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https://www.courtlistener.com/api/rest/v3/opinions/8478467/ | 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/8478469/ | 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/8478471/ | 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/8478473/ | 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/8478475/ | 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/8478479/ | 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/8478481/ | 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/8478483/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478485/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478487/ | 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/8478489/ | ORDER
The petitioner 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 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/8478995/ | ORDER
The petitioner 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 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/8478491/ | ORDER
PER CURIAM.
This case was submitted, following oral argument, on July 7, 2009. On October 30, 2009, defendant-cross-appellant SonoSite, Inc., advised us that the parties have settled their dispute in this case. SonoSite moved to remand the case to the district court to permit consideration of an unopposed motion to vacate the Rule 54(b) judgment of the district court. SonoSite advised us that the plaintiffs-appellants do not oppose the motion.
In light of the settlement of the dispute, we conclude that the proper course of action is to dismiss the appeal without re*89manding the case to the district court or otherwise indicating to the district court what action it should take on SonoSite’s request that the district court’s judgment be vacated. The parties remain free, of course, to move in the district court to vacate the judgment or for any other relief they wish to seek from that court.
Accordingly, it is
ORDERED that the appeal is dismissed. SonoSite’s motion is otherwise DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478493/ | 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/8478497/ | ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) 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/8478499/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478501/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478505/ | 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/8478507/ | ON MOTION
ORDER
Upon consideration of Donald A. Davis’ unopposed motion for reconsideration of the court’s order dismissing his petition for review for failure to file a Fed. Cir. R. 15(c) statement concerning discrimination, the statement now having been filed,
IT IS ORDERED THAT:
The motion is granted. The mandate is recalled, the dismissal order is vacated, and the petition for review is reinstated. Davis’ brief (form enclosed) is due within 30 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478509/ | ON MOTION
ORDER
James Alston having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The order of dismissal and the mandate are vacated and recalled, and the petition for review is reinstated.
(2) The certified list from the Arbitrator is due on or before November 16, 2009, 2009 WL 6084621. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478513/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, 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/8478515/ | ORDER
Petitioner having filed the. required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009, 370 Fed.Appx. 84, 2009 WL 6084439, dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
*94(2) Respondent’s brief is due on or before December 9, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478517/ | ORDER
The Court, having considered the motion of plaintiff-appellant PAM SpA for recall of the mandate of the Court, and the record herein, it is hereby—
ORDERED that plaintiff-appellant PAM’s motion is granted; and it is further
ORDERED that the Court’s mandate herein issued on November 16, 2009, be, and the same hereby is, withdrawn. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478494/ | 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/8478496/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478500/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478502/ | 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8478504/ | *91ORDER
The appellant having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) 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/8478506/ | 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/8478508/ | ON MOTION
ORDER
Upon consideration of Donald A. Davis’ unopposed motion for reconsideration of the court’s order dismissing his petition for review for failure to file a Fed. Cir. R. 15(c) statement concerning discrimination, the statement now having been filed,
IT IS ORDERED THAT:
The motion is granted. The mandate is recalled, the dismissal order is vacated, and the petition for review is reinstated. Davis’ brief (form enclosed) is due within 30 days of the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478510/ | ON MOTION
ORDER
James Alston having filed the required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The order of dismissal and the mandate are vacated and recalled, and the petition for review is reinstated.
(2) The certified list from the Arbitrator is due on or before November 16, 2009, 2009 WL 6084621. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478512/ | ORDER
■ Petitioner having filed the required brief,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November B, 2009, 370 Fed.Appx. 81, 2009 WL 6084432, dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
(2) Respondent’s brief is due on or before December 7, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478514/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, 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/8478516/ | ORDER
Petitioner having filed the. required Statement Concerning Discrimination,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The court’s November 10, 2009, 370 Fed.Appx. 84, 2009 WL 6084439, dismissal order is vacated, the mandate is recalled, and the petition for review is reinstated.
*94(2) Respondent’s brief is due on or before December 9, 2009. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478518/ | ORDER
The Court, having considered the motion of plaintiff-appellant PAM SpA for recall of the mandate of the Court, and the record herein, it is hereby—
ORDERED that plaintiff-appellant PAM’s motion is granted; and it is further
ORDERED that the Court’s mandate herein issued on November 16, 2009, be, and the same hereby is, withdrawn. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478521/ | ON MOTION
ORDER
LINN, Circuit Judge.
The United States moves to affirm the judgment of the United States Court of Federal Claims in this case. The appellants respond. The United States replies.
This case involves federal employees seeking overtime pay for the time spent driving to and from work in a government-owned vehicle. This court recently issued a decision in Easter v. United States, 575 F.3d 1332 (Fed.Cir.2009), affirming the judgment of the Court of Federal Claims that federal employees who are required to use government vehicles when driving between their homes and their places of work are not entitled to compensation for such travel time under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.
In Easter, we noted that the dispute in that case was “identical in all material respects to the dispute that was before this court less than three years ago in Adams v. United States, 471 F.3d 1321 (Fed.Cir. 2006) and is similar to the dispute that was previously before this court in Bobo v. United States, 136 F.3d 1465 (Fed.Cir. 1998).” Easter, 575 F.3d at 1333. We stated that “[t]he task in [Easter ] is therefore mainly to determine whether there is any reason for us to distinguish or depart from the Adams and Bobo decisions. We conclude that there is not, and we therefore affirm the decision of the Court of Federal Claims granting summary judgment in favor of the government.” Id.
Similarly, in this case, the Court of Federal Claims noted that Easter, Adams, and *99Bobo controlled its disposition of the case, notwithstanding the plaintiff’s disagreement with the holdings of those cases. Factually, this case is very similar to Easter. The Court of Federal Claims in this case properly relied on Easter, Adams, and Bobo and held that overtime pay is not permitted for such an activity.
Under the circumstances, we determine that affirmance of the judgment of the Court of Federal Claims is required by our precedent. See Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994) (“summary disposition is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists”).
Accordingly,
IT IS ORDERED THAT:
(1) The motion for affirmance is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478527/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss Dominic Sabbia’s appeal from an order of the United States Court of Appeals for Veterans Claims denying a petition for a writ of mandamus. In the alternative, the Secretary moves for summary affirmance of that order.
On June 3, 2009, Sabbia filed a petition for a writ of mandamus with the Court of Appeals for Veterans Claims seeking payment based on his assertion that his father had filed a claim in 1981 for total disability based on unemployability. The Court of Appeals for Veterans Claims denied Sab-bia’s petition because there was no evidence that Sabbia’s father had ever filed a disability claim with the Department of Veterans Affairs. This appeal followed.
