of when to interview the witnesses and when to investigate the case, if we talked to the witnesses five or six times, imagine what the flip-side of that argument would be.... The flip-side of the argument would be that we were over there coaching him. We weren’t. We asked them to tell us the truth, and that is what they told us.
*569We are somewhat troubled by the prosecutor’s use of the first-person pronoun. This statement arguably suggests that the prosecutor had additional knowledge that Savage was telling the truth based on her out-of-court interactions with him.
Even if we conclude that some of the prosecutor’s comments “fell beyond the bounds of permissible behavior,” they did not prejudice Harper’s substantive rights. Munoz, 150 F.3d at 415. The district court instructed the jury immediately before closing argument that “any statements, objections, or arguments made by the lawyers are not evidence.” This cautionary instruction mitigated any prejudicial effect of the prosecutor’s comments. See id. (citing United States v. Lokey, 945 F.2d 825, 837 (5th Cir.1991)). As Harper has failed to demonstrate prejudice to his substantial rights, he cannot obtain relief under the plain error standard. United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5th Cir.2008).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. As Harper appeals the denial of his motion for a judgment of acquittal, we view " ‘the evidence and the inferences therefrom in the light most favorable to the verdict.’ " United States v. Fuchs, 467 F.3d 889, 904 (5th Cir.2006) (quoting United States v. Anderson, 174 F.3d 515, 522 (5th Cir.1999)).
. During oral argument, Harper's counsel argued that the government was on notice that Harper was not placing his intent at issue because his defense was “centered around identity.” While the opening statement of Harper's trial counsel did indeed focus primarily on the issue of identity, this falls far short of " ‘enforceable pre-trial assurances that he intend[ed] not to dispute criminal intent.' " McCall, 553 F.3d at 828 (alteration in original) (quoting United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980)).
. Harper attempts to characterize this issue as a violation of the prosecution’s obligation to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, he did not raise a Brady claim in the district court, and we do not consider such claims when they are raised for the first time on appeal. United States v. Skilling, 554 F.3d 529, 568 n. 63 (5th Cir.), cert. granted, - U.S. -, 130 S.Ct. 393, 175 L.Ed.2d 267 (2009).
. In his opening brief, Harper claims that he was prejudiced by the late arrival of the government’s “Notice of Sentence Enhancement.” We do not address this claim, as Harper has dedicated little more than one sentence to it and makes no specific argument as to why the notice caused him prejudice. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir.1983) ("Claims not pressed on appeal are deemed abandoned.”) (citation omitted); cf. F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.1994) (”[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court.”).
. The same failure also defeats Harper's parallel Equal Protection claim alluded to in the briefing of his Sixth Amendment claim. See United States v. McKinney, 53 F.3d 664, 671 (5th Cir.1995) (“The disparity between 2.28% eligible African-American population, and no African Americans on the venire panel does not raise the inference that racial discrimination rather than chance produced the result." (citing Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972))).
. Harper also argues that the district court permitted Agent York to render legal conclusions regarding two assets that were seized. Harper did not raise this objection at trial and Agent York’s testimony conveyed facts rather than legal conclusions. The district court did not plainly err in admitting this testimony. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478410/ | PER CURIAM: *
The attorney appointed to represent Osvaldo Ruiz-Ramirez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ruiz-Ramirez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsi*588bilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Ctr. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478395/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Leon Thurman appeals the magistrate judge’s order * granting summary judgment for Defendants and dismissing his civil action alleging claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Thurman v. United States Bureau of Prisons, No. 8:06-cv-02458-WMC (D.S.C. Feb. 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.
The parties consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c) (2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478399/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Getsie Kiruba Diamond appeals the district court’s order granting summary judgment in favor of her former employer in this employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Diamond v. Bon Secours Hosp., No. 1:07-cv-02901-WDQ (D.Md. Apr. 14, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478403/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frances A. Carson, widow of William H. Carson, seeks review of the Benefits Review Board’s decision and order affirming the administrative law judge’s denial of black lung survivor’s benefits pursuant to 30 U.S.C. §§ 901-945 (2006). Our review of the record discloses that the Board’s decision is based upon substantial evidence and is without reversible error. Accordingly, we deny the petition for review for the reasons stated by the Board. Carson v. Westmoreland Coal Co., No. 08-0339-BLA (B.R.B. Dec. 19, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478404/ | PER CURIAM: *
The judgment of the district court is AFFIRMED for essentially the reasons *536set forth in the district court’s Ruling entered June 16, 2009, 2009 WL 1684689.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478409/ | PER CURIAM: *
This appeal arises from the district court’s entry of a judgment of conviction and its imposition of sentence on Defendant-Appellant Brian Keith Harper for one count of conspiring to possess five or more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. For the following reasons, we affirm.
I. FACTUAL BACKGROUND
In November 2007, Drug Enforcement Administration (DEA) agents executed a search warrant at an apartment in Lewis-ville, Texas on suspicion that it was being used to store illegal narcotics.1 The search revealed several items associated with cocaine trafficking and led to the arrest of Codefendant Gerrardo Javier Platas-Rodriguez. When the DEA agents confronted Platas-Rodriguez, he agreed to cooperate with the investigation and informed the agents about a hidden compartment in the stairwell of the apartment. The agents recovered fifty-seven bricks of cocaine, each weighing approximately one kilogram; $33,000 in cash; a money counter; freezer bags; and wrapping materials from the compartment. Platas-Rodriguez told the agents that he had been hired to maintain the apartment as a stash house by Guadalupe Antonio Barrera, a friend in Mexico.
After Platas-Rodriguez informed the agents that another drug transaction was planned, the agents decided to conduct a controlled purchase using fake cocaine. At the agents’ request, Platas-Rodriguez contacted Barrera, who informed him that an individual, later identified as Codefen-dant Orlando Leal Martinez, would come from Mexico to represent Barrera in the sale of a quantity of cocaine. On November 30, 2007, Martinez instructed Platas-Rodriguez to come to his hotel room early the next morning to await Barrera’s instructions for completing the sale.
The next morning, Platas-Rodriguez and Martinez met at the apartment and then drove to an International House of Pancakes (IHOP) to meet the purchaser. The agents observed a dual-wheel pickup with Tennessee plates towing a trailer enter the parking lot and later identified the driver as Codefendant Frank Savage. Savage met briefly with Platas-Rodriguez and Martinez inside the IHOP before driving to a nearby hotel and checking in. Shortly afterwards, Savage returned to the IHOP and handed Martinez a piece of paper with his room number on it. Savage then drove back to the hotel, removed a suitcase containing $898,590 in cash from the trailer, and entered his room. Martinez also drove to the hotel and went to Savage’s room with a suitcase containing the fake cocaine while Platas-Rodriguez remained in the parking lot. At this point, the agents arrested all three individuals.
Soon after his arrest, Savage began cooperating with the investigation. He told the agents that the money had belonged to Harper and that he was supposed to take *559the drugs to Harper. After Savage agreed to try to contact Harper, the agents retrieved a cellular telephone that Harper had given to Savage. Harper soon called and asked Savage what was going on. Harper indicated that he had been in contact with the seller and had learned that the seller’s representative was not returning phone calls. Agent Don York, the lead case agent, recorded four brief conversations between Savage and Harper. During these conversations, Harper seemed to be concerned that something was amiss.
On December 13, 2007, Harper was arrested in Memphis, Tennessee. During an interview, Agent York asked Harper if he knew why the DEA agents were present. Harper responded that Savage was “putting [his] name out there about some dope that got hit.” Harper admitted that he had previously sold marijuana and cocaine and that his current source of cocaine was a Hispanic man named “Red.”
II. PROCEDURAL BACKGROUND
A grand jury indicted Harper, Martinez, Platas-Rodriguez, Savage, and Savage’s girlfriend, Sharif Ellis, on one count of conspiring to possess five or more kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. After Harper pleaded not guilty, but before trial, the government notified Harper of its intent to introduce evidence of three extraneous offenses:
(1) Harper’s 1989 arrest and guilty plea for the possession of a controlled substance, which resulted in three years of probation;
(2) His 1990 arrest and guilty plea for the unlawful possession of a narcotic, which resulted in a $300 fine; and
(3) His 1993 arrest for drug distribution and guilty plea for the possession of crack cocaine, which resulted in a nine-month jail sentence.
Harper filed a motion in limine, requesting a hearing to determine the admissibility of this evidence under United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc), which the district court granted. After the hearing, the court determined that the evidence was admissible. On the morning of trial, the district court denied Harper’s motion for a continuance. The district court also denied Harper’s motion to strike the jury panel or, in the alternative, to grant a continuance on the ground that the jury panel was not drawn from a fair cross-section of the community, in violation of the Sixth Amendment and Due Process Clause of the Fifth Amendment.
At trial, the prosecution introduced the recorded conversations between Savage and Harper through the testimony of Agent York, who identified the voice as Harper’s based on his interview with Harper after his arrest in Memphis. Agent York also defined several code words used in these conversations, which he had learned from his involvement with the investigation. At the completion of the trial, the jury found Harper guilty. The district court denied Harper’s motion for judgment of acquittal and sentenced him to thirty years of imprisonment, followed by ten years of supervised release.
III. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291. Harper appeals his conviction, arguing that several of the district court’s evidentiary decisions were erroneous. Harper also contends that the district court should have granted his motions for a continuance and his motion to quash the jury panel. In addition, Harper argues that the district court committed several errors during voir dire and that it should have granted his motion for a judgment of acquittal.
*560A. Admissibility of Harper’s Prior Offenses
We review a decision to admit evidence of prior offenses under Federal Rule of Evidence 404(b) using a heightened abuse of discretion standard. United States v. McCall, 553 F.3d 821, 827 (5th Cir.2008). Pursuant to this standard, the evidence must be “ ‘strictly relevant to the particular offense charged.’ ” United States v. Jackson, 339 F.3d 349, 354 (5th Cir.2003) (quoting United States v. Hays, 872 F.2d 582, 587 (5th Cir.1989)).
Rule 404(b) excludes evidence of extrinsic “bad acts” to prove a defendant’s bad character. Fed.R.Evid. 404(b). Such evidence may, however, be admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. In Beechum, this court set forth a two-step test for determining whether extrinsic evidence is admissible. 582 F.2d at 911. Before a district court may admit extrinsic evidence of a prior offense, “it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of [Federal Rule of Evidence] 403.” Id.
The government argues that the admission of the prior offenses satisfies the first prong of the Beechum test because Harper placed his intent at issue by pleading not guilty. This court permits the introduction of extrinsic evidence to prove criminal intent when a defendant enters a plea of not guilty, thereby requiring the government to prove the elements of its case.2 McCall, 553 F.3d at 827-28. The crime with which Harper was charged, conspiracy to possess cocaine with the intent to distribute, required the government to prove that Harper had the intent to join the conspiracy. United States v. Garcia Mendoza, 587 F.3d 682, 689 (5th Cir.2009). Evidence of Harper’s past drug transactions is relevant to establish his criminal intent. Id. Therefore, the evidence of Harper’s prior offenses satisfies the first requirement under Beechum.
The second prong of the Beechum test requires that the evidence meet the general requirements of Rule 403 and that its probative value not be substantially outweighed by its unduly prejudicial effect. This court has “consistently ... held that evidence of a defendant’s prior conviction for a similar crime is more probative than prejudicial and that any prejudicial effect may be minimized by a proper jury instruction.” United States v. Taylor, 210 F.3d 311, 318 (5th Cir.2000). The record in this case reveals that the district court took great care, to mitigate the prejudicial effect of the prior offenses. The district court limited the evidence to the judgment from each offense and Harper’s stipulation as to the narcotic involved in each case. When the government introduced the evidence, the district court provided a detailed instruction to the jury as to the limited purposes for which the prior offenses were admitted. In its final instructions to the jury, the district court also gave the instruction regarding Rule 404(b) evidence found in the pattern jury instructions for the Fifth Circuit. See Fifth Circuit Pattern Jury Instructions (Criminal *561Cases) § 1.30 (West 2001). In light of our precedent and the district court’s efforts to mitigate the prejudicial effect of the prior offenses, the district court did not abuse its discretion in admitting the extrinsic evidence. See Garcia Mendoza, 587 F.3d at 689.
Harper also argues, for the first time on appeal, that the government and the district court erroneously characterized two of his prior offenses. As these issues were not raised before the district court, we review for plain error only. United States v. Jasso, 587 F.3d 706, 709 (5th Cir.2009). “This court finds plain error when: (1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant’s substantial rights.” Id. (internal quotation marks and citations omitted). Harper argues that his 1989 offense was improperly characterized as a conviction when in fact it was a deferred adjudication. The government concedes the error, but emphasizes that the prosecution, district court, and defense counsel all made the same error and that the mischaracterization was not intentional. Harper presents no authority for the proposition that the use of the term “conviction” for his 1989 offense constitutes plain error. We hold that the mischaracterization did not affect Harper’s substantial rights and was not plain error.
Harper maintains that his 1990 offense did not actually involve a conviction for a controlled substance. This argument lacks merit. Harper stipulated to the narcotic involved in the offense and did not object when the judgment of conviction was presented to the jury with his stipulation. Moreover, the document admitted regarding Harper’s 1990 offense indicates that he pleaded guilty to possession of cocaine. There was no error arising from the introduction of Harper’s 1990 conviction.
B. Harper’s Motion for a Continuance
Harper argues that the district court abused its discretion when it denied his oral motion for a continuance made on the first day of trial. This court reviews a district court’s denial of a motion for continuance for an abuse of discretion that results in serious prejudice. United States v. German, 486 F.3d 849, 854 (5th Cir.2007). “Factors we consider when determining whether a continuance was warranted are: the amount of time available for preparation; defendant’s role in shortening the time needed; the likelihood of prejudice from denial; and the availability of discovery from the prosecution.” United States v. Messervey, 317 F.3d 457, 462 (5th Cir.2002) (citing United States v. Uptain, 531 F.2d 1281, 1286-87 (5th Cir.1976)). At trial, Harper asserted three justifications for a continuance, each of which he reurges on appeal.
Harper first argues that a continuance was merited to allow him to retrieve potentially exculpatory recorded statements made by Savage.3 On the day before trial, Harper’s attorney discovered that Savage had made calls from a state jail, which had been recorded by the phone company, that exculpated another codefendant. The phone company informed Harper’s counsel that it could probably retrieve the recordings, but not without difficulty and some delay. On the first day of trial, Harper’s counsel pre*562sented the government with those recordings he had obtained. In response to the district court’s inquiry, the government denied having possession of any other recordings. The district court ultimately rejected, without comment, Harper’s argument that the need to obtain these other recordings merited a continuance.
Harper has failed to show that the district court’s decision resulted in “serious prejudice.” German, 486 F.3d at 854. The need to investigate an opposing witness’s prior statements can justify a continuance if linked to specific evidence, but a “speculative argument” about “the possibility of additional inconsistent statements” is insufficient. Id. Harper’s counsel had a year to investigate these statements before trial. This weighs against a finding of prejudice. See Messervey, 317 F.3d at 462. In addition, Harper had already requested and received four continuances. See United States v. Walters, 351 F.3d 159, 170 (5th Cir.2003) (upholding denial of continuance to investigate exculpatory information where defendant had previously been granted two continuances). Moreover, Harper has failed to uncover exculpatory evidence since the denial of his motion. See German, 486 F.3d at 854 (observing that the defendants’ inability to point to any newly discovered exculpatory evidence undercut their argument that the district court erred by denying their motion for a continuance). In light of these circumstances, the district court did not abuse its discretion when it denied Harper a continuance on this ground.
Harper next argues that a continuance was merited to allow him to retrieve evidence to rebut Platas-Rodriguez’s testimony. Before trial, Harper told his attorney that Platas-Rodriguez could not identify him and therefore could not link him to the conspiracy. Two days before trial, Harper’s counsel asked the prosecutors whether Platas-Rodriguez could identify Harper; they responded with uncertainty and told Harper’s counsel that they would interview Platas-Rodriguez and respond at a later date. On the day before the trial, the prosecution informed Harper’s counsel that Platas-Rodriguez could identify Harper because the two had met on three prior occasions, including once on a trip to Mexico. Harper argued that a continuance was necessary in order to obtain Harper’s records of travel to Mexico. In response to this argument, the district court made the following factual findings:
I don’t find that there’s any surprise here other than that you were never told for sure that [Platas-Rodriguez] would identify your client. But you were certainly never told that he wouldn’t identify your client. So he’s just like any other witness. And if you had wanted to confirm that, you could have done that earlier.
The district court then denied the motion for a continuance.
In light of these findings, we cannot say that the district court abused its discretion by denying the motion for a continuance on this ground. Harper has not demonstrated that he was unfairly surprised when the government revealed that Pla-tas-Rodriguez could identify him. Consequently, he has not shown that the denial of his motion resulted in serious prejudice. See German, 486 F.3d at 854; Messervey, 317 F.3d at 462.
Harper also asserts, for the first time on appeal, that the government’s filing of a motion in limine on the day of trial merited a continuance. We review this issue for plain error. Jasso, 587 F.3d at 709. Harper claims that the late filing left him unable to defend against the motion. At the time of the motion, however, Harper failed to indicate that he was unprepared to defend against it and did not request a *563continuance on this basis. When the district court asked Harper’s counsel if he “had a chance to look at” the motion, Harper’s counsel replied “Yes I have, Your Honor.” Harper’s counsel also stated that the motion for a continuance was a “totally separate issue” from the motion in limine. The district court did not commit plain error by not granting a continuance on this basis.4
C. Harper’s Fair Cross-Section Claim
“The Sixth Amendment and the Due Process Clause of the Fifth Amendment require that a jury be drawn ‘from a fair cross-section of the community.’ ” United States v. Williams, 264 F.3d 561, 567 (5th Cir.2001) (quoting Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)). Harper claims that these rights were violated because only two of the forty-six prospective jurors were African-American. In order to establish a prima facie violation of the fair cross-section requirement, Harper must show:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this un-derrepresentation is due to systematic exclusion of the group in the jury-selection process.
Williams, 264 F.3d at 568 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). If Harper makes out a prima facie case, the burden shifts to the government to demonstrate that attainment of a fair cross section is incompatible with a significant state interest. Duren, 439 U.S. at 368, 99 S.Ct. 664.
Harper challenges the district court’s denial of his motion to strike the jury panel, arguing that he had presented a sufficient prima facie cross-section claim. When a district court denies a defendant’s motion to strike a jury panel, we review the district court’s factual findings for clear error and its conclusions of law de novo. United States v. Alix, 86 F.3d 429, 434 (5th Cir.1996). In this instance, the district court rejected Harper’s claim after finding that he had failed to present “any evidence that this jury was selected by some method other than the jury plan that has been approved by [the United States District Court for the Eastern District of Texas] and the Fifth Circuit Judicial Council.” The district court ruled that “[a]b-sent some evidence that this panel was improperly chosen, the court is going to deny your motion to quash this panel and dismiss the panel.”
We find no error in this holding. The district court correctly ruled that Harper had failed to establish a prima facie cross-section claim because he provided no evidence of the relationship between the representation of African-Americans on the venire and the number of African-Americans in the relevant community. “[A] defendant cannot establish a prima facie violation of the fair-cross-section requirement by relying solely on the composition of the jury panel at his own trial.” Alix, 86 F.3d at 434 n. 3 (citing Timmel v. Phillips, 799 *564F.2d 1083, 1086 (5th Cir.1986)); accord United States v. Olaniyi-Oke, 199 F.3d 767, 773 (5th Cir.1999). Instead, Harper must demonstrate that the percentage of African-Americans in the community differs from the composition of the venires drawn from the judicial district. See Williams, 264 F.3d at 568-69 (“Absent evidence of the percentage of African-Americans in the community, we have no baseline against which to compare the composition of Defendant’s venire.”). On appeal, Harper again relies solely on the composition of his own panel to make his prima facie case. This is legally insufficient to meet the requirements of the Du-ren test.5 Alix, 86 F.3d at 434 n. 3.
Harper also contends that even if he had failed to make a prima facie case, the district court should have granted him a continuance to allow him to research and brief the issue. We review this issue for abuse of discretion resulting in serious prejudice. German, 486 F.3d at 854. The district court does not appear to have addressed the request for a continuance apart from ruling on the merits, and the government does not address it in its brief. However, our prior decision in Alix, 86 F.3d at 435, is instructive. There, the defendant became suspicious of the veni-re’s racial profile during jury selection and sought a continuance to investigate the racial makeup of the jurisdiction. Id. at 433-34. The district court denied the motion, and we affirmed, concluding that “[i]n light of the district court’s findings, and especially in light of [the defendant’s] failure to present any evidence to the contrary, we hold that the district court did not abuse its discretion when it denied [the defendant’s] motion for a continuance.” Id. at 435. The district court in Alix made the following findings:
I do not feel it’s in the best interest of justice to grant the motion to have that type of delay in this trial. Again, while you may conduct those studies, surveys, or whatever, I am not convinced that they would indicate or prove that any of the irregularities that you are concerned with have actually happened or taken place. I am not convinced that, at least from my knowledge of the racial makeup of the Victoria Division that the Jury would be any different if we struck this panel and summoned a new panel. I think that we have selected these potential jurors in manner that has been used throughout the Southern District. I am not aware of any irregularities involved in that process.
Id. at 435 n. 4. The district court in this case likewise made specific findings that Harper had failed to present any evidence that the jury was selected in a manner other than that which had been approved by the district court and the Fifth Circuit Judicial Council. And like the defendant in Alix, Harper has not identified any evidence that he might have been able to discover had the continuance been granted. Therefore, we hold that the district court did not abuse its discretion when it denied Harper’s motion for a continuance.
D. Adequacy of the Voir Dire
We review challenges to the scope of voir dire proceedings under an abuse of discretion standard. United States v. Munoz, 150 F.3d 401, 412 (5th Cir.1998). “The district court has broad discretion in determining how best to conduct voir dire *565and in deciding whether to excuse a juror,” and “[a] court abuses its discretion when the scope of voir dire is inadequate to discover bias and deprives the defendant of an opportunity to make reasonable use of peremptory challenges.” United States v. Greer, 968 F.2d 433, 435 (5th Cir.1992) (en banc) (per curiam) (citations omitted). Harper challenges the district court’s voir dire on two grounds. First, he argues that the district court abused its discretion by refusing his request to ask the venire-members general questions about their education and their children. Second, Harper contends that the district court allowed the prosecutor to mislead the jury during voir dire.
Harper submitted a proposed written voir dire questionnaire with several questions, including one that sought information regarding the veniremembers’ level of education, and one that sought information regarding the sex, age, and occupation of the veniremembers’ children. During a pretrial hearing, the district court voiced concern that the questions were “too personal” and “encouraged comparing jurors with each other.” The district court stated that it “didn’t want anybody to feel embarrassed who comes here for jury service.” The district court later entered an order denying Harper’s request to submit the questionnaire, noting that many of the questions in the questionnaire were customarily asked by the district court.
During voir dire, the district court permitted the parties to question individual members regarding personal matters, some of which involved the venire-members’ children. The district court began by asking the members of the venire a set of nine basic questions. Afterwards, the parties were allowed to pose questions to the group, with follow-up questions for individual members of the venire. The examination explored the venire for bias, and elicited a free and open exchange between the venire, the district court, and counsel. The district court and the parties asked the members of the venire whether they knew anyone who had prior involvement with drugs or who worked in law enforcement. The district court and the parties also asked the veniremembers whether they knew anyone associated with the case and whether their personal beliefs would interfere with their impartiality. Harper challenged three prospective jurors for cause, all of which the district court granted. Harper did not object to the jury that was empaneled.
Under these facts, the district court did not abuse its discretion by denying Harper the opportunity to submit his proposed questionnaire. A district court’s failure to ask a proposed question does not constitute an abuse of discretion if the overall voir dire examination and the instructions given at trial adequately protect a party’s interests. United States v. Harper, 527 F.3d 396, 409-10 (5th Cir.2008); United States v. Williams, 573 F.2d 284, 287 (5th Cir.1978). The proper test is whether the district court’s “inquiry reasonably assured that any bias or prejudice against [Harper] would have been discovered if present.” United States v. Quiroz-Hernandez, 48 F.3d 858, 869 (5th Cir.1995). Haying reviewed the record in this case, we are satisfied that this standard was met.
Harper next argues that the district court permitted the prosecutor to mislead the jury during voir dire. To the extent that Harper objected to the conduct of the voir dire, our review is for abuse of discretion. Munoz, 150 F.3d at 412. Alleged errors that were not preserved for review by a timely objection are reviewed for plain error. United States v. Fambro, 526 F.3d 836, 847 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008). Harper’s first objection came after *566the government described the crime of conspiracy as follows:
A conspiracy is an illegal agreement. It’s not violating the law, it’s an agreement to violate the law. It’s the defendant and one other person on one occasion entering into an agreement to break the law.... The defendant has to enter into it voluntarily, willfully, with the intent to further the agreement.
Harper objected to this characterization, arguing that there must be “an [overt] act in furtherance of [the conspiracy].” This argument is without merit; conspiracy under 21 U.S.C. § 846 requires no overt act. United States v. Shabani, 518 U.S. 10, 11, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (“This case asks us to consider whether 21 U.S.C. § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.”).
Harper’s second objection came when the prosecutor examined the members of the venire regarding testifying codefen-dants. Harper objected that the prosecutor’s inquiry was “getting into the internal operating procedures of the United States Attorney’s Office, committee meetings and things.” The district court sustained that objection and limited the government’s discussion of that topic. On appeal, Harper argues that this line of questioning also confused the venire to the point that the potential jurors were unable to understand that the government was referring to cooperating witnesses. This objection was never raised before the district court, however, and the district court did not commit plain error by allowing the inquiry after limiting its scope.
Other than these two objections, Harper presents only a running description of the proceedings without specific argument. By failing to adequately brief these issues, Harper has waived them. United States v. Skilling, 554 F.3d 529, 568 n. 63 (5th Cir.), cert. granted, - U.S. -, 130 S.Ct. 393, 175 L.Ed.2d 267 (2009).
E. Agent York’s Testimony
Harper argues that the district court improperly admitted audio tapes of conversations between himself and Savage based on the testimony of Agent York, who recorded them. Harper also argues that the district court erred in permitting Agent York to testify about his understanding of the contents of the conversations. We review a district court’s determination of the admissibility of evidence under a heightened abuse of discretion standard. United States v. Yanez Sosa, 513 F.3d 194, 199-200 (5th Cir.2008).
The admissibility of opinions by lay witnesses is governed by Federal Rule of Evidence 701, which provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
“Testimony by a witness that he recognized the accused by his voice is admissible, provided that the witness has some basis for comparison of the accused’s voice with the voice which he has identified as that of the accused.” United States v. Ladd, 527 F.2d 1341, 1343 (5th Cir.1976) (citation omitted); see also United States v. Lampton, 158 F.3d 251, 259 (5th Cir.1998) (holding that it was not an abuse of discretion for the district court to permit an FBI agent to identify the voice of the defendant based on prior personal contact with him). Once the basis for voice identi*567fication is established, it is up to the jury to decide whether the testimony is credible and how much weight to give it. United States v. Mendoza, 522 F.3d 482, 489 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 269, 172 L.Ed.2d 200 (2008).