The Federal Circuit has exclusive jurisdiction to review the validity of a decision of the Court of Appeals for Veterans Claims on a rule of law or of any statute or regulation. See 38 U.S.C. § 7292(a). This rule applies as well when we review the validity of the Court of Appeals for Veterans Claims’ application of the All Writs Act, which provides that the court may issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); see Lamb v. Principi, 284 F.3d 1378, 1381 (Fed.Cir. 2002). But, absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a law or regulation as applied to the facts of a particular case” when evaluating a denial of writ.” 38 U.S.C. § 7292(d)(2).
The issue in this appeal is whether the evidence indicated that Sabbia’s father had filed a disability claim. That issue is a factual issue beyond this court’s jurisdiction. Thus, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) The Secretary’s alternative motion for summary affirmance is denied as moot.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478531/ | ON MOTION AND PETITION FOR WRIT OF MANDAMUS
ORDER
LINN, Circuit Judge.
In 2009-1595, Creative Compounds, LLC moves for reconsideration of the court’s order dismissing its appeal as premature. Starmark Laboratories opposes. Creative Compounds replies. In Misc. 926, Creative Compounds petitions for a •writ of mandamus to direct the United States District Court for the Southern District of Florida to issue a permanent injunction against Creative Compounds. Starmark opposes. Creative Compounds replies.
In the district court, Creative Compounds filed a complaint seeking a declaration that it did not infringe Starmark’s patent and that the patent was invalid. Starmark filed a counterclaim asserting that Creative Compounds infringed Star-mark’s patent and that a second patent, owned by Creative Compounds, was invalid. Starmark sought damages and an injunction. On September 17, 2009, the district court determined that Starmark’s patent was infringed by Creative Compounds and was not invalid. The district court also determined that Creative Compounds’ patent was invalid. The district court did not at that time rule on Star-mark’s request for damages or an injunction. A trial on damages is scheduled for June 2010. Creative Compounds appealed the district court’s September 17 order.
On December 30, 2009, 2009 WL 5171738, we dismissed Creative Compounds’ appeal, 2009-1595, because there was no final judgment. We also determined that the case was not final except for an accounting because Starmark’s request for injunctive relief remained pending.
Although Starmark’s request for injunc-tive relief remained pending, Creative Compounds also moved “for entry of confessed permanent injunction.” Creative Compounds informs us that on December 29, 2009, the district court denied Creative Compounds’ motion for a permanent injunction “WITHOUT PREJUDICE to either party’s right to file a Motion for Permanent Injunction at the conclusion of the second phase of these proceedings.” The district court stated that “the equities militate against the entry of a permanent injunction at this juncture.” The district court also expressed concern about the. “historic federal policy against piecemeal appeals.”
Starmark’s request for relief in the form of a permanent injunction, asserted in its answer to the complaint, has not been ruled on, and it appears that Starmark has not yet moved for such an injunction. Thus, we adhere to our earlier ruling that the case is not final except for an accounting because relief other than an accounting for damages remains pending. Creative Compounds’ motion for reconsideration of the dismissal of 2009-1595 is denied.
In 2010-1168, Creative Compounds appeals the district court’s December 29, 2009 order denying Creative Compounds’ request to issue an injunction against itself. Creative Compounds also petitions for a writ of mandamus, challenging the same order, in Misc. 926. Because a petition for writ of mandamus cannot be used to challenge an order which is subject to *106appeal, and because Creative Compounds has appealed the order denying or refusing its request for an injunction pursuant to 28 U.S.C. § 1292, we deny Creative Compounds’ petition for a writ of mandamus. Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367, 381, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (writ of mandamus is not intended to be used as a “substitute for the regular appeals process” and thus a petitioner must show that he has not alternative means of obtaining the relief sought by mandamus).
Accordingly,
IT IS ORDERED THAT:
(1) Creative Compounds’ motion for reconsideration in 2009-1595 is denied.
(2) Creative Compounds’ petition for a writ of mandamus is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478533/ | ON MOTION
PER CURIAM.
ORDER
Donald L. Jones responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely. Jones also moves for other various relief. The Secretary of Veterans Affairs moves to dismiss the appeal as untimely and responds to Jones’s motions.
The Court of Appeals for Veterans Claims entered judgment in this case on September 29, 2009. The docket sheet of the Court of Appeals for Veterans Claims indicates that that court received Jones’s notice of appeal on December 17, 2009, or 79 days after entry of judgment.
Any appeal of the judgment had to be received by the Court of Appeals for Veterans Claims within 60 days of the date of entry of judgment. 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R.App. P. 4(a)(1). Thus, we do not have jurisdiction and this appeal must be dismissed. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement); Sofarelli Assoc., Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
*107(2) All other pending motions are denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478636/ | Unpublished opinions are not binding precedent in this circuit.
Petition denied by unpublished PER CURIAM opinion.
PER CURIAM:
Henry Earl Miller petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motions filed asserting that his conviction is a violation of the Double Jeopardy Clause. He seeks an order from this court directing the district court to act. Our review of the district court’s docket sheets reveals that the district court denied the motions in text *372orders on December 29, 2009. Accordingly, because the district court has recently decided Miller’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. 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/8478524/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss for lack of jurisdiction Milton H. Whitaker’s appeal from a decision of the United States Court of Appeals for Veterans Claims, which determined Whitaker had not submitted “new and material” evidence necessary to reopen his previously denied claim relating to post-traumatic stress disorder (PTSD).
Whitaker served on active duty in the United States Air Force from September 1971 to July 1974. His initial claim for Department of Veterans Affairs (DVA or Department) disability compensation benefits relating to PTSD was denied when Whitaker failed to appeal from a DVA regional office (RO) determination that there was no record of a clear diagnosis of PTSD or evidence verifying that an in-service stressor occurred that could establish a sufficient objective link to Whitaker’s current PTSD condition. In June 2003, Whitaker sought to reopen that previously denied claim, but his request was denied by the RO for failure to submit evidence that was both “new” such that it was not in existence or not submitted to the Department during the processing of the prior claim and “material” such that the additional evidence pertained to the reason the claim was initially denied. See 38 U.S.C. § 5108. The Board of Veterans’ *100Appeals sustained the RO’s determination, and Whitaker appealed from that decision to the Court of Appeals for Veterans Claims.