Similarly, an agent may offer lay testimony of his opinions concerning the meaning of terms used by drug dealers if those opinions are based on his personal perceptions from the investigation. See United States v. Miranda, 248 F.3d 434, 441 (5th Cir.2001) (“[The agent’s] extensive participation in the investigation of this conspiracy ... allowed him to form opinions concerning the meaning of certain code words used in this drug ring based on his personal perceptions.”); see also United States v. Rollins, 544 F.3d 820, 831-32 (7th Cir.2008) (“We find that the trial judge did not err in concluding that [the agent’s] ‘impressions’ testimony was rationally based on his first-hand perception of the intercepted phone calls about which he testified as well as his personal, extensive experience with this particular drug investigation.”).
The district court did not abuse its discretion by admitting the tapes of Harper’s conversations with Savage through Agent York’s testimony. Agent York’s interview with Harper in Memphis provided him with a “basis for comparison of [Harper’s] voice with the voice ... he ... identified as that of [Harper].” Ladd, 527 F.2d at 1343 (citation omitted). Agent York’s impressions of the meanings of some of the terms in the recorded conversation were likewise properly admitted. Having served as the lead agent in the investigation, Agent York became familiar with the drug ring. He participated in the search at the apartment, interviewed Platas-Rod-riguez, helped to set up the sting operation, and was interviewing Savage when the conversations with Harper were recorded. This experience is sufficient to render his testimony admissible under Rule 701. See Miranda, 248 F.3d at 441.6
F. Prosecutor’s Closing Argument
Harper’s last argument focuses on allegedly improper comments made by the prosecutor during her closing argument. As Harper did not raise the issue of the prosecution’s closing argument before the district court, our review of that issue is for plain error only. United States v. Munoz, 150 F.3d 401, 415 (5th Cir.1998). We take a two-step approach in reviewing a charge of prosecutorial misconduct during closing argument. Id. at 414. We first decide whether the prosecutor made an improper remark. Id. (citation omitted). If a statement was improper, we then consider whether it prejudiced the defendant’s substantive rights. Id. at 415 (citation omitted). In making this determination, we assess “ ‘(1) the magnitude of the statement’s prejudice, (2) the effect of any cautionary instructions given, and (3) the strength of the evidence of the defendant’s guilt.’ ” Id. at 415 (quoting United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir.1995)).
Harper claims that the prosecutor improperly commented on his post-arrest silence during closing argument. It is the general rule that a prosecutor may not argue that a jury should infer a defendant’s guilt from his post-arrest silence. United States v. Rodriguez, 260 F.3d 416, 420-21 (5th Cir.2001) (citation omitted). In this instance, the prosecutor made the following statement regarding Harper’s interview with Agent York:
*568Again it’s important what Brian Harper doesn’t say at this point. “What do you mean? What load got knocked off? Why wouldn’t he work with me? What load got knocked off.” Never says that. Doesn’t say anything. He says, “Maybe. He might keep working with me.” An admission? Oh you bet. What you don’t say is just as important as what you do say.
In United States v. Laury, we found that the prosecution had improperly used the defendant’s post-arrest silence to impeach him. 985 F.2d 1293, 1303 (5th Cir.1993). In that case, the defendant had made statements to the FBI, but did not mention his whereabouts at the time of the alleged robbery. Id. We held that the prosecution impermissibly used the defendant’s statements on those unrelated issues to discredit his alibi. Id. We noted that although the defendant “did not remain completely silent following his arrest” the prosecutor did not have “unbridled freedom to impeach [him] by commenting on what he did not say following his arrest.” Id. at 1304 n. 10.
Harper also contends that the prosecutor improperly vouched for the credibility of certain trial witnesses. “[A] personal assertion by a prosecutor of a government witness’s credibility is impermissible.” United States v. Garcia, 522 F.3d 597, 601 (5th Cir.2008) (citation omitted). Harper points to seven statements made by the prosecution that he alleges improperly bolstered the credibility of certain witnesses for the government. The first two statements occurred while the prosecutor argued to the jury that Savage had been truthful. The prosecutor asked the jury to “imagine the fear and panic” experienced by Savage at the moment of his arrest and then infer that Savage was “going to the tell the truth.” The prosecutor then argued that it would be “quite a sophisticated lie on Frank Savage’s part” to falsely implicate Harper “within an hour of his very stressful arrest” and asserted that the jury should infer that Savage was “telling the truth.” The third statement was made while the prosecutor was explaining that Savage had honestly told the agents that a particular photograph did not depict Harper. The prosecutor observed: “Frank Savage, just like he has all along, told the truth and he said, ‘[n]o that is not [Harper].’ ” These statements give us some pause, as they could be read as “personal assertion[s]” of Savage’s credibility. Garcia, 522 F.3d at 601.
The fourth, fifth, and sixth statements make up a large part of the prosecution’s argument that the testimony of Platas-Rodriguez was consistent with Savage’s testimony and we do not recite them in their entirety. Having reviewed the entire exchange, however, we conclude that the prosecutor’s arguments highlighted the consistencies between Platas-Rodriguez’s and Savage’s testimony, and urged the jury to infer that both men were being truthful. “[A] prosecutor may recite to the jury those inferences and conclusions [she] wishes them to draw from the evidence so long as those inferences are grounded upon the evidence.” United States v. Loney, 959 F.2d 1332, 1343 (5th Cir.1992).
The seventh comment was made as part of the prosecution’s rebuttal argument. Harper’s counsel had previously argued to the jury that the government had been dilatory in interviewing Savage and playing the recorded conversations for him. The prosecution responded:
[i]n terms of when to interview the witnesses and when to investigate the case, if we talked to the witnesses five or six times, imagine what the flip-side of that argument would be.... The flip-side of the argument would be that we were over there coaching him. We weren’t. We asked them to tell us the truth, and that is what they told us.
*569We are somewhat troubled by the prosecutor’s use of the first-person pronoun. This statement arguably suggests that the prosecutor had additional knowledge that Savage was telling the truth based on her out-of-court interactions with him.
Even if we conclude that some of the prosecutor’s comments “fell beyond the bounds of permissible behavior,” they did not prejudice Harper’s substantive rights. Munoz, 150 F.3d at 415. The district court instructed the jury immediately before closing argument that “any statements, objections, or arguments made by the lawyers are not evidence.” This cautionary instruction mitigated any prejudicial effect of the prosecutor’s comments. See id. (citing United States v. Lokey, 945 F.2d 825, 837 (5th Cir.1991)). As Harper has failed to demonstrate prejudice to his substantial rights, he cannot obtain relief under the plain error standard. United States v. Pillado-Chaparro, 543 F.3d 202, 205 (5th Cir.2008).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. As Harper appeals the denial of his motion for a judgment of acquittal, we view " ‘the evidence and the inferences therefrom in the light most favorable to the verdict.’ " United States v. Fuchs, 467 F.3d 889, 904 (5th Cir.2006) (quoting United States v. Anderson, 174 F.3d 515, 522 (5th Cir.1999)).
. During oral argument, Harper's counsel argued that the government was on notice that Harper was not placing his intent at issue because his defense was “centered around identity.” While the opening statement of Harper's trial counsel did indeed focus primarily on the issue of identity, this falls far short of " ‘enforceable pre-trial assurances that he intend[ed] not to dispute criminal intent.' " McCall, 553 F.3d at 828 (alteration in original) (quoting United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980)).
. Harper attempts to characterize this issue as a violation of the prosecution’s obligation to disclose exculpatory information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, he did not raise a Brady claim in the district court, and we do not consider such claims when they are raised for the first time on appeal. United States v. Skilling, 554 F.3d 529, 568 n. 63 (5th Cir.), cert. granted, - U.S. -, 130 S.Ct. 393, 175 L.Ed.2d 267 (2009).
. In his opening brief, Harper claims that he was prejudiced by the late arrival of the government’s “Notice of Sentence Enhancement.” We do not address this claim, as Harper has dedicated little more than one sentence to it and makes no specific argument as to why the notice caused him prejudice. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir.1983) ("Claims not pressed on appeal are deemed abandoned.”) (citation omitted); cf. F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir.1994) (”[I]f a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court.”).
. The same failure also defeats Harper's parallel Equal Protection claim alluded to in the briefing of his Sixth Amendment claim. See United States v. McKinney, 53 F.3d 664, 671 (5th Cir.1995) (“The disparity between 2.28% eligible African-American population, and no African Americans on the venire panel does not raise the inference that racial discrimination rather than chance produced the result." (citing Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972))).
. Harper also argues that the district court permitted Agent York to render legal conclusions regarding two assets that were seized. Harper did not raise this objection at trial and Agent York’s testimony conveyed facts rather than legal conclusions. The district court did not plainly err in admitting this testimony. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478411/ | PER CURIAM: *
The attorney appointed to represent Osvaldo Ruiz-Ramirez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ruiz-Ramirez has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsi*588bilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Ctr. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478414/ | PER CURIAM: *
AFFIRMED. See Rule 47.6
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478416/ | ORDER
David Carey pleaded guilty to receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A), and the district court sentenced him to 151 months’ imprisonment, the low end of the guidelines range. Carey appeals, but his appointed lawyer moves to withdraw, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that there are not any meritorious issues to pursue. Carey did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We review only the potential issue counsel has identified in his facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
*726Carey told counsel that he does not want his guilty plea vacated, so counsel properly avoids any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential issue for appeal: whether Carey could challenge the reasonableness of his prison sentence. At sentencing Carey did not object to the probation officer’s calculation of a guidelines range of 151 to 188 months’ imprisonment. (This included a base offense level of 22, see U.S.S.G. § 2G2.2(a)(2), a 3-level reduction for acceptance of responsibility, id. § 3E1.1, and 14 additional levels because Carey received material involving a prepubescent minor and sadistic or masochistic conduct or other depictions of violence, he used a computer to receive the images and distributed them to others, and the offense involved at least 300, but less than -600, images. See id. § 2G2.2(b)(2), (b)(3)(F), (b)(4), (b)(6), (b)(7)(C).) Instead of challenging the calculation, Carey asserted that the range was entitled to little deference because the guideline that produced it, § 2G2.2, lacks empirical support and produces unjustly harsh sentences in child-pornography cases by piling on offense-level increases for characteristics that are present in almost every case. These arguments recently have gained momentum and have been cited by district courts imposing below-guidelines sentences in child-pornography cases. See United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.2009) (collecting cases).
The district judge evaluated Carey’s argument and even agreed that § 2G2.2 “is not the product of the customary research and recommendation by the Sentencing Commission.” That fact, the court explained, would be considered in fashioning a sentence. And Carey had been, the court observed, “a hard-working man” without a continuous history of criminal conduct who might be deterred from future crimes by a lifetime term of supervised release. On the other hand, the court was not satisfied with Carey’s explanation that child pornography is “not sexual” to him and that he views it, along with adult pornography, only because looking at the human body is “like looking at a beautiful picture or like looking at the sunset.” Ultimately, after weighing the factors in 18 U.S.C. § 3553(a), the court concluded that a sentence at the low end of the guidelines range was necessary to achieve the goals of sentencing. We would presume this within-guidelines sentence to be reasonable. See United States v. Mendoza, 576 F.3d 711, 723 (7th Cir.2009). Counsel has not identified any reason to disturb this presumption, and we therefore agree that any challenge to the reasonableness of Carey’s sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478418/ | ORDER
Kenneth Lee appeals from the denial of his motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 709 to the Sentencing Guidelines. We affirm.
Lee was convicted after a jury trial in 2003 of possessing more than five grams of cocaine base with intent to distribute, see 21 U.S.C. § 841(a)(1). Because he already had more than one prior conviction for a violent felony, the district court sentenced him as a career offender to 262 months’ imprisonment. We affirmed his conviction and sentence. United States v. Lee, 413 F.3d 622, 628 (7th Cir.2005); United States v. Lee, 170 Fed.Appx. 425, 426 (7th Cir.2006). He then moved unsuccessfully under § 3582(c)(2) to modify his sentence based on Amendment 706 to the Guidelines; we affirmed the denial of that motion. United States v. Lee, No. 08-2508 (7th Cir. Feb.2, 2009) (unpublished order).
In August 2009 Lee moved again under § 3582(c)(2) for a sentence reduction, this time based on Amendment 709 to the guidelines. That amendment, which took effect November 1, 2007, instructs district courts, when assessing a defendant’s criminal history, to treat as a single sentence all prior sentences that were imposed on the same day. See U.S.S.G. § 4A1.2(a)(2). Lee, who had been sentenced on the same day for three armed robberies committed weeks apart, asserted that Amendment 709 entitled him to a reduced sentence. The district court denied his motion be*728cause Amendment 709 is not retroactive and thus not grounds for a modification.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his guidelines range has subsequently been lowered by the Sentencing Commission and “such a reduction is consistent with applicable policy statements.” The applicable policy statement, U.S.S.G. § 1B1.10(a)(2)(A), permits a district court to modify a sentence only if one of the retroactive amendments enumerated in § IB 1.10(c) applies to the defendant. Amendment 709 is not one of those amendments, and so the district court had no authority to reduce Lee’s sentence. See United States v. Alexander, 553 F.3d 591, 593 (7th Cir.2009).
Lee recognizes that the Sentencing Commission did not make Amendment 709 retroactive, but argues under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the district court erred in its § 3582(c)(2) analysis by treating the policy statement as mandatory. He also points to United States v. Horn, 590 F.Supp.2d 976 (M.D.Tenn.2008), appeal docketed, No. 09-5090 (6th Cir. Jan. 29, 2009), in which a district court concluded that it had discretion to modify a sentence despite the policy statement and applied Amendment 709 retroactively. But Lee’s argument is foreclosed by United States v. Cunningham, 554 F.3d 703, 707-08 (7th Cir.2009), in which we held that policy statements in U.S.S.G. § 1B1.10 were consistent with Booker and Congress’s intent in § 3582(c)(2), and “should ... be viewed as part of the statute.”