Whitaker’s attorney proffered only one argument before that court, that the Department had failed to satisfy its notification requirements pursuant to 38 U.S.C. § 5103(a). Specifically, .counsel argued that the Department letters- relied on by the Board to satisfy § 5103(a) failed to inform Whitaker of the basis for the prior denial of his claim and failed to inform him that he needed to provide evidence of a current PTSD diagnosis in order to reopen his claim. The court agreed with Whitaker that the Board’s determination was in error but ultimately concluded that the error was harmless because the record demonstrated that Whitaker had actual knowledge that he needed to submit a diagnosis of PTSD and had knowledge what information and evidence were necessary to substantiate his underlying service-connection claim.
On appeal, Whitaker appears to contend that the Court of Appeals for Veterans Claims incorrectly applied the law as it relates to the Department’s § 5103(a) notice requirements. Whitaker argues that the error was not harmless and he also appears to argue that it was error to use only the diagnosis of one doctor to render a decision and that the Department should have provided him a medical opinion.
The court’s jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain challenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
We agree with the Secretary that this appeal must be dismissed. To the extent Whitaker may be arguing that the Court of Appeals for Veterans Claims did not apply the correct standard in determining the notification obligations, we note that the Court of Appeals for Veterans Claims ruled in Whitaker’s favor and determined that the Department did not comply with the notification obligations, but then held that in the facts of this case the error was harmless. To the extent that Whitaker is arguing that the notice error was not harmless because he did not have actual knowledge that he needed to submit a diagnosis of PTSD to reopen.his claim and receive benefits, the Court of Appeals for Veterans Claims found to the contrary and we are without jurisdiction to review such a factual determination. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007) (court is without jurisdiction to review whether there was harmless error or actual prejudice). Finally, Whitaker’s other arguments raised in his informal brief were not raised below and are not properly before this court on appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478526/ | ON MOTION
ORDER
PER CURIAM.
The Secretary of Veterans Affairs moves to dismiss Dominic Sabbia’s appeal from the United States Court of Appeals for Veterans Claims’ judgment in Sabbia v. Shinseki, 09-697, for lack of jurisdiction.
t On February 24, 2009, Sabbia filed a notice of appeal with the Court of Appeals for Veterans Claims. Sabbia asserted that he was seeking review of a February 19, 2009 Board of Veterans’ Appeals decision. The Court of Appeals for Veterans Claims held that the Board had not issued a February 19, 2009 decision and that therefore it lacked jurisdiction over Sabbia’s appeal. 38 U.S.C. § 7266(a). Although that court had not entered judgment by the date that the court received Sabbia’s notice of appeal seeking review by this court, it treated the document as filed on the date that it entered judgment, i.e., August 11, 2009.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
The issue in this case is whether the Board of Veterans’ Appeals had issued a final decision. That issue is a factual issue beyond this court’s jurisdiction. Thus, this appeal must be dismissed.*
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) Each side shall bear its own costs.
The Secretary asserts that the appeal should be dismissed because the Court of Appeals for Veterans Claims had not entered judgment before Sabbia filed his notice of appeal. As noted above, the Court of Appeals for Veterans Claims treated the notice of appeal as being filed on the date that it entered judgment. In any event, because we dismiss this appeal for lack of jurisdiction on a different ground, we need not address the additional issue raised by the Secretary. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478528/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss Dominic Sabbia’s appeal from an order of the United States Court of Appeals for Veterans Claims denying a petition for a writ of mandamus. In the alternative, the Secretary moves for summary affirmance of that order.
On June 3, 2009, Sabbia filed a petition for a writ of mandamus with the Court of Appeals for Veterans Claims seeking payment based on his assertion that his father had filed a claim in 1981 for total disability based on unemployability. The Court of Appeals for Veterans Claims denied Sab-bia’s petition because there was no evidence that Sabbia’s father had ever filed a disability claim with the Department of Veterans Affairs. This appeal followed.
The Federal Circuit has exclusive jurisdiction to review the validity of a decision of the Court of Appeals for Veterans Claims on a rule of law or of any statute or regulation. See 38 U.S.C. § 7292(a). This rule applies as well when we review the validity of the Court of Appeals for Veterans Claims’ application of the All Writs Act, which provides that the court may issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a); see Lamb v. Principi, 284 F.3d 1378, 1381 (Fed.Cir. 2002). But, absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a law or regulation as applied to the facts of a particular case” when evaluating a denial of writ.” 38 U.S.C. § 7292(d)(2).
The issue in this appeal is whether the evidence indicated that Sabbia’s father had filed a disability claim. That issue is a factual issue beyond this court’s jurisdiction. Thus, this appeal must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) The Secretary’s alternative motion for summary affirmance is denied as moot.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478534/ | ON MOTION
PER CURIAM.
ORDER
Donald L. Jones responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely. Jones also moves for other various relief. The Secretary of Veterans Affairs moves to dismiss the appeal as untimely and responds to Jones’s motions.
The Court of Appeals for Veterans Claims entered judgment in this case on September 29, 2009. The docket sheet of the Court of Appeals for Veterans Claims indicates that that court received Jones’s notice of appeal on December 17, 2009, or 79 days after entry of judgment.
Any appeal of the judgment had to be received by the Court of Appeals for Veterans Claims within 60 days of the date of entry of judgment. 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R.App. P. 4(a)(1). Thus, we do not have jurisdiction and this appeal must be dismissed. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (the timely filing of a notice of appeal in a civil case is a jurisdictional requirement); Sofarelli Assoc., Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
*107(2) All other pending motions are denied.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478637/ | Unpublished opinions are not binding precedent in this circuit.
Petition denied by unpublished PER CURIAM opinion.
PER CURIAM:
Henry Earl Miller petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his motions filed asserting that his conviction is a violation of the Double Jeopardy Clause. He seeks an order from this court directing the district court to act. Our review of the district court’s docket sheets reveals that the district court denied the motions in text *372orders on December 29, 2009. Accordingly, because the district court has recently decided Miller’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. 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/8478716/ | STAPLETON, Circuit Judge,
dissenting:
While I agree with initially all that is said by the Court, I nevertheless conclude that summary judgment for MVM was appropriate.