Lee also argues that Amendment 709 applies retroactively because it is “clarifying,” as opposed to “substantive.” Under U.S.S.G. § lBl.ll(b)(2), a sentencing court must apply the guidelines manual in effect on a particular date in its entirety, as well as “subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” But Lee is wrong; Amendment 709 is substantive. See Alexander, 553 F.3d at 592 (“But Amendment 709 changed the guideline rather than merely clarifying it .... ”); see also United States v. Marler, 527 F.3d 874, 877 n. 1 (9th Cir.), cert. denied, - U.S. -, 129 S.Ct. 427, 172 L.Ed.2d 309 (2008); United States v. Wood, 526 F.3d 82, 87-88 (3d Cir.), cert. denied, — U.S. -, 129 S.Ct. 308, 172 L.Ed.2d 224 (2008).
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478422/ | ORDER
In this lawsuit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), inmate William Lacey claims that he was denied adequate medical care while confined at the United States Penitentiary in Marion, Illinois. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a claim.
For purposes here we accept as true the facts alleged by Lacey. See Ortiz v. Downey, 561 F.3d 664, 666 n. 2 (7th Cir.2009). Before Lacey entered Marion, he was in a car accident and also suffered a stroke, which together impaired the functioning of his left extremities. Lacey had been prescribed a motorized wheelchair, paid for by Medicaid, but he was not permitted to use it at Marion. Alternative accommodations for his disability were not provided, Lacey continues, and he repeatedly fell and injured himself while trying to walk. At the same time, Lacey adds, he was denied adult diapers to mitigate the effects of a bladder condition.
The district court construed Lacey’s complaint as raising a claim under the Eighth Amendment for deliberate indifference to serious medical needs. The court reasoned, however, that Lacey had not connected any named defendant to the denial of his wheelchair, and thus failed to state a claim concerning the prison’s response to his difficulty ambulating. And while the complaint does attribute the denial of adult diapers to one of the defendants, a prison doctor, the court reasoned that Lacey’s allegations establish a simple disagreement with the doctor about how best to respond to his bladder condition.
On appeal, instead of challenging the district court’s reasoning, Lacey redefines his legal theory and analogizes his case to a successful lawsuit filed against the Bureau of Prisons in Texas under the Federal Torts Claims Act. See Muhammed v. United States, 6 F.Supp.2d 582 (N.D.Tex.1998). But despite including the United States in the caption of his complaint, Lacey did not sue under the FTCA, and he has failed to articulate any other basis for disturbing the district court’s judgment. Accordingly, the judgment is affirmed. See Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478424/ | ORDER
Reginald J. Ballard pleaded guilty to a two-count indictment for bank robbery (“Count I”), 18 U.S.C. § 2113(a), (d), and knowing and intentional brandishment of a firearm during a crime of violence (“Count II”), 18 U.S.C. § 924(c), and the district court sentenced him to 130 months’ imprisonment. Ballard appeals, but his appointed lawyer moves to withdraw because she believes that his appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ballard has not responded to counsel’s motion, see CIR. R. 51(b), and so we limit our review to the potential arguments identified in counsel’s facially adequate brief, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009).
Ballard has not indicated that he "wishes to challenge his plea, and so counsel properly refrains from considering the adequacy of Ballard’s plea colloquy or the volun-tariness of his plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential argument — whether Ballard could challenge his sentence. We agree with counsel that any such challenge would be frivolous. At sentencing, the district court properly calculated the advisory guidelines range of 57 to 71 months for Count I (based on a total offense level of 19 and a criminal history category of A0 and a seven-year mandatory minimum for Count II. Based on the gov*732ernment’s request for a sentence reduction for Ballard’s substantial assistance, see 18 U.S.C. § 8553(e), the district court imposed a below-guidelines sentence of 46 months for Count I and a consecutive seven-year sentence for Count II. The below-guidelines sentence the court chose is presumptively reasonable, see United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008), and counsel suggests nothing to rebut that presumption. Moreover, the district court adequately examined the factors under 18 U.S.C. § 3553(a), considering, among other things, Ballard’s struggles with heroin addiction, his history of petty crimes, the seriousness of his crime that put “many, many people in distress,” and the need to protect the community from further crimes by Ballard.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478415/ | PER CURIAM: *
AFFIRMED. See Rule 47.6
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478417/ | ORDER
David Carey pleaded guilty to receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A), and the district court sentenced him to 151 months’ imprisonment, the low end of the guidelines range. Carey appeals, but his appointed lawyer moves to withdraw, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he concludes that there are not any meritorious issues to pursue. Carey did not respond to our invitation to comment on counsel’s motion. See Cir. R. 51(b). We review only the potential issue counsel has identified in his facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002).
*726Carey told counsel that he does not want his guilty plea vacated, so counsel properly avoids any discussion of the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential issue for appeal: whether Carey could challenge the reasonableness of his prison sentence. At sentencing Carey did not object to the probation officer’s calculation of a guidelines range of 151 to 188 months’ imprisonment. (This included a base offense level of 22, see U.S.S.G. § 2G2.2(a)(2), a 3-level reduction for acceptance of responsibility, id. § 3E1.1, and 14 additional levels because Carey received material involving a prepubescent minor and sadistic or masochistic conduct or other depictions of violence, he used a computer to receive the images and distributed them to others, and the offense involved at least 300, but less than -600, images. See id. § 2G2.2(b)(2), (b)(3)(F), (b)(4), (b)(6), (b)(7)(C).) Instead of challenging the calculation, Carey asserted that the range was entitled to little deference because the guideline that produced it, § 2G2.2, lacks empirical support and produces unjustly harsh sentences in child-pornography cases by piling on offense-level increases for characteristics that are present in almost every case. These arguments recently have gained momentum and have been cited by district courts imposing below-guidelines sentences in child-pornography cases. See United States v. Huffstatler, 571 F.3d 620, 622-23 (7th Cir.2009) (collecting cases).
The district judge evaluated Carey’s argument and even agreed that § 2G2.2 “is not the product of the customary research and recommendation by the Sentencing Commission.” That fact, the court explained, would be considered in fashioning a sentence. And Carey had been, the court observed, “a hard-working man” without a continuous history of criminal conduct who might be deterred from future crimes by a lifetime term of supervised release. On the other hand, the court was not satisfied with Carey’s explanation that child pornography is “not sexual” to him and that he views it, along with adult pornography, only because looking at the human body is “like looking at a beautiful picture or like looking at the sunset.” Ultimately, after weighing the factors in 18 U.S.C. § 3553(a), the court concluded that a sentence at the low end of the guidelines range was necessary to achieve the goals of sentencing. We would presume this within-guidelines sentence to be reasonable. See United States v. Mendoza, 576 F.3d 711, 723 (7th Cir.2009). Counsel has not identified any reason to disturb this presumption, and we therefore agree that any challenge to the reasonableness of Carey’s sentence would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478419/ | ORDER
Kenneth Lee appeals from the denial of his motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on Amendment 709 to the Sentencing Guidelines. We affirm.
Lee was convicted after a jury trial in 2003 of possessing more than five grams of cocaine base with intent to distribute, see 21 U.S.C. § 841(a)(1). Because he already had more than one prior conviction for a violent felony, the district court sentenced him as a career offender to 262 months’ imprisonment. We affirmed his conviction and sentence. United States v. Lee, 413 F.3d 622, 628 (7th Cir.2005); United States v. Lee, 170 Fed.Appx. 425, 426 (7th Cir.2006). He then moved unsuccessfully under § 3582(c)(2) to modify his sentence based on Amendment 706 to the Guidelines; we affirmed the denial of that motion. United States v. Lee, No. 08-2508 (7th Cir. Feb.2, 2009) (unpublished order).
In August 2009 Lee moved again under § 3582(c)(2) for a sentence reduction, this time based on Amendment 709 to the guidelines. That amendment, which took effect November 1, 2007, instructs district courts, when assessing a defendant’s criminal history, to treat as a single sentence all prior sentences that were imposed on the same day. See U.S.S.G. § 4A1.2(a)(2). Lee, who had been sentenced on the same day for three armed robberies committed weeks apart, asserted that Amendment 709 entitled him to a reduced sentence. The district court denied his motion be*728cause Amendment 709 is not retroactive and thus not grounds for a modification.
Section 3582(c)(2) permits a district court to reduce a defendant’s sentence if his guidelines range has subsequently been lowered by the Sentencing Commission and “such a reduction is consistent with applicable policy statements.” The applicable policy statement, U.S.S.G. § 1B1.10(a)(2)(A), permits a district court to modify a sentence only if one of the retroactive amendments enumerated in § IB 1.10(c) applies to the defendant. Amendment 709 is not one of those amendments, and so the district court had no authority to reduce Lee’s sentence. See United States v. Alexander, 553 F.3d 591, 593 (7th Cir.2009).
Lee recognizes that the Sentencing Commission did not make Amendment 709 retroactive, but argues under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the district court erred in its § 3582(c)(2) analysis by treating the policy statement as mandatory. He also points to United States v. Horn, 590 F.Supp.2d 976 (M.D.Tenn.2008), appeal docketed, No. 09-5090 (6th Cir. Jan. 29, 2009), in which a district court concluded that it had discretion to modify a sentence despite the policy statement and applied Amendment 709 retroactively. But Lee’s argument is foreclosed by United States v. Cunningham, 554 F.3d 703, 707-08 (7th Cir.2009), in which we held that policy statements in U.S.S.G. § 1B1.10 were consistent with Booker and Congress’s intent in § 3582(c)(2), and “should ... be viewed as part of the statute.”
Lee also argues that Amendment 709 applies retroactively because it is “clarifying,” as opposed to “substantive.” Under U.S.S.G. § lBl.ll(b)(2), a sentencing court must apply the guidelines manual in effect on a particular date in its entirety, as well as “subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” But Lee is wrong; Amendment 709 is substantive. See Alexander, 553 F.3d at 592 (“But Amendment 709 changed the guideline rather than merely clarifying it .... ”); see also United States v. Marler, 527 F.3d 874, 877 n. 1 (9th Cir.), cert. denied, - U.S. -, 129 S.Ct. 427, 172 L.Ed.2d 309 (2008); United States v. Wood, 526 F.3d 82, 87-88 (3d Cir.), cert. denied, — U.S. -, 129 S.Ct. 308, 172 L.Ed.2d 224 (2008).
Accordingly, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478423/ | ORDER
In this lawsuit under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), inmate William Lacey claims that he was denied adequate medical care while confined at the United States Penitentiary in Marion, Illinois. The district court screened the complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a claim.
For purposes here we accept as true the facts alleged by Lacey. See Ortiz v. Downey, 561 F.3d 664, 666 n. 2 (7th Cir.2009). Before Lacey entered Marion, he was in a car accident and also suffered a stroke, which together impaired the functioning of his left extremities. Lacey had been prescribed a motorized wheelchair, paid for by Medicaid, but he was not permitted to use it at Marion. Alternative accommodations for his disability were not provided, Lacey continues, and he repeatedly fell and injured himself while trying to walk. At the same time, Lacey adds, he was denied adult diapers to mitigate the effects of a bladder condition.
The district court construed Lacey’s complaint as raising a claim under the Eighth Amendment for deliberate indifference to serious medical needs. The court reasoned, however, that Lacey had not connected any named defendant to the denial of his wheelchair, and thus failed to state a claim concerning the prison’s response to his difficulty ambulating. And while the complaint does attribute the denial of adult diapers to one of the defendants, a prison doctor, the court reasoned that Lacey’s allegations establish a simple disagreement with the doctor about how best to respond to his bladder condition.
On appeal, instead of challenging the district court’s reasoning, Lacey redefines his legal theory and analogizes his case to a successful lawsuit filed against the Bureau of Prisons in Texas under the Federal Torts Claims Act. See Muhammed v. United States, 6 F.Supp.2d 582 (N.D.Tex.1998). But despite including the United States in the caption of his complaint, Lacey did not sue under the FTCA, and he has failed to articulate any other basis for disturbing the district court’s judgment. Accordingly, the judgment is affirmed. See Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir.2008); Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478425/ | ORDER
Reginald J. Ballard pleaded guilty to a two-count indictment for bank robbery (“Count I”), 18 U.S.C. § 2113(a), (d), and knowing and intentional brandishment of a firearm during a crime of violence (“Count II”), 18 U.S.C. § 924(c), and the district court sentenced him to 130 months’ imprisonment. Ballard appeals, but his appointed lawyer moves to withdraw because she believes that his appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ballard has not responded to counsel’s motion, see CIR. R. 51(b), and so we limit our review to the potential arguments identified in counsel’s facially adequate brief, see United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009).
Ballard has not indicated that he "wishes to challenge his plea, and so counsel properly refrains from considering the adequacy of Ballard’s plea colloquy or the volun-tariness of his plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002).