We explained the law that is controlling here in Wilson v. MVM, Inc., 475 F.3d 166, 179 (3d Cir.2007) (brackets in original), a case with indistinguishable facts:
*272In order to prevail on a claim under the ADA, a claimant must prove that he is disabled within the meaning of the statute, proving that he has a physical impairment that limits a major life activity, has a record of such an impairment, or is “regarded as” having such an impairment. 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20)(B). The. appellants cannot prove that their impairments are not mitigated by corrective measures, thus barring a claim that they have impairments that limit a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 487, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Therefore, they can only prevail if they show that MVM “regarded” them as being impaired. To meet this standard, MVM must have “mistakenly believed that [the appellants] have a physical impairment that substantially limits one or more major life activities” or “mistakenly believed that an actual non-limiting impairment substantially limits one or more major life activities.” Id. at 489, 119 S.Ct. 2139. It is insufficient for the appellants to show that MVM thought they were, in some way, impaired. Rather, the appellants must show that MVM thought they were disabled “within the meaning of the statute.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir.2002).
In Wilson, we concluded that the undisputed evidence showed that MVM believed only that the claimants did not meet the requirements established by the Judicial Conference for service as a CSO. There was no evidence that they were regarded as having an impairment which “substantially limits one or more major life activities.” Id. Summary judgment for MVM was accordingly appropriate. As the Supreme Court emphasized in Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), a claimant must show that her employer regards her as substantially limited in a major life activity and not just unable to meet the requirements of a particular job.
Like the claimants in Wilson, Fromm does not claim to be actually disabled. His sole claim is that he was “regarded as” disabled. More specifically, in response to the following interrogatory, he gave the following answer:
Interrogatory 8
Identify what activity or activities you believe MVM erroneously regarded your hearing loss as limiting.
Response
Plaintiffs ability to perform the CSO responsibilities and duties.
App. at 350, 359.
MVM does not here dispute that it regards Fromm as unable to meet the requirements established by the Judicial Conference for service as a CSO, and the Court correctly concludes, as dictated by Wilson, that as a “matter of law, MVM did not regard [Fromm] as impaired within the meaning of the ADA.” Wilson, 475 F.3d at 179.
After so concluding, the Court finds that this does not end the matter because Fromm, in his reply brief, suggests that the contractual relationship between MVM and the Marshals Service “has the effect of subjecting a[n] ... employee with a disability [i.e., Fromm] to the discrimination prohibited by” the ADA in violation of 42 U.S.C. § 12112(b)(2). Reply Br. at 3. The problem with this newly conceived argument is, of course, that Fromm has tendered no evidence that either of the appel-lees regarded him as disabled within the meaning of the ADA. The undisputed evidence shows that the Marshals Service, like MVM, believed only that Fromm could not meet the requirements established by the Judicial Conference for service as a CSO. As with MVM, there is no evidence that the Marshals Service regarded *273Fromm as having any impairment which “substantially limits one or more major life activities.” Accordingly, § 12112(b)(2) does not alter the propriety of the summary judgment in favor of MVM.
Fromm appears to assume that the Medical Review Forms of the Marshals Service raise a genuine issue of material fact as to whether it believed he was substantially limited in a major life activity. Standing alone, however, Fromm’s failure to meet the Marshals Service hearing standards does not raise a genuine issue of material fact as to whether the Marshals Service regarded that impairment as substantially limiting him in one or more major life activities. The Court of Appeals for the Ninth Circuit so held in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir.2007), a case indistinguishable from Fromm’s and involving the same Judicial Conference requirements for CSO service.
In short, the Court today holds based on Wilson that, as a matter of law, MVM did not regard Fromm as impaired within the meaning of the ADA.1 It nevertheless remands so that the District Court can consider whether the Marshals Service so regarded him. However, since the information available to the Marshals Service regarding Fromm’s hearing was precisely the same as the information available to MVM, it necessarily follows from the Court’s holding that the Marshals Service could not have regarded him as disabled within the meaning of the ADA. For that reason, I would affirm rather than remand for further proceedings.
. Fromm’s briefing does not purport to distinguish Wilson. Rather, he "respectfully submits that the Wilson panel erred in its inter-prelation of the ADA.” Reply Br. at 3. Our panel cannot overrule Wilson. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478535/ | ORDER
PER CURIAM.
The court treats Dom Wadhwa’s correspondence concerning the timeliness of his petition for review as a motion for reconsideration of the court’s previous rejection of his petition for review as untimely.
On October 30, 2009, the Merit Systems Protection Board issued a final decision in Wadhwa v. Department of Veterans Affairs, No. PH-1221-09-0295-W-1, 112 M.S.P.R. 658, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The court received Wadhwa’s petition for review on January 4, 2010.
The Board’s records reflect that Wadh-wa was registered as an e-filer. Pursuant to the Board’s regulations, an e-filer is deemed to receive a decision on the date it is served via electronic mail. See 5 CFR § 1201.14(m)(2) (“MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission”). Thus, Wadhwa is deemed to have received the Board’s decision on October 30, 2009. Wadhwa’s petition for review seeking review of the Board’s decision was received by the court 66 days later, on January 4, 2010.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[compliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Wadhwa states that his petition “was timely filed, [but] a delay occurred because it was sent to a central location by the United States Postal Service for processing prior to delivery to this Honorable Court.” However, in order to be timely, a petition for review must be received by the court, not simply placed in the mail system, within the filing deadline. See Fed. R.App. P. 25(a)(2)(A) (“filing is not timely unless the clerk receives the papers within the time fixed for filing.”) Because Wadh-*108wa’s petition for review was received on January 4, six days late, this court must dismiss Wadhwa’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478541/ | ORDER
Wounded Warriors Family Support, Inc. responds to the court’s order directing it to show cause why this appeal should not be transferred and moves without opposition to transfer this appeal to the United States Court of Appeals for the Eighth Circuit.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal is transferred to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478543/ | ON MOTION
ORDER
The parties move to voluntarily dismiss these appeals.
On December 16, 2008, this court stayed briefing pursuant to 11 U.S.C. § 362 due to Jennifer Long’s pending bankruptcy petition. Long informs the court that the United States Bankruptcy Court for the Central District of California has dismissed the bankruptcy case.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. .The stay is lifted, the appeals are reactivated, and the appeals are dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478545/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478547/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478549/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478551/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478553/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478555/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478557/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478559/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478718/ | STAPLETON, Circuit Judge,
dissenting:
While I agree with initially all that is said by the Court, I nevertheless conclude that summary judgment for MVM was appropriate.
We explained the law that is controlling here in Wilson v. MVM, Inc., 475 F.3d 166, 179 (3d Cir.2007) (brackets in original), a case with indistinguishable facts:
*272In order to prevail on a claim under the ADA, a claimant must prove that he is disabled within the meaning of the statute, proving that he has a physical impairment that limits a major life activity, has a record of such an impairment, or is “regarded as” having such an impairment. 42 U.S.C. § 12102(2); 29 U.S.C. § 705(20)(B). The. appellants cannot prove that their impairments are not mitigated by corrective measures, thus barring a claim that they have impairments that limit a major life activity. Sutton v. United Air Lines, Inc., 527 U.S. 471, 487, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Therefore, they can only prevail if they show that MVM “regarded” them as being impaired. To meet this standard, MVM must have “mistakenly believed that [the appellants] have a physical impairment that substantially limits one or more major life activities” or “mistakenly believed that an actual non-limiting impairment substantially limits one or more major life activities.” Id. at 489, 119 S.Ct. 2139. It is insufficient for the appellants to show that MVM thought they were, in some way, impaired. Rather, the appellants must show that MVM thought they were disabled “within the meaning of the statute.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir.2002).
In Wilson, we concluded that the undisputed evidence showed that MVM believed only that the claimants did not meet the requirements established by the Judicial Conference for service as a CSO. There was no evidence that they were regarded as having an impairment which “substantially limits one or more major life activities.” Id. Summary judgment for MVM was accordingly appropriate. As the Supreme Court emphasized in Murphy v. United Parcel Service, Inc., 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), a claimant must show that her employer regards her as substantially limited in a major life activity and not just unable to meet the requirements of a particular job.
Like the claimants in Wilson, Fromm does not claim to be actually disabled. His sole claim is that he was “regarded as” disabled. More specifically, in response to the following interrogatory, he gave the following answer:
Interrogatory 8
Identify what activity or activities you believe MVM erroneously regarded your hearing loss as limiting.
Response
Plaintiffs ability to perform the CSO responsibilities and duties.
App. at 350, 359.
MVM does not here dispute that it regards Fromm as unable to meet the requirements established by the Judicial Conference for service as a CSO, and the Court correctly concludes, as dictated by Wilson, that as a “matter of law, MVM did not regard [Fromm] as impaired within the meaning of the ADA.” Wilson, 475 F.3d at 179.
After so concluding, the Court finds that this does not end the matter because Fromm, in his reply brief, suggests that the contractual relationship between MVM and the Marshals Service “has the effect of subjecting a[n] ... employee with a disability [i.e., Fromm] to the discrimination prohibited by” the ADA in violation of 42 U.S.C. § 12112(b)(2). Reply Br. at 3. The problem with this newly conceived argument is, of course, that Fromm has tendered no evidence that either of the appel-lees regarded him as disabled within the meaning of the ADA. The undisputed evidence shows that the Marshals Service, like MVM, believed only that Fromm could not meet the requirements established by the Judicial Conference for service as a CSO. As with MVM, there is no evidence that the Marshals Service regarded *273Fromm as having any impairment which “substantially limits one or more major life activities.” Accordingly, § 12112(b)(2) does not alter the propriety of the summary judgment in favor of MVM.
Fromm appears to assume that the Medical Review Forms of the Marshals Service raise a genuine issue of material fact as to whether it believed he was substantially limited in a major life activity. Standing alone, however, Fromm’s failure to meet the Marshals Service hearing standards does not raise a genuine issue of material fact as to whether the Marshals Service regarded that impairment as substantially limiting him in one or more major life activities. The Court of Appeals for the Ninth Circuit so held in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir.2007), a case indistinguishable from Fromm’s and involving the same Judicial Conference requirements for CSO service.
In short, the Court today holds based on Wilson that, as a matter of law, MVM did not regard Fromm as impaired within the meaning of the ADA.1 It nevertheless remands so that the District Court can consider whether the Marshals Service so regarded him. However, since the information available to the Marshals Service regarding Fromm’s hearing was precisely the same as the information available to MVM, it necessarily follows from the Court’s holding that the Marshals Service could not have regarded him as disabled within the meaning of the ADA. For that reason, I would affirm rather than remand for further proceedings.
. Fromm’s briefing does not purport to distinguish Wilson. Rather, he "respectfully submits that the Wilson panel erred in its inter-prelation of the ADA.” Reply Br. at 3. Our panel cannot overrule Wilson. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478720/ | OPINION
BARRY, Circuit Judge.
Franck Dakaud seeks review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. We will grant his petition for review, vacate the BIA’s decision, and remand for further proceedings.
I.
Dakaud, a citizen of the Ivory Coast, entered the United States in June 1993 on a visitor visa that expired in September 1993. He married his first wife, Tracy Gibbs, in August 1999, and Gibbs filed a Form 1-130 (Petition for Alien Relative) on Dakaud’s behalf. Gibbs later withdrew this petition, and the couple divorced in October 2001. Dakaud was ordered to appear for removal proceedings in April 2002. An Immigration Judge (“IJ”) held a hearing in September 2002, at which Da-kaud conceded removability. The IJ continued the proceedings, however, in part because Dakaud discussed the possibility of remarrying. Another hearing was held in May 2003, and Dakaud notified the IJ that he and Gibbs had again married, and that Gibbs had filed a new 1-130, which was pending. After a hearing scheduled in November 2003 was continued because the 1-130 had not yet been adjudicated, the IJ held another hearing in September 2004, at which Dakaud informed the IJ that the 1-130 had been denied for failure to properly respond to a request for evidence, and that he had appealed this decision. The IJ again continued the removal proceedings. At a May 2005 hearing, Dakaud told the IJ that he was still married, but had neither seen nor spoken to his wife in several months. The IJ stated that if another I-130 had not been filed or if Dakaud’s appeal of the denied 1-130 had not been decided by the next hearing, he would order Dakaud to leave the United States. At the final hearing in April 2006, Dakaud stated that he was in the process of again divorcing Gibbs, and planned to marry his girlfriend, Deidra Jenkins. The IJ denied Dakaud’s request for another continuance and entered an order of removal. Dakaud appealed the removal order to the BIA, which affirmed in September 2007. Da-kaud sought review in this Court, but later withdrew the petition.
Dakaud married Jenkins in November 2007. Jenkins filed a new 1-130 on Da-kaud’s behalf, and Dakaud filed a motion to reopen his case before the BIA. The Department of Homeland Security (“DHS”) opposed the motion on two grounds: (1) Dakaud had not disclosed in his motion the petition for review he had filed in this Court, as required by regulation; and (2) Dakaud failed to submit evidence relating to the bona fide nature of his marriage to Gibbs, which the DHS argued was relevant to the consideration of his marriage to Jenkins. See 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if ... the alien has previously ... sought to be accorded[ ] an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws.”).