Counsel considers only one potential argument — whether Ballard could challenge his sentence. We agree with counsel that any such challenge would be frivolous. At sentencing, the district court properly calculated the advisory guidelines range of 57 to 71 months for Count I (based on a total offense level of 19 and a criminal history category of A0 and a seven-year mandatory minimum for Count II. Based on the gov*732ernment’s request for a sentence reduction for Ballard’s substantial assistance, see 18 U.S.C. § 8553(e), the district court imposed a below-guidelines sentence of 46 months for Count I and a consecutive seven-year sentence for Count II. The below-guidelines sentence the court chose is presumptively reasonable, see United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008), and counsel suggests nothing to rebut that presumption. Moreover, the district court adequately examined the factors under 18 U.S.C. § 3553(a), considering, among other things, Ballard’s struggles with heroin addiction, his history of petty crimes, the seriousness of his crime that put “many, many people in distress,” and the need to protect the community from further crimes by Ballard.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478460/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. RApp. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478462/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance "with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478428/ | ORDER
A jury found Richard Cooks guilty of conspiring to possess with intent to distribute crack cocaine and cocaine powder. See 21 U.S.C. §§ 846, 841(a)(1). After finding that Cooks was responsible for 4.5 kilograms of crack and 27 kilograms of co*739caine, the district court calculated a guidelines imprisonment range of 30 years to life, but imposed a below-range term of 25 years. Cooks directed trial counsel to file a notice of appeal, but his appointed appellate lawyer sought to withdraw because he could not discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Without passing on the issues identified by counsel in his facially adequate brief or Cooks in his response under Cm. R. 51(b), we denied counsel’s motion to withdraw. United States v. Cooks, No. 07-1663 (7th Cir. Oct. 10, 2008). Cooks was sentenced before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and neither Cooks nor the district judge referenced the differential in base offense levels for crimes involving like amounts of crack and powder. Thus, we reasoned, it would not be frivolous for him to seek a limited remand to determine whether the district court would have sentenced him differently had it known of its discretion to differ with the crack-to-powder ratio embodied in the sentencing guidelines. See United States v. Taylor, 520 F.3d 746 (7th Cir.2008).
Cooks and the government filed a joint motion for a limited remand, which we granted, and the district court entered an order stating that it was not inclined to use its discretion to resentence Cooks. The government and counsel have since filed statements of position; counsel’s submission renews his motion to withdraw. Because the district court’s decision on the limited remand eliminates any nonfrivolous argument based on Kimbrough, we now review the issues initially identified by counsel and Cooks.
Counsel first considers whether Cooks could challenge the sufficiency of the evidence underlying his conviction. This court would overturn the conviction only if it concluded, after viewing the evidence in the light most favorable to the government, that no rational jury could have found the elements of the conspiracy offense beyond a reasonable doubt. See Jackson v. Va., 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Bustamante, 493 F.3d 879, 884 (7th Cir.2007).
The evidence overwhelmingly supports Cooks’s conviction. To prove a drug conspiracy, the government must show that there was an understanding between the co-conspirators to work together to distribute drugs. See Bustamante, 493 F.3d at 884. Prolonged cooperation and mutual trust between the parties, including sales on credit, and large quantities of drugs are among the factors that indicate a conspiracy. Id. at 884-85. The prosecution’s evidence included recorded phone calls between Cooks and his co-conspirators in which they discussed how much cocaine them customers needed and arranged to deliver it. The government also elicited detailed testimony from one of Cooks’s co-conspirators, Melvin Gordon. Gordon testified that, among other things, he supplied crack cocaine to Cooks and co-conspirators on credit, cooked crack with Cooks 50 or 60 times, and advised Cooks on customer recruitment and avoiding law enforcement. The agent who arrested Cooks also testified that Cooks confessed that the conspirators stored drugs and large amounts of cash in his apartment, which they called “the lab” due to the many times that they cooked crack there. This evidence was more than sufficient for a rational jury to find that Cooks had an agreement with his co-conspirators to distribute drugs.
Counsel next contemplates whether Cooks could argue that the district court (which adopted the probation officer’s recommendations over Cooks’s objection) incorrectly found him responsible for over *7404.5 kilograms of crack cocaine, yielding a base offense level of 38. This court would review the district court’s findings as to drug quantity for clear error. United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007). Because there was extensive evidence that Cooks personally and repeatedly assisted Gordon in obtaining, processing, and distributing varying amounts of crack and cocaine powder, the court’s determination of quantity was not clear error. A contrary position would be frivolous.
Counsel lastly considers challenging the reasonableness of Cooks’s below-guidelines prison sentence but concludes that any such argument would be frivolous. This court has “never deemed a below-range sentence to be unreasonably high,” United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and counsel identifies no reason why Cooks’s sentence should be any different.
Cooks, in his Rule 51(b) response, proposes to argue that cocaine base in its crack form does not have an accepted medical use in treatment and does not meet the definition of a Schedule II narcotic. See 21 U.S.C. § 812(b)(2)(B). Cooks suggests that the government therefore has no authority to treat crack as a controlled substance. Cooks may be correct that there is no currently accepted medical use for crack cocaine, but cocaine base is a controlled substance. See 21 C.F.R. § 1308.12(b)(4); United States v. Manzueta, 167 F.3d 92, 93 (1st Cir.1999) (“Whether as a base or a salt, cocaine is covered by the statute.... The circuit case law is uniform in holding that cocaine base falls within the statutory definition of cocaine.”).
Cooks next suggests that the government constructively amended the indictment in violation of the Fifth Amendment by proving far more than the 50 grams of crack alleged in the indictment. See United States v. Haskins, 511 F.3d 688, 692 (7th Cir.2007). A constructive amendment occurs only where the jury is permitted to convict for an offense different from those specified in the indictment. See United States v. Mitov, 460 F.3d 901, 906 (7th Cir.2006). Because drug quantity is a sentencing factor, and not an element under § 846 or § 841(a)(1), see Edwards v. United States, 523 U.S. 511, 513-514, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998); United States v. Abdulahi, 523 F.3d 757, 760 (7th Cir.2008), the government could not have constructively amended the indictment by proving that Cooks was responsible for a greater drug quantity. Moreover, the indictment alleges that Cooks conspired to possess with intent to distribute 50 “or more” grams of crack, and more is precisely what the government proved.
Third, Cooks seeks to argue, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that his 25-year sentence exceeds the statutory maximum for his crime. Cooks mistakenly believes that but for the court’s determination of drug quantity he would have faced a maximum sentence of 20 years imprisonment under § 841(b)(1)(C), and so Apprendi, 530 U.S. at 490,120 S.Ct. 2348, required the government to prove drug quantity to the jury beyond a reasonable doubt. In fact § 841(b)(1)(C) authorizes a maximum sentence of 30 years for any person who, after a conviction for a drug felony, conspires to possess any quantity of crack with intent to distribute. See United States v. Henry, 408 F.3d 930, 934 (7th Cir.2005). The only predicate is that the government must file notice of its intention to seek enhanced penalties under 21 U.S.C. § 851, which it did in this case. That would be enough to render Apprendi irrelevant in this case. In any event, the government did allege and the jury did find beyond a reasonable doubt that *741Cooks’s conspiracy involved a quantity of crack sufficient to trigger a potential life sentence. See 21 U.S.C. § 841 (b)(1)(A)(iii); United States v. Seymour, 519 F.3d 700, 710 (7th Cir.2008). Thus, an Apprendi argument would be especially frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478434/ | ORDER
Jaleel Abdul Lafi III pleaded guilty to four counts of distributing crack cocaine, 21 U.S.C. § 841(a)(1), one of which, he admitted, involved at least 50 grams of crack. Lafi also pleaded guilty to one count of carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). The district court sentenced Lafi to a total of 10 years’ imprisonment for distributing the drugs, the minimum allowed given the quantity of crack, see 21 U.S.C. § 841(b)(l)(A)(iii), and a consecutive 5 years for the gun offense, the statutory minimum, see 18 U.S.C. § 924(c)(l)(A)(i). Lafi filed a notice of appeal, but his appointed lawyers have concluded that the appeal is frivolous and move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel have filed a facially adequate supporting brief, and Lafi submitted a response under Circuit Rule 51(b).
Lafi has told counsel that he does not wish to challenge his guilty pleas, so counsel properly omit a discussion of the volun-tariness of the pleas or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel instead focus on whether Lafi could raise a nonfrivolous sentencing issue but concede that both the total imprisonment and supervised release are at the statutory mínimums and could not lawfully have been shorter. See 21 U.S.C. § 841(b)(l)(A)(iii);18 U.S.C. § 924(c)(1)(A)(i). With the exception of two circumstances that are not relevant here, see 18 U.S.C. § 3553(e) — (f), a district court may not sentence a defendant below a statutory minimum. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009).
Finally, Lafi argues in his Rule 51(b) response that at sentencing the district court should have considered the differing offense levels for crimes involving like amounts of crack and powder cocaine. But this argument fails for the same reason: the district court was constrained by statute from sentencing Lafi below the mandatory minimums. See Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Roberson, 474 F.3d 432, 436 (7th Cir.2007).
*750Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478436/ | PER CURIAM.
North Dakota inmate Charles Bradford Odom appeals the district court’s1 preser-*768vice dismissal of his 42 U.S.C. § 1983 suit. Following de novo review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (28 U.S.C. § 1915A dismissal is reviewed de novo), we have found no basis for reversal. Accordingly, we affirm the district court’s judgment. See 8th Cir. R. 47B.
grant of summary judgment in favor of the trustee of Grimlie’s bankruptcy estate. After careful review, see In re Vote, 276 F.3d 1024, 1026 (8th Cir.2002) (review standards), we affirm for the reasons stated by the BAP, see 8th Cir. R. 47B.
. The Honorable Daniel L. Hovland, United States District Judge for the District of North *768Dakota, adopting the report and recommendation of the Honorable Charles S. Miller, Jr., United States Magistrate Judge for the District of North Dakota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478440/ | MEMORANDUM **
Markay Lewis appeals from his guilty-plea conviction and 105-month sentence for being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), and distribution of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(iii). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Lewis’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478461/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance "with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478427/ | ORDER
The following is before the court: RESPONSE TO RULE TO SHOW CAUSE, filed on March 18, 2010, by attorney Armand L. Andry.
This civil appeal was docketed on June 22, 2009. The opening brief was due on August 21, 2009.
Several extensions of time were granted to allow settlement negotiations. When these came to naught, the court set a deadline of December 21, 2009. The court granted a motion to extend that time to January 25, 2010. One day before the briefs due date, counsel sought a further extension of time, which was granted. The order of January 26, 2010, set a final deadline of February 26, 2010, and provided that no further time would be allowed except under extraordinary circumstances. It also reminded counsel that any request for additional time must be filed at least seven days before the date the brief is due.
On February 25, 2010, just one day before the brief was due, counsel filed a motion for still more time. This motion did not narrate any exceptional circumstances. Instead it noted that counsel was busy (as most lawyers are) and has chronic health problems. The motion was functionally identical to the previous motion that led to the final, non-extendable due date of February 26. This motion was denied and counsel ordered to show cause why the appeal should not be dismissed for want of prosecution.
*733Almost a month has passed, and counsel still has not tendered a brief for appellants. The response to the order to show cause again notes general busyness and chronic health issues, which counsel says began in 2006. Lawyers must take no more work than they can handle; it appears that Armand Andry, counsel for appellant, has disregarded this ethical rule. This is only one of several pending cases in which Andry has disregarded appellate deadlines, despite receiving many months of extensions. (This appeal, for example, is now more than nine months old.) The court cannot allow this practice to continue.
Counsel’s name will be placed on a list, maintained by the court, of lawyers who have failed to meet a non-extendable deadline. No further filings instcmter will be allowed in any of Andry’s appeals. Any further failure to file a brief by its due date will lead to counsel’s immediate suspension from practice pending disciplinary proceedings, and to the dismissal of that appeal, for want of prosecution, without further warning.
Counsel must plan his practice so that future appellate briefs can be filed within the time provided by the Federal Rules of Appellate Procedure. This does not mean that extensions of time are unavailable. But, except for circumstances beyond counsel’s control (such as unavailability of the record), extensions of time will be limited to a total of 60 days past the original due date.
IT IS ORDERED that this appeal is DISMISSED for want of prosecution. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478429/ | ORDER
A jury found Richard Cooks guilty of conspiring to possess with intent to distribute crack cocaine and cocaine powder. See 21 U.S.C. §§ 846, 841(a)(1). After finding that Cooks was responsible for 4.5 kilograms of crack and 27 kilograms of co*739caine, the district court calculated a guidelines imprisonment range of 30 years to life, but imposed a below-range term of 25 years. Cooks directed trial counsel to file a notice of appeal, but his appointed appellate lawyer sought to withdraw because he could not discern a nonfrivolous basis for the appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Without passing on the issues identified by counsel in his facially adequate brief or Cooks in his response under Cm. R. 51(b), we denied counsel’s motion to withdraw. United States v. Cooks, No. 07-1663 (7th Cir. Oct. 10, 2008). Cooks was sentenced before the Supreme Court decided Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and neither Cooks nor the district judge referenced the differential in base offense levels for crimes involving like amounts of crack and powder. Thus, we reasoned, it would not be frivolous for him to seek a limited remand to determine whether the district court would have sentenced him differently had it known of its discretion to differ with the crack-to-powder ratio embodied in the sentencing guidelines. See United States v. Taylor, 520 F.3d 746 (7th Cir.2008).
Cooks and the government filed a joint motion for a limited remand, which we granted, and the district court entered an order stating that it was not inclined to use its discretion to resentence Cooks. The government and counsel have since filed statements of position; counsel’s submission renews his motion to withdraw. Because the district court’s decision on the limited remand eliminates any nonfrivolous argument based on Kimbrough, we now review the issues initially identified by counsel and Cooks.
Counsel first considers whether Cooks could challenge the sufficiency of the evidence underlying his conviction. This court would overturn the conviction only if it concluded, after viewing the evidence in the light most favorable to the government, that no rational jury could have found the elements of the conspiracy offense beyond a reasonable doubt. See Jackson v. Va., 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Bustamante, 493 F.3d 879, 884 (7th Cir.2007).