*275The BIA denied the motion to reopen in March 2008, stating that because it was opposed by the DHS, it “must be denied.” (A.R. 2.) The BIA did not consider the DHS’s first reason for opposing the motion to be “a proper ground for a DHS objection” because the DHS had notice of the petition for review filed in this Court, and it denied the motion “[bjased on the second DHS objection.” (Id.) Dakaud timely filed this petition for review.1
II.
In denying Dakaud’s motion, the BIA relied on its decision in Matter of Velarde-Pacheco, which provides that a motion to reopen removal proceedings for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted, in the exercise of discretion, when:
(1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the [DHS] either does not oppose the motion or bases its opposition solely on Matter of Arthur, [20 I. & N. Dec. 475 (BIA 1992) ].
23 I. & N. Dec. 253, 256 (BIA 2002). The BIA denied Dakaud’s motion on the basis of the fifth factor. Although Velarde-Pacheco suggests that the DHS’s opposition to the motion is dispositive, see Bhiski v. Ashcroft, 373 F.3d 363, 370-72 (3d Cir.2004), the BIA recently “clarifi[ed] or ... modified]” Velar de-Pacheco, leaving no doubt that the fifth factor “does not grant the DHS ‘veto’ power over an otherwise approvable Velarde motion,” Matter of Lamus-Pava, 25 I. & N. Dec. 61, 64-65 (BIA 2009). The BIA explained:
We are not persuaded that the mere fact of a DHS opposition to a motion, in and of itself, should be dispositive of the motion without regard to the merit of that opposition. The DHS’s arguments advanced in opposition to a motion should be considered in adjudicating a motion, but they should not preclude the Immigration Judge or the Board from exercising “independent judgment and discretion” in ruling on the motion. 8 C.F.R. § 1003.1(d)(l)(ii); see also 8 C.F.R. § 1003.10(b) (2009) (“In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion .... ”). If the DHS’s arguments are persuasive, they should prevail. If they are not, an otherwise approvable motion should not be denied simply based on the fact that an unpersuasive argument was advanced by the Government.
Lamus-Pava, 25 I. & N. Dec. at 65.
Here, the BIA apparently believed that because the DHS opposed Dakaud’s motion, it was required to deny it. It is clear, after Lamus-Pava, that this is not the case. Accordingly, remand is appropriate to permit the BIA to consider Dakaud’s motion to reopen in light of Lamus-Pava.
III.
We will vacate the BIA’s decision and remand for further proceedings.
. We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s denial of Dakaud’s motion to reopen for abuse of discretion, and will disturb its decision only if it is arbitrary, irrational, or contrary to law. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478723/ | OPINION
PER CURIAM.
Cesar Augusto Cardona Toro (“Cardo-na”) petitions for review of a decision by the Board of Immigration Appeals (“BIA”) rendered on December 8, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Cardona is a native and citizen of Colombia. He entered the United States in October 2002 and overstayed his visa. He was served with a Notice to Appear. In August 2006, he conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past persecution and fears future persecution and torture in Colombia on account of his political opinion.
At his hearing before the Immigration Judge (“IJ”), Cardona testified to the following: Cardona was an artist and art teacher in Colombia. In March 1999, he displayed three paintings that were critical of Colombia’s revolutionary Armed Forces of Colombia (“FARC”). A group of six *281men associated with the FARC entered the art school, damaged the paintings, and threatened Cardona with a gun, stating that if Cardona continued making such paintings, he “was going to die in the gutter” and they “would put a bomb in the [art] school.” A.R. 135-36
The men returned several times and demanded payment of a “fíne.” Although he could have afforded it, Cardona refused to pay. During the last visit, one of the men hit Cardona twice on the head with a gun and threw him to the ground. Shortly thereafter, Cardona left the art school and fled to his parent’s home in another city.1 Cardona became depressed. He went into hiding for nearly three years and eventually fled to the United States in October 2002.
The IJ found that Cardona was not a credible witness because his first asylum application omitted key details of his story, see A.R. 297-98, and because a report from Cardona’s psychiatrist did not mention any fear of the FARC, see A.R. 215. The IJ also concluded that even if Cardona had been credible, the events he described did not rise to the level of persecution. In addition, the IJ concluded it was unlikely that the FARC was still interested in Car-dona because years had passed since the alleged acts of persecution. Accordingly, the IJ denied relief.
Cardona appealed.2 The BIA concluded, inter alia, that the IJ’s adverse credibility findings were not clearly erroneous. In addition, the BIA affirmed the conclusion that, even if he had been credible, Cardona failed to demonstrate past harm rising to the level of persecution or a well-founded fear of future persecution. Although Cardona attempted to present new evidence of country conditions in Colombia, the BIA declined to consider the new evidence and also declined to remand the proceedings to the IJ for further consideration. The BIA dismissed the appeal.
This timely counseled petition for review followed.
II. Analysis
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, where the BIA adopts the IJ’s reasoning and discusses the bases of the IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Cardona to succeed on his petition for review, this Court “must find that the evidence not only suppovts that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original).
*282To qualify for asylum, Cardona was required to establish that he is “unable or unwilling to return to [Colombia] ... 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.”3 INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]; INA § 208 [8 U.S.C. § 1158], Here, the IJ denied relief on two independent grounds: (1) that Cardona was not a credible witness; and (2) even if credible, Cardona did not establish past persecution or a well-founded fear of future persecution. The BIA affirmed both conclusions. Because it is dispositive of the petition for review, we will limit our primary discussion to the holding that Car-dona failed to establish past persecution or a well-founded fear of future persecution.4
A.
Persecution encompasses “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). The most egregious acts of alleged persecution to which Cardona testified were the FARC’s death threats against him, which were made at gunpoint.
While such threats are abhorrent, they are not necessarily persecution. We have held that not all forms of unfair, unjust, or even unlawful treatment qualify as persecution. Id. Indeed, unfulfilled threats constitute persecution in only a very narrow set of circumstances. In order to qualify, the threats must be of a highly imminent and menacing nature. Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005). Even if made at gunpoint, not all death threats are sufficiently imminent and menacing. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 342 (3d Cir.2008) (incidents in which applicant was “rounded up ... at gunpoint,” without physical injury or robbery, were oblique and not imminent and did not constitute persecution).