The evidence overwhelmingly supports Cooks’s conviction. To prove a drug conspiracy, the government must show that there was an understanding between the co-conspirators to work together to distribute drugs. See Bustamante, 493 F.3d at 884. Prolonged cooperation and mutual trust between the parties, including sales on credit, and large quantities of drugs are among the factors that indicate a conspiracy. Id. at 884-85. The prosecution’s evidence included recorded phone calls between Cooks and his co-conspirators in which they discussed how much cocaine them customers needed and arranged to deliver it. The government also elicited detailed testimony from one of Cooks’s co-conspirators, Melvin Gordon. Gordon testified that, among other things, he supplied crack cocaine to Cooks and co-conspirators on credit, cooked crack with Cooks 50 or 60 times, and advised Cooks on customer recruitment and avoiding law enforcement. The agent who arrested Cooks also testified that Cooks confessed that the conspirators stored drugs and large amounts of cash in his apartment, which they called “the lab” due to the many times that they cooked crack there. This evidence was more than sufficient for a rational jury to find that Cooks had an agreement with his co-conspirators to distribute drugs.
Counsel next contemplates whether Cooks could argue that the district court (which adopted the probation officer’s recommendations over Cooks’s objection) incorrectly found him responsible for over *7404.5 kilograms of crack cocaine, yielding a base offense level of 38. This court would review the district court’s findings as to drug quantity for clear error. United States v. Wilson, 481 F.3d 475, 483 (7th Cir.2007). Because there was extensive evidence that Cooks personally and repeatedly assisted Gordon in obtaining, processing, and distributing varying amounts of crack and cocaine powder, the court’s determination of quantity was not clear error. A contrary position would be frivolous.
Counsel lastly considers challenging the reasonableness of Cooks’s below-guidelines prison sentence but concludes that any such argument would be frivolous. This court has “never deemed a below-range sentence to be unreasonably high,” United States v. Wallace, 531 F.3d 504, 507 (7th Cir.2008), and counsel identifies no reason why Cooks’s sentence should be any different.
Cooks, in his Rule 51(b) response, proposes to argue that cocaine base in its crack form does not have an accepted medical use in treatment and does not meet the definition of a Schedule II narcotic. See 21 U.S.C. § 812(b)(2)(B). Cooks suggests that the government therefore has no authority to treat crack as a controlled substance. Cooks may be correct that there is no currently accepted medical use for crack cocaine, but cocaine base is a controlled substance. See 21 C.F.R. § 1308.12(b)(4); United States v. Manzueta, 167 F.3d 92, 93 (1st Cir.1999) (“Whether as a base or a salt, cocaine is covered by the statute.... The circuit case law is uniform in holding that cocaine base falls within the statutory definition of cocaine.”).
Cooks next suggests that the government constructively amended the indictment in violation of the Fifth Amendment by proving far more than the 50 grams of crack alleged in the indictment. See United States v. Haskins, 511 F.3d 688, 692 (7th Cir.2007). A constructive amendment occurs only where the jury is permitted to convict for an offense different from those specified in the indictment. See United States v. Mitov, 460 F.3d 901, 906 (7th Cir.2006). Because drug quantity is a sentencing factor, and not an element under § 846 or § 841(a)(1), see Edwards v. United States, 523 U.S. 511, 513-514, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998); United States v. Abdulahi, 523 F.3d 757, 760 (7th Cir.2008), the government could not have constructively amended the indictment by proving that Cooks was responsible for a greater drug quantity. Moreover, the indictment alleges that Cooks conspired to possess with intent to distribute 50 “or more” grams of crack, and more is precisely what the government proved.
Third, Cooks seeks to argue, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that his 25-year sentence exceeds the statutory maximum for his crime. Cooks mistakenly believes that but for the court’s determination of drug quantity he would have faced a maximum sentence of 20 years imprisonment under § 841(b)(1)(C), and so Apprendi, 530 U.S. at 490,120 S.Ct. 2348, required the government to prove drug quantity to the jury beyond a reasonable doubt. In fact § 841(b)(1)(C) authorizes a maximum sentence of 30 years for any person who, after a conviction for a drug felony, conspires to possess any quantity of crack with intent to distribute. See United States v. Henry, 408 F.3d 930, 934 (7th Cir.2005). The only predicate is that the government must file notice of its intention to seek enhanced penalties under 21 U.S.C. § 851, which it did in this case. That would be enough to render Apprendi irrelevant in this case. In any event, the government did allege and the jury did find beyond a reasonable doubt that *741Cooks’s conspiracy involved a quantity of crack sufficient to trigger a potential life sentence. See 21 U.S.C. § 841 (b)(1)(A)(iii); United States v. Seymour, 519 F.3d 700, 710 (7th Cir.2008). Thus, an Apprendi argument would be especially frivolous.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478431/ | ORDER
Pro se plaintiffs April Griffin, her sister, and ostensibly their minor children, claim in this civil-rights action that the State of Wisconsin, the City of Milwaukee, and a multitude of individual defendants interfered with Griffin’s custody of her infant son. The district court first notified the plaintiffs that their complaint does not comply with Federal Rule of Civil Procedure 8(a), and when they ignored two deadlines to amend it, the court dismissed the action with prejudice. The plaintiffs appeal.
Like the district court, we have struggled to understand the plaintiffs’ 70-page complaint. From the text we glean that April Griffin has a son with one of the defendants, who was awarded custody by a state judge when Griffin commenced a paternity action. But she refused to disclose the child’s location and was held in civil contempt, and her sister was arrested after the father accused her of hiding the child. Griffin eventually was released from the civil contempt, but police officers then raided the apartment where she was living, found the boy and took custody, and arrested Griffin for interference with child custody. She was in jail when this suit was filed.
The plaintiffs already had filed an amended complaint before the district judge got his first look at the lawsuit. The court screened the amended complaint and characterized it as rambling and confusing with “a whole mess of unconnected legal conclusions sprinkled with occasional facts.” This prolixity, the court explained, made it “nearly impossible to determine exactly what each defendant is alleged to have done to violate plaintiffs’ rights and therefore to analyze whether there is any potential basis for liability for each defendant.” The court dismissed the complaint but gave the plaintiffs leave to amend and instructed them to number the paragraphs and limit each to a “single set of circumstances.” The plaintiffs were also told to “clearly set forth what each defendant is alleged to have done” and to refrain from including “lengthy legal descriptions and conclusions.” The plaintiffs ignored this directive and instead sought reconsideration and asked the judge to recuse himself. The court declined to do either and extended the deadline for the plaintiffs to file a second amended complaint. They in *743turn filed an “objection” to the order and repeated their demand for recusal. After the second deadline had passed without a revised complaint, the court dismissed the case with prejudice under Rule 8(a).
On appeal the Griffin sisters1 argue that the district court should not have ordered them to amend their complaint because the defendants could have moved for a more definite statement. See Fed. R.CivP. 12(e). But we have explained that often it is simpler to dismiss an unintelligible complaint with leave to file a new one so that a plaintiff’s allegations are contained in only one document rather than two: the complaint and the more definite statement. Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir.2001). That is the case here. Where the operative complaint cannot stand on its own— itself a confusing morass of legal theory and limited factual assertions — an addendum would only complicate matters.
In addition, the plaintiffs contend that the district court did not have authority to screen their complaint because they had paid the filing fee. But district courts are permitted to screen every complaint, regardless of a plaintiffs fee status. 28 U.S.C. § 1915(e)(2)(B); Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.2003); Rowe v. Shake, 196 F.3d 778, 783 (7th Cir.1999).
Finally, the plaintiffs insist that it was error to dismiss their suit under Rule 8 because, in their view, the complaint “spell[s] out in detail how each defendant participated” in violating their rights. We review a dismissal under Rule 8 for abuse of discretion. See Frederiksen v. City of Lockport, 384 F.3d 437, 438-39 (7th Cir.2004); Davis, 269 F.3d at 820. A district court normally cannot dismiss a complaint merely because it is repetitious or includes irrelevant material. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir.2003). But “[ljength may make a complaint unintelligible, by scattering and concealing in a morass of irrelevancies the few allegations that matter.” Id. A court is free to dismiss a complaint with prejudice when the plaintiffs have been given opportunities to amend, but fail to do so. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 666 (7th Cir.2007); Frederiksen, 384 F.3d at 439.
Here, the plaintiffs’ lengthy and disjointed complaint made it impossible for the district court to identify the specific allegations against each defendant and therefore impossible to determine whether there are potential claims against any of them. We agree with the district court that the complaint does not comply with Rule 8. The complaint includes some factual allegations, but they are not easily retrieved or assimilated; only after 18 pages of mostly broad legal assertions does the complaint mention the custody battle that seems to be at the heart of the suit. And even then it is unclear how each defendant is supposed to have participated; some defendants listed in the caption are not even mentioned in the body of the complaint. The complaint is unintelligible, and it was not an abuse of discretion for the district court to dismiss the ease with prejudice after the plaintiffs failed to cure the deficiencies.
The plaintiffs include several additional arguments in their brief, including a contention that the district judge should have recused himself. We have reviewed these *744additional arguments and conclude that none has merit.
AFFIRMED.
. The Griffin sisters were not authorized to file the complaint or pursue this appeal on the children’s behalf without counsel. See Elustra ex rel. Elustra v. Mineo, 595 F.3d 699, 704-05 (7th Cir.2010); Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149 (7th Cir.2001) (per curiam). Accordingly, the minor children were not part of the underlying action and are not parties to this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478433/ | ORDER
Marcial Ramirez-Silva pleaded guilty to being in the United States without permission after a prior removal, 8 U.S.C. § 1326(a). The district court sentenced him to 46 months in prison, the bottom of the guidelines range. He argues on appeal that the court failed to address his proposed bases for an even lower sentence. We affirm.
In March 2009, a deputy sheriff in Effingham County, Illinois, pulled over Ramirez-Silva in a routine traffic stop. Ramirez-Silva provided a Mexican identification card with the name “Alvaro Torres-Valencia,” one of his several aliases. He admitted being in the country illegally, as did his two passengers. Ramirez-Silva was arrested and turned over to immigration authorities, who discovered his true identity.
Federal authorities also learned that he had been convicted in the Southern District of New York in 2007 of conspiracy to transport illegal aliens from Arizona to New York. He was sentenced to a term of 12 months and one day in prison and 3 years’ supervised release. He completed his prison sentence in October 2007 and was removed to Mexico in January 2008. He was still on supervised release at the time of his arrest in this case.
The probation officer calculated a base offense level of 8, see U.S.S.G. § 2L1.2(a), and added 16 because Ramirez-Silva had been removed following a conviction for alien smuggling, id. § 2L1.2(b)(l)(A)(vii). After a 3-level reduction for acceptance of responsibility, id. § 3E1.1, his total offense level was 21. With a criminal history category of III, his guidelines imprisonment range was 46 to 57 months.
Ramirez-Silva filed objections and a sentencing memorandum in response to the presentence report. In his objections he asserted that (1) the statutory maximum should be 2 years instead of the 20 noted in the presentence report, and (2) § 2L1.2 is “flawed” because it lacks empirical support and should be ignored by the district court. In his memorandum, Ramirez-Silva discussed the sentencing factors in 18 U.S.C. § 3553(a). He mentioned that he is a father of three and “remains close to his parents and siblings,” that he faces potential deportation and revocation *746of supervised release, and that his one conviction is already accounted for in criminal history points and does not warrant the “profoundly severe” 16-level increase under § 2L1.2(b)(l)(A)(vii). He also noted that the Southern District of Illinois does not have a fast-track program:
Section 5K3.1 states that upon motion of the government, the Court may depart downward not more than four-levels pursuant to an early disposition program authorized by the U.S. Attorney General and the U.S. Attorney in a particular district. Unfortunately, an early disposition program or “fast track” program is not available in this district. However, the Seventh Circuit has determined that:
The Supreme Court’s decision in Kimbrough v. United States ... has rekindled debate about whether the absence of a fast track program can be a factor in the choice of sentence.
See United States v. Valadez-Martinez, 295 Fed.Appx. 832, 835 (7th Cir.2008).
In an addendum to the presentence report, the probation office addressed the two objections but did not discuss the arguments in the sentencing memorandum concerning § 3553(a).
At sentencing the district court overruled the two objections and adopted the guidelines calculations in the presentence report. Ramirez-Silva, through counsel, then discussed his § 3553(a) arguments, emphasizing his disagreement with the 16-level increase, his limited criminal history, and his lack of access to a fast-track program:
Additionally, Your Honor, the Court is now free to consider the lack of the fast track program in this district. And the recent Seventh Circuit case, Valdez-Martinez, the Seventh Circuit has now recognized this is a valid factor for this Court to consider. There are numerous districts across the country who, some of them, based upon my reading of the case, have only one reentry case a year. And yet they have a fast track program.
Because it is not available here, defendants in this district are subject to sentencing disparity. They do not have the benefit of that. I think that’s a very valid consideration for the Court.
In allocution Ramirez-Silva personally addressed the court and added that “[tjhere’s no work in Mexico, and it’s very hard to feed my family.” That statement prompted the court to reply that “[w]ork may be tough in Mexico,” but in the United States “we’re almost at a low tolerance for people who come into this country illegally and then commit crimes.” The court went on to express the importance of adequately deterring Ramirez-Silva from returning to this country and the need for the sentence to protect the public and reflect the seriousness of the offense. The court then imposed a bottom-of-the-range sentence of 46 months in prison (though with credit for one month served in ICE detention).
On appeal Ramirez-Silva does not dispute the district court’s guidelines calculations, and because his prison term is within the resulting range, the sentence is presumed to be reasonable. See United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). According to Ramirez-Silva, however, the court did not adequately address several of his arguments in favor of greater leniency.