*283Here, the record reflects that Cardona did not suffer any serious physical injury and the FARC members never made any real attempt to follow through with their threats. See A.R. 156-57 (Hrg. Tr. at 35-36) (testifying that, although Cardona did not pay the “fíne,” the FARC never put a bomb in his art school as threatened). Generally, situations involving threats with little or no accompanying physical harm do not rise to the level of persecution. See Gomez-Zuluaga, 527 F.3d at 342; cf. Chavarria v. Gonzalez, 446 F.3d 508, 518-20 (3d Cir.2006) (incident in which applicant was robbed at gunpoint and threatened with death was sufficiently concrete and menacing to constitute persecution).
We are given some pause because, in addition to the death threats, Cardona testified that the FARC members hit him with a gun and demanded a “fine.” These additional incidents, of themselves, are not sufficiently extreme to qualify as persecution. See Fatin, 12 F.3d at 1240. However, when considered together, these incidents at least arguably increase the sense of imminence of the danger that Cardona faced when the FARC members brandished guns and threatened his life.
On balance, we cannot conclude that these events compel the conclusion that Cardona experienced harm rising to the level of persecution. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812; Gomez-Zuluaga, 527 F.3d at 342 (threats coupled with relatively brief detentions at gunpoint are not past persecution); Li, 400 F.3d at 165-70 (3d Cir.2005) (threats coupled with actual economic hardship are not past persecution). While the FARC’s actions are reprehensible, we cannot say that they necessarily fall within the “small category of cases” where the threats “are so menacing as to cause significant actual suffering or harm.” Id. at 164. Accordingly, we conclude that the finding that Cardona did not experience harm rising to the level of past persecution rests upon substantial evidence.
B.
Because Cardona did not establish past persecution, he was not entitled to a rebuttable presumption that his “life or freedom would be threatened in the future....” 8 C.F.R. § 1208.16(b)(l)(i). Cardona therefore was required to demonstrate that he “has a genuine fear, and that a reasonable person in [his] circumstances would fear persecution if returned to [his] native country.” Ahdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
Although the FARC’s threats against Cardona do not constitute past persecution, they are nevertheless relevant to whether Cardona has an objectively reasonable fear of future persecution. Li, 400 F.3d at 165 n. 3 (unfulfilled threats may be indicative of a danger of future persecution). Even considering the threats, however, there is substantial record evidence supporting the conclusion that a reasonable person in Cardona’s circumstances would not fear future persecution in Colombia.5
*284According to Cardona, the FARC will continue to pursue him based exclusively upon the events of the Spring of 1999, when he “defied them with my paintings and by not giving them the money.” A.R. 144 (Hrg. Tr. at 23). The IJ doubted the reasonableness of this fear because this isolated incident took place so many years ago: “[t]he respondent has never had any political involvement that we are aware of prior to these two or three paintings that he painted, or since the two or three paintings.” See A.R. 97 (IJ Decision at 11). We agree. The record is devoid of evidence that Cardona continues to be involved in any remotely political activity of concern to the FARC. Indeed, Cardona himself testified that “if [the FARC] did not see any more paintings like this, my life would be safe.” A.R. 149 (Hrg. Tr. at 28). He then went on to concede that “I stopped making those paintings” after the 1999 incident. See id. Particularly in light of this testimony, we see nothing in the record to demonstrate that the FARC would have any continued interest in pursing Cardona.
In addition, the IJ found that the reasonableness of Cardona’s fear was undercut by his testimony that he had not experienced any trouble with the FARC during the three years he lived in Colombia prior to departing for the United States. Although Cardona claimed to have been “hiding” during those years, he testified that he was living at his parents’ home.6 A.R. 147 (Hrg. Tr. at 26). He acknowledged that the FARC never looked for him at his parents’ home and “they did not know that my family lived there.” A.R. 148 (Hrg. Tr. at 27). Such testimony casts serious doubt upon Cardona’s testimony that he cannot live safely anywhere in Colombia because the FARC’s “computer system” will be able to track and find him no matter where he lives. See A.R. 162 (Hrg. Tr. at 41).
Cardona argues that the IJ and BIA erred in denying his future persecution claim because they “ignored” a 2006 State Department Report, which demonstrates that his fear of the FARC is objectively reasonable. We disagree. Even if the IJ or BIA arguably erred by failing to discuss the report in detail, the error was harmless. Reviewing the record as a whole, Cardona failed to establish the objective reasonableness of his fear that he would be individually singled out for future persecution by the FARC. There is nothing in the State Department Report compelling a contrary conclusion.
C.
Cardona has moved to expand the record to include the 2008 State Department Report on Country Conditions and Human Rights Practices for Colombia. The BIA did not consider this report and it does not appear in the administrative record. Accordingly, we may not consider it. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A) ]; Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed *285record.”)- While we have specifically-called upon the BIA to consider current country information where possible so that we may avoid review of administrative records “so out-of-date as to verge on meaningless,” we have not adopted the approach of considering reports if they were not considered by the BIA in the first instance. See Berishaj, 378 F.3d at 331. Cardona’s motion is therefore denied.
III. Conclusion
In sum, we conclude that substantial evidence supports the denial of Cardona’s asylum application. In addition, because “[t]he standard for withholding of removal is higher than, albeit similar to, the standard for asylum.... If [Cardona] is unable to satisfy the standard for asylum, he necessarily fails to meet the standard for withholding of removal.... ” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003).
For all of the foregoing reasons, we will deny the petition for review.
. Cardona also testified that, in November 1999, he was invited to paint a portrait for a church in another town. At the unveiling, Cardona heard shots and saw a man from tire FARC. Although someone was killed in the church shooting, Cardona was unharmed. The IJ found that Cardona failed to demonstrate that this incident was directed at him. Cardona has not offered anything to demonstrate that the finding is clearly erroneous.
. Cardona did not appeal the IJ’s denial of his CAT claim to the BIA and he has not raised the issue in his petition for review. Accordingly, we conclude he has abandoned it.
. To qualify for withholding of removal, Car-dona was required to establish that his “life or freedom would be threatened” on the basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)]. "To meet this test, the alien must demonstrate that there is a greater-than-fifty-percent chance of persecution upon his or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998).