Ramirez-Silva first asserts that the district court did not respond to his contention that a lower sentence was warranted because he is the father of three, because he is close to his mother who lives in Mexico, and because he came to this country to find work to feed his family. A sentencing court is required to consider the § 3553(a) factors and to address any substantial argument the defendant *747makes, United States v. Martinez, 520 F.3d 749, 753 (7th Cir.2008); United States v. Sainz-Preciado, 566 F.3d 708, 716 (7th Cir.2009), but the court need not discuss every factor and may reject “stock arguments” without any discussion at all, United States v. Young, 590 F.3d 467, 474 (7th Cir.2009); United States v. Mendoza, 576 F.3d 711, 721 (7th Cir.2009); Martinez, 520 F.3d at 753; United States v. Tahzib, 513 F.3d 692, 694-95 (7th Cir.2008); United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.2005). Ramirez-Silva’s contention about his family situation and his purported reason for being in the United States unlawfully are precisely the types of stock arguments that a sentencing judge is free to reject without comment. Young, 590 F.3d at 467; Martinez, 520 F.3d at 753; Tahzib, 513 F.3d at 694-95. The representation that work was unavailable in Mexico and that Ramirez-Silva was having difficulty feeding his family constituted the bulk of his argument about his family but did nothing to distinguish him from other defendants. Nor did the representation that he is close to his mother.
Ramirez-Silva next argues that the district court should have explicitly addressed his contention that § 2L1.2 is “flawed.” He no longer contends that § 2L1.2 could be ignored in calculating the guidelines range; rather, he insists that the court, as an exercise of its § 3553(a) discretion, should have evaluated whether applying the guideline to him would lead to an unreasonable sentence. And it would have, says Ramirez-Silva, because his one conviction not only increased the statutory maximum under § 1326(b) from 2 years to 20, but also yielded a 16-level increase under § 2L1.2(b)(l)(A)(vii) as well as criminal history points.
An argument that § 2L1.2 leads to “an unsound sentence in the particular circumstances of the case” might not be frivolous, see United States v. Aguilar-Huerta, 576 F.3d 365, 367-69 (7th Cir.2009), but despite the window dressing, that is not the argument Ramirez-Silva made. Once again he failed to explain to the district court how his circumstances were distinguishable from every other defendant who is subject to the guideline. Ramirez-Silva stated at sentencing that “he has no other priors. He has no crimes of violence. He has no drug charges. He has nothing of that nature. He is simply one of those poor souls who comes from a poor country and came here to work.” But § 2L1.2(b)(l)(A)(vii) specifically requires a 16-level increase for any defendant with a prior alien-smuggling conviction, so the district court had no reason to address the absence of convictions for drug offenses or violent crimes. And the court already had stated that it was not going to ignore the guideline:
I think it’s consistent with what this Court’s ruled before in other similar cases. And if there’s going to be a change in the guidelines, the Sentencing Commission or the Court of Appeals is going to have to do it. But in reviewing ... the applicable guidelines and the statute, the Court finds that the presen-tence report, the calculation of the 16-level enhancement, is an appropriate application here.
Ramirez-Silva was not making an argument that the guideline was particularly unsuited to his personal circumstances; he was arguing that the guideline is “flawed” and should not ever be given effect. The sentencing court was under no obligation to even consider that argument. See Aguilar-Huerta, 576 F.3d at 367-68.
Ramirez-Silva next argues that the district court failed to consider potential sentencing disparities created by the lack of a fast-track program in the Southern District of Illinois, see 18 U.S.C. § 3553(a)(6). He notes that U.S.S.G. *748§ 5K3.1 allows the government to move for a four-level guideline reduction “pursuant to an early disposition program” that exists in other districts.
Before Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), we had held that a sentence was not unreasonable solely because it was imposed in a jurisdiction that did not have a fast-track program. See United States v. Pacheco-Diaz, 506 F.3d 545, 552-53 (7th Cir.2007); United States v. Galicia-Cardenas, 443 F.3d 553, 555 (7th Cir.2006); United States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir.2006). We have not evaluated whether Kimbrough compels another look at the issue, but other circuits have required defendants asking for a lower sentence on the basis of a purported fast-track “disparity” to establish that they are similarly situated to defendants in districts with a program and, factually, would have been eligible for fast-track relief. See United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.2008); United States v. Vargas, 477 F.3d 94, 100 (3d Cir.2007), overruled on other grounds by United States v. Arrelucea-Zamudio, 581 F.3d 142, 149 (3d Cir.2009).
Ramirez-Silva stated at sentencing only that these programs exist in other districts, but he did not assert that he would have met the eligibility criteria for even one program of those which exist. Counsel failed to explain, for example, (1) the minimum eligibility thresholds set out by United States Attorneys’ offices with approved fast-track programs, (2) whether the two months that Ramirez-Silva waited after his indictment before pleading guilty would have put him on a fast-track in any district, (3) whether fast-track defendants must waive their right to appeal, (4) whether there are differences among fast-track districts as to the amount of sentencing consideration given, and (5) whether Ramirez-Silva met any disqualifying criteria (such as his prior conviction for alien smuggling or his violation of supervised release). See Paul W. Hahn, Responding to the Fast-Track Disparity Argument, 54 U.S. Att’ys’ Bull. 11, 15-16 (2006) (discussing how prosecutors confronted with a fast-track disparity argument can initially determine whether a defendant would qualify for fast-track disposition in a fast-track district). The district court properly disregarded the argument because Ramirez-Silva never explained or even asserted that he would be eligible for a fast-track reduction in any district.
Finally, Ramirez-Silva argues that the district court failed to consider the fact that he is likely to face revocation of his supervised release and removal after his release from prison. He asserts that consideration of future reimprisonment and removal was required to insure his punishment is not greater than necessary, see 18 U.S.C. § 3553(a)(1), (a)(2)(A-C). These are more examples of stock arguments that are routinely made to sentencing courts. Every defendant convicted under § 1326(a) could argue for mitigation based on his inevitable removal after release from imprisonment, and, as such, the contention was not substantial. See Mendoza, 576 F.3d at 722. Moreover, the district court was clearly aware of the possibility of deportation and mentioned it several times at sentencing. As for the possibility of revocation, any period of reimprisonment would be part of the penalty for the original alien-smuggling offense and is of little relevance to punishment for the current offense. See Johnson v. United States, 529 U.S. 694, 700-01, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).
Affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478435/ | ORDER
Jaleel Abdul Lafi III pleaded guilty to four counts of distributing crack cocaine, 21 U.S.C. § 841(a)(1), one of which, he admitted, involved at least 50 grams of crack. Lafi also pleaded guilty to one count of carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). The district court sentenced Lafi to a total of 10 years’ imprisonment for distributing the drugs, the minimum allowed given the quantity of crack, see 21 U.S.C. § 841(b)(l)(A)(iii), and a consecutive 5 years for the gun offense, the statutory minimum, see 18 U.S.C. § 924(c)(l)(A)(i). Lafi filed a notice of appeal, but his appointed lawyers have concluded that the appeal is frivolous and move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel have filed a facially adequate supporting brief, and Lafi submitted a response under Circuit Rule 51(b).
Lafi has told counsel that he does not wish to challenge his guilty pleas, so counsel properly omit a discussion of the volun-tariness of the pleas or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 671-72 (7th Cir.2002).
Counsel instead focus on whether Lafi could raise a nonfrivolous sentencing issue but concede that both the total imprisonment and supervised release are at the statutory mínimums and could not lawfully have been shorter. See 21 U.S.C. § 841(b)(l)(A)(iii);18 U.S.C. § 924(c)(1)(A)(i). With the exception of two circumstances that are not relevant here, see 18 U.S.C. § 3553(e) — (f), a district court may not sentence a defendant below a statutory minimum. See United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009).
Finally, Lafi argues in his Rule 51(b) response that at sentencing the district court should have considered the differing offense levels for crimes involving like amounts of crack and powder cocaine. But this argument fails for the same reason: the district court was constrained by statute from sentencing Lafi below the mandatory minimums. See Kimbrough v. United States, 552 U.S. 85, 108, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); United States v. Roberson, 474 F.3d 432, 436 (7th Cir.2007).
*750Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478439/ | PER CURIAM.
Larry Grimlie appeals from the judgment of the Bankruptcy Appellate Panel (BAP) affirming the bankruptcy court’s1 grant of summary judgment in favor of the trustee of Grimlie’s bankruptcy estate. After careful review, see In re Vote, 276 F.3d 1024, 1026 (8th Cir.2002) (review standards), we affirm for the reasons stated by the BAP, see 8th Cir. R. 47B.
. The Honorable Robert J. Kressel, United States Bankruptcy Judge for the District of Minnesota. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478994/ | ORDER
Counsel having failed to become a member of the bar of this court as required by the Federal Circuit Rule 46, it is
ORDERED that the appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478442/ | MEMORANDUM **
Roosevelt Roy Newton appeals from the denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Newton’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478444/ | MEMORANDUM **
Rafael Castanon-Espitia appeals from his guilty-plea conviction and 57-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Casta-non-Espitia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478447/ | MEMORANDUM **
Edgar Gonzalez Serrano appeals from his guilty-plea conviction and 30-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Serrano’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief has been filed, but the government has filed a motion for summary affirmance.
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. The government’s motion is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478449/ | MEMORANDUM **
Godlife Asad Muhammad appeals from the 108-month sentence imposed upon remand for resentencing. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Muhammad’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No *856pro 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. 846, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478452/ | PER CURIAM:
Petitioner/Appellant John G. Westine, proceeding pro se, appeals the denial of his motion for a status hearing on his amended “writ of habeas corpus under the savings clause.” Westine argues that he is actually innocent of his offenses of conviction and is entitled to relief under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C. § 2255. He asserts that his claim was a properly filed § 2241 habeas petition.
“[I]ssues not briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 74, 172 L.Ed.2d 67 (2008).
After reviewing the record, we conclude that Westine has abandoned any challenge to the denial of his motion for a status hearing by not raising any arguments related to it in his brief on appeal. Therefore, we affirm the denial of his motion.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478453/ | PER CURIAM:
William E. Folsom, appointed counsel for James Sunshine Barreto, in this direct criminal appeal, has moved to withdraw from further representation of the appel*997lant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Barreto’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478456/ | PER CURIAM:
This is an appeal from the grant by the district court of a declaratory judgment and permanent injunction in favor of Chick-fil-A, Inc. (Chick-fil-A) against CFT Developments, LLC, Panda Restaurant Group, Inc. and Panda Express, Inc. (collectively, Panda Express). After discovery and a four-day bench trial, the district court enforced a valid restrictive covenant precluding Panda Express from constructing, leasing or operating a restaurant on property adjoining Chick-fil-A in Mount Dora, Florida. It permanently enjoined Panda Express from operating a restaurant on that property.
We have thoroughly reviewed the record in this case, the briefs, the arguments of counsel presented, and the well-reasoned findings of fact and conclusions of law made by the district court. Finding no error, the judgment of the district court is affirmed.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478443/ | MEMORANDUM **
Roosevelt Roy Newton appeals from the denial of his motion pursuant to 18 U.S.C. § 3582(c)(2) for a reduced sentence. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Newton’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478445/ | MEMORANDUM **
Rafael Castanon-Espitia appeals from his guilty-plea conviction and 57-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326(a). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Casta-non-Espitia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478448/ | MEMORANDUM **
Edgar Gonzalez Serrano appeals from his guilty-plea conviction and 30-month sentence for being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Serrano’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief has been filed, but the government has filed a motion for summary affirmance.
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. The government’s motion is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478450/ | MEMORANDUM **
Godlife Asad Muhammad appeals from the 108-month sentence imposed upon remand for resentencing. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Muhammad’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No *856pro 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. 846, 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. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478451/ | PER CURIAM:
Petitioner/Appellant John G. Westine, proceeding pro se, appeals the denial of his motion for a status hearing on his amended “writ of habeas corpus under the savings clause.” Westine argues that he is actually innocent of his offenses of conviction and is entitled to relief under 28 U.S.C. § 2241 based on the savings clause of 28 U.S.C. § 2255. He asserts that his claim was a properly filed § 2241 habeas petition.
“[I]ssues not briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 74, 172 L.Ed.2d 67 (2008).
After reviewing the record, we conclude that Westine has abandoned any challenge to the denial of his motion for a status hearing by not raising any arguments related to it in his brief on appeal. Therefore, we affirm the denial of his motion.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478454/ | PER CURIAM:
William E. Folsom, appointed counsel for James Sunshine Barreto, in this direct criminal appeal, has moved to withdraw from further representation of the appel*997lant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Barreto’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478455/ | PER CURIAM:
Jose Rosario-Oquendo, through counsel, ■appeals his 800-month sentence for conspiracy to possess with intent to distribute more than 5 kilograms of cocaine. Rosario-Oquendo argues that the district court erred (1) in applying a 4-level role enhancement under U.S.S.G. § 3Bl.l(a), and (2) in holding him accountable for more than 150 kilograms of cocaine. For the reasons set forth below, we affirm.
I.
Rosario-Oquendo pled guilty to conspiracy to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(ii), and 846. A notice filed by the government set forth the following facts. In June 2007, federal and local law enforcement agents discovered that a specific drug-trafficking organization was mailing cocaine almost every week from Puerto Rico to Orlando. In the fall of 2006, Miguel Antonio Montes took charge of the organization’s Orlando operations. The notice stated that Rosario-Oquendo
worked directly with the drug trafficking organization in Puerto Rico. During telephone conversations with Montes, [Rosario-Oquendo] arranged for the distribution of cocaine from Puerto Rico to Orlando; he delivered cocaine to associates in Puerto Rico for packaging and mailing to Orlando, Florida; and he received drug proceeds from couriers sent by Montes in Orlando, including, but not limited to, indicted co-conspirators Ricardo Perlaza, Feliz Hernandez, Jorge Cortijo, Luis Cruz, Iris Pacheco, Ida Acevedo and Loanna Cortijo.
The government also submitted transcripts of four intercepted telephone conversations between Montes and Rosario-Oquendo.
At the plea hearing, Rosario-Oquendo admitted that the conspiracy involved 5 kilograms or more of cocaine, but disputed the government’s contention that the conspiracy involved more than 150 kilograms of cocaine. The magistrate judge found that there was a sufficient factual basis for Rosario-Oquendo’s guilty plea, and the district court subsequently adjudicated Rosario-Oquendo guilty.
The PSI set Rosario-Oquendo’s base offense level at 38, pursuant to U.S.S.G. § 2Dl.l(c)(l), because his offense involved more than 150 kilograms of cocaine. Rosario-Oquendo received a four-level in*26crease, pursuant to § 3Bl.l(a), because he was an organizer or leader of the offense, which involved five or more participants or was otherwise extensive. He received a 3-level reduction, under § 3El.l(a) and (b), for acceptance of responsibility, resulting in a total offense level of 39. Rosario-Oquendo’s total offense level of 39 combined with his criminal history category of II yielded a guideline imprisonment range of 292 to 365 months.
Rosario-Oquendo objected to the drag amount set forth in the PSI, arguing that he should be held accountable for at least 5, but less than 15, kilograms of cocaine, rather than 150 kilograms or more of cocaine. He also objected to the application of the four-level § 3Bl.l(a) enhancement for his role in the offense, arguing that he was not an organizer or leader.
At the sentencing hearing, Ray Schulte, an officer with the Orange County Sheriffs Office, testified that Montes told him that Rosario-Oquendo initially shipped to Montes smaller quantities of 4 kilograms of cocaine, but eventually shipped up to 50 kilograms of cocaine per week in April and May 2007. Schulte noted that Montes and Rosario-Oquendo were engaged in transactions with one another from approximately September 2006 through June 2007. Referring to the transcript of a May 30, 2007 telephone conversation, Schulte testified that Rosario-Oquendo told Montes that he was planning to ship 10 kilograms daily, for a total of 40 to 50 kilograms of cocaine per week. Based on Schulte’s investigation, these amounts were consistent with the amounts of cocaine that actually were shipped. Schulte noted that, during an intercepted conversation on June 1, 2007, Rosario-Oquendo stated that “[t]here are 60 Chanels,” meaning that Rosario-Oquendo had 60 kilograms of cocaine bearing the Chanel label.
Schulte testified that Montes paid for his cocaine by sending couriers with money to Puerto Rico. These couriers included Ricardo Perlaza, Felix Hernandez, Luis Gonzalez, Aida Acevedo, Jorge Cortijo, and Luana Cortijo. Schulte stated that these couriers told him that Rosario-Oquendo would meet them at the airport in Puerto Rico and give them directions while they were there. Schulte also testified that Rosario-Oquendo himself did not package and mail the cocaine, but that other people did this under Rosario-Oquenclo’s direction. Schulte noted that, during one telephone conversation with Montes, Rosario-Oquendo discussed sending Luis Cruz, a money courier known as “the old guy,” to Boston.
Rosario-Oquendo argued that the court should not consider Schulte’s testimony because it could not reasonably be assured that the information he provided was accurate. Rosario-Oquendo also argued that there was insufficient evidence to determine that he was a leader or organizer, and that he should be held accountable for less than 15 kilograms of cocaine.
The government responded that it was apparent from the transcripts of telephone conversations that Rosario-Oquendo was supplying Montes with large quantities of cocaine, as Rosario-Oquendo at once said that he was able “to move ten a day, 40 to 50 per week” and acknowledged that “he had then available 60 kilos that he had just washed.” The government also noted that Rosario-Oquendo directed the activities of seven money couriers who traveled to Puerto Rico, as well as the activities of Cruz, whom he sent to Boston.
The court stated that it had heard Montes testify in other proceedings and it did not “have any reason to believe that what [Montes] had said to Mr. Schulte and what is included in the transcripts that [the government] referred to is untrue.”
*27The court overruled Rosario-Oquendo’s objections to the PSI’s factual statements and guideline calculations. It found that Rosario-Oquendo had a total offense level of 39, a criminal history category of II, and a guideline imprisonment range of 292 to 365 months. It sentenced Rosario-Oquen-do to 300 months’ imprisonment, to be followed by a 5-year term of supervised release.
II.
“A district court’s enhancement of a defendant’s offense level based on his role as an organizer or leader is a finding of fact reviewed for clear error.” United States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). “The government bears the burden of proving by a preponderance of the evidence that the defendant had an aggravating role in the offense.” United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003). We also review for clear error the district court’s factual determination of the drug quantity for which the defendant is accountable. United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.2005).
The Federal Rules of Evidence do not apply at sentencing. Fed.R.Evid. 1101(d)(3). Thus, hearsay may be admitted at sentencing if there are “sufficient indicia of reliability, the [district] court makes explicit findings of fact as to credibility, and the defendant has an opportunity to rebut the evidence.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted). “[T]he focus is upon the question of [the hearsay’s] reliability, which must be determined on a case by case basis.” United States v. Lee, 68 F.3d 1267, 1275 (11th Cir.1995).
The Sentencing Guidelines provide that a four-level enhancement may be applied if “the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(a). In determining whether a § 3Bl.l(a) enhancement applies, the district court should consider:
(1) exercise of decision-making authority, (2) nature of participation in the commission of the offense, (3) recruitment of accomplices, (4) claimed right to a larger share of the fruits of the crime, (5) degree of participation in planning or organizing the offense, (6) nature and scope of the illegal activity, and (7) degree of control and authority exercised over others.
Rendon, 354 F.3d at 1331-32 (quotation omitted); U.S.S.G. § 3B1.1, comment. (n.4). “There is no requirement that all the considerations have to be present in any one case.” United States v. Ramirez, 426 F.3d 1344, 1356 (11th Cir.2005). However, “[s]ection 3B1.1 requires the exercise of some authority in the organization, the exertion of some degree of control, influence, or leadership.” United States v. Gupta, 463 F.3d 1182, 1198 (11th Cir.2006). “Thus, for example, a defendant’s management of assets, standing alone, is insufficient to support an enhancement under Section 3B1.1.” United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir.2009). More than one person can qualify as a “leader” or “organizer” of a criminal conspiracy for purposes of receiving the role enhancement. See U.S.S.G. § 3B1.1, comment. (n.4).
The government “must establish the quantity of drugs by the preponderance of the evidence.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993). When ■ a conviction stems from a conspiracy charge, the defendant is responsible for the amount of drugs in all reasonably foreseeable acts done in furtherance of the conspiracy. U.S.S.G. § lB1.3(a)(l)(B). Even if the district court does not make individualized findings, a defendant’s sentence may be upheld if the record supports *28the amount of drugs attributed to the defendant. Ismond, 993 F.2d at 1499. Base offense level 32 applies to drug offenses involving at least 5, but less than 15, kilograms of cocaine. U.S.S.G. § 2D1.1(c)(4). Base offense level 38 applies to drug offenses involving 150 kilograms or more of cocaine. Id. § 2Dl.l(c)(l).
III.
As an initial matter, Rosario-Oquendo argues that the district court should not have considered Schulte’s hearsay testimony about Montes’s prior statements. It should be noted that much of Schulte’s testimony was simply his interpretation of telephone conversation transcripts or his own opinions based on his investigation, rather than testimony about what Montes had told him. Thus, this testimony did not constitute hearsay. See Fed.R.Evid. 801(c) (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). Although Schulte’s testimony regarding Montes’s statements constituted hearsay, Schulte’s testimony showed “sufficient indicia of reliability” and was properly admitted. See Zlatogur, 271 F.3d at 1031. Much of Schulte’s testimony, including his testimony about Montes’s statements, was supported by the transcripts of the telephone conversations between Montes and Rosario-Oquendo, and the district court specifically noted that it had heard Montes testify in other related cases and found no reason to disbelieve what he told Schulte. Under these circumstances, the district court did not err in admitting and considering Schulte’s testimony.
Role Enhancement
The facts culled from the plea hearing and the evidence presented at sentencing provide an adequate factual basis for the four-level role enhancement. The government’s notice of the factual basis for the plea stated that Rosario-Oquendo arranged for the distribution of narcotics from Puerto Rico to Orlando, delivered cocaine to associates in Puerto Rico for packaging and mailing to Orlando, and received proceeds from couriers sent by Montes. Rosario-Oquendo stated at the plea hearing that the factual basis accurately described his role in the offense.
At the sentencing hearing, Schulte stated that Montes’s couriers acted under Rosario-Oquendo’s direction while in Puerto Rico. He identified six individuals who acted as couriers — Perlaza, Hernandez, Gonzalez, Acevedo, Jorge Cortijo, and Luana Cortijo. Furthermore, Schulte stated that an unspecified number of individuals packaged and mailed cocaine under Rosario-Oquendo’s direction. Schulte also testified that Rosario-Oquendo directed Cruz, known as “the old guy,” to travel to Boston in connection with the conspiracy. This testimony was directly supported by transcripts of telephone conversations, in which Montes asked about “the old guy” and Rosario-Oquendo responded that he sometimes sent him “over there to Massachusetts and stuff.” Thus, the evidence presented at sentencing established that Rosario-Oquendo exerted “some degree of control, influence, or leadership” over at least seven individuals — the six named couriers and Cruz — in addition to unnamed individuals who packaged and mailed cocaine under Rosario-Oquendo’s direction. See Gupta, 463 F.3d at 1198; cf. United States v. Yates, 990 F.2d 1179, 1182 (11th Cir.1993) (holding that the district court erred in applying the four-level role enhancement where there was no evidence to establish that' the defendant was more than a mere seller of narcotics). Accordingly, the district court did not clearly err in applying the four-level § 3Bl.l(a) en*29hancement. See Rendon, 354 F.3d at 1331.
Drug Quantity
The evidence established that Rosario-Oquendo was responsible for more than 150 kilograms of cocaine. Schulte testified at the sentencing hearing that Rosario-Oquendo began supplying Montes with smaller quantities of cocaine in September 2006, although he eventually was shipping up to 50 kilograms of cocaine per week in April and May 2007. As noted above, the district court properly could consider Schulte’s testimony. Furthermore, Schulte’s testimony was supported by a transcript of a telephone conversation between Montes and Rosario-Oquendo, in which Rosario-Oquendo stated that he planned to ship “ten daily” for a total of “40 or 50.” Schulte noted that, through his investigation, he determined that these amounts were consistent with the amount of cocaine Rosario-Oquendo actually shipped. Schulte also noted that RosarioOquendo referenced, in a conversation with Montes, 60 kilograms of cocaine bearing the “Chanel” label. The transcripts of telephone conversations between Montes and Rosario-Oquendo verify that RosarioOquendo told Montes that “[t]here are 60 Chanels.” Adding together the 60 kilograms of cocaine bearing the Chanel label and the 40 to 50 kilograms of cocaine per week that Rosario-Oquendo shipped in April and May 2007 results in a total drug quantity of over 150 kilograms. Accordingly, based on Schulte’s testimony and the telephone transcripts, the district court did not clearly err in holding Rosario-Oquendo accountable for more than 150 kilograms of cocaine. See Rodriguez, 398 F.3d at 1296.
Accordingly, based on our review of the record and consideration of the parties’ briefs, we affirm Rosario-Oquendo’s 300-month sentence.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478463/ | ON PETITION FOR HEARING EN BANC
ORDER
Appellants Ninestar Technology Co., Ltd., et al., filed a petition for hearing en banc or, in the alternative, certification to the United States Supreme Court.
Upon consideration thereof, it is
ORDERED that the petition for hearing en banc and request, for certification be, and the same hereby are, DENIED.
The appeal will be heard by a panel. A party may argue to the panel the need to overrule precedent, or other basis for hearing en banc, and the panel, if so convinced, will request a poll on rehearing en banc. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478466/ | ON MOTION
ORDER
Gabriel Cosme moves for an extension of time to file his brief. The Department of Veterans Affairs moves for a 33-day extension of time, until November 17, 2009, to file its brief.
On July 31, 2009, the court granted Cosme’s motion for an extension of time to file his brief but indicated that no further extensions would be granted. Counsel for Cosme asserts that “our mother in law passed on August 28, 2009 after a long bout with cancer and we have not been able to attend pending matters in our office.” The court notes that Cosme served his brief on September 2, 2009, two days late. Under these circumstances, the court grants Cosme’s motion.
Accordingly,
IT IS ORDERED THAT:
(1) The motions are granted.
(2) The motion for reconsideration is granted, the mandate is recalled, and the petition is reinstated. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478468/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. RApp. P. 42(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478470/ | ON MOTION
ORDER
Theodore Dade, Jr. moves for leave to proceed in forma pauperis.
The court notes that Dade’s petition was dismissed on June 16, 2009, 356 Fed.Appx. 371, for failure to pay the fee.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) The mandate is recalled, the court’s June 16, 2009 dismissal order is vacated, and the petition for review is reinstated.
(3) The Department of Commerce should calculate its brief due date from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478472/ | ON MOTION
ORDER
RADER, Circuit Judge.
Mordechai Orian and Global Horizons, Inc. (Orian) move to transfer this appeal to the United States Court of Appeals for the District of Columbia Circuit. Berliner, Corcoran & Rowe, LLP oppose and request dismissal of this appeal.
Mordechai Orian and Global Horizons, Inc. (Orian) appeal from a judgment of the United States District Court for the District of Columbia. The case involves a contract dispute and malpractice. This court is a court of limited jurisdiction. 28 U.S.C. § 1295. Because this case does not fall within our jurisdiction, we transfer this appeal to the United States Court of Appeals for the District of Columbia Circuit pursuant to 28 U.S.C. § 1631.
*84Accordingly,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal is transferred to the United States Court of Appeals for the District of Columbia Circuit. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478474/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478476/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478480/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478482/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) and to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478484/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
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