. The IJ based his adverse credibility determination on certain differences between Cardona's initial asylum application and his amended application. See A.R. 285-98 (initial application); A.R. 264-84 (amended application). The I.J. noted that the initial application omitted significant details that appeared in the amended application. A.R. 98-99. These "inconsistencies” served as the primary basis of the I.J.’s adverse credibility determination. A.R. 99. However, the I.J.'s analysis downplayed a material difference between the two applications. Cardona is a non-English speaker. While his initial application was prepared with the help of his relatives, his amended application was prepared with the assistance of counsel. Although the IJ. recognized that "an individual can certainly do a better job with an attorney ... than without an attorney,” he did not adequately address the quality of the assistance that Cardona actually received from his relatives. A.R. 98. Indeed, on its face, Cardona's initial application is riddled with grammatical errors that call into question the quality of this assistance. See e.g., A.R. 291, 297-98. Given this, we conclude that the alleged "inconsistencies” in Cardona’s successive applications, by themselves, do not support an adverse credibility determination. See Cao v. Att’y Gen., 407 F.3d 146, 160 (3d Cir.2005) (" ‘[A]n applicant's testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application.’ ") (quoting Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996)). Therefore, we reverse the I.J.'s adverse credibility determination as unsupported by substantial evidence.
. Because we have accepted Cardona’s credibility for purposes of our analysis, we also accept that he established a subjective fear of future persecution. See Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir.2004) (“A primary means of showing that fear is genuine is with credible testimony.”). We therefore focus only on the requirement that Cardona had to establish an objectively reasonable fear of future persecution. To prevail, Cardona was required to show either that he would be individually singled out for persecution, or that "there is a pattern or practice ... of persecution of a group of persons similarly situated...." 8 C.F.R. § 208.13(b)(2)(iii)(A). Because Cardona never argued that there is a "pattern or practice” of persecution of similarly-situated individuals in Colombia, we consider only his individualized claim.
. Cardona contends that his three years “in hiding” do not undermine his claim because the law “does not demand that a person become a hermit.” Cardona is correct that, under certain circumstances, a need to go into hiding may support a persecution claim. See Toure v. Att’y Gen., 443 F.3d 310, 319 (3d Cir.2006). However, where going "into hiding” merely means relocation to another part of the country to avoid persecution, this may undermine the asylum claim. Id. at 319 n. 3. Here, Cardona testified that he relocated to his parents' home and the FARC never made any attempt to find him there. See A.R. 147-48 (Hrg. Tr. at 26-27). There is nothing to support his claim that he was required to become a “hermit." Based upon the record, we conclude that Cardona’s move to his parents' home is appropriately viewed as a relocation. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478725/ | *286OPINION
PER CURIAM.
Pro se appellant Richard Snyder appeals from the order of the United States District Court for the District of Delaware dismissing his complaint. We will affirm.
On November 24, 2008, Snyder filed his complaint in District Court, naming as defendants Carolyn Swanson, personal representative of the estate of George Swanson; Carolyn Swanson; and Robert Swanson. According to the allegations, the matter stems from a frustrated real estate contract, and Snyder has a history of litigation with the defendants in state and federal courts. Snyder sought to have prior state and federal court rulings vacated so that he could proceed on his claims in federal court, and he requested a jury trial. Summons was issued to attorney Walter W. Green, a non-party, and was returned as executed. On March 80, 2009, the District Court ordered Snyder to show cause why the case should not be dismissed for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure. Snyder filed a response, contending, among other things, that Green and his limited liability company have represented the defendants in other matters relating to his case. Attached to Snyder’s response was a letter from Green dated March 19, 2009, informing Snyder that at no time did he agree to accept service on Carolyn Swanson’s behalf and that the process server did not personally serve Green but instead served a secretary in his office. Nevertheless, Snyder argued that service was proper on Green as the defendants’ agent. Alternatively, Snyder requested limited discovery to establish the facts contained in his process server’s affidavit, or, an additional sixty days to complete service on the defendants’ attorneys.
On June 11, 2009, the District Court rejected Snyder’s contentions and determined that Snyder had not served the defendants properly under Rule 4. Further, the District Court found that Snyder had made no attempts to effect proper service upon receiving Green’s letter or upon receiving the order to show cause. Thus, the District Court concluded that Snyder had not demonstrated good cause for his failure to serve his complaint on the defendants and dismissed the case under Rule 4(m). Snyder filed a timely motion for reconsideration, which the District Court denied by order entered June 30, 2009.
Snyder appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We review the District Court’s order for abuse of discretion. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1308 (3d Cir.1995). Under Rule 4(m), the District Court must first determine whether good cause exists for failure to serve. Id. at 1305. If good cause exists, the District Court must extend the time for service. Id. If good cause does not exist, the District Court has discretion either to dismiss the complaint without prejudice or to extend the time for service. Id.
We agree with the District Court that Snyder has not shown good cause for his failure to serve. Snyder’s main argument is that he properly served the defendants by serving Green, contending that *287Green was authorized to accept service as the defendants’ agent under Rule 4(e). Snyder bases his assertion on Green’s having acted as counsel in prior litigation. There is no showing that Green was expressly “authorized by appointment or by law” as Rule 4(e) contemplates. Rather, Snyder argues that Green’s authority to accept service is implied. We do not credit this argument of implied authority when the record shows that Green himself expressly and unambiguously informed Snyder that he did not agree to accept service. Moreover, from the documents Snyder submitted in support of his response to the District Court’s show cause order, as well as statements made in Snyder’s brief, it is uncontested that the process server did not personally serve Green and instead served a secretary present in Green’s office. Snyder’s arguments regarding the propriety of service delivered to a secretary in Green’s office fares no better. Snyder argued in his response to the show cause order that the process server’s handing the summons and complaint to Green via the secretary — an employee of Green’s, or of Daniels & Green, L.L.C. — constitutes proper service on both Green and the limited liability company of which Green is a member. However, Snyder is not suing Green or the L.L.C.; he is suing the defendants named in the complaint. Thus, it is irrelevant whether service could be deemed proper as to Green or the company. We are unpersuaded by Snyder’s reliance on this set of facts.
For similar reasons, the District Coui't did not abuse its discretion in dismissing the complaint rather than extending the time for service. See MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir.1995). As the District Court noted, although Snyder is proceeding pro se, by his own account, he is an experienced litigant. Further, the District Court duly considered that Snyder made no attempt to serve the defendants properly after receiving Green’s letter or after receiving the show cause order. Snyder argues that the District Court failed to consider his request to extend the time for effecting service. In fact, the District Court recognized Snyder’s request for additional time. (See June 3, 2009 Mem. Order at 2.) Moreover, in his response to the show cause order, Snyder emphatically argued that service already was accomplished properly. In seeking an extension of time to comply with Rule 4, Snyder stated his intent “to again serve these attorneys who always have, and continue to, represent defendants.” (Response to Show Cause Order at 6.) Given that Snyder’s request to extend the time to serve the complaint actually evidenced his refusal to effect service on the defendants and his continued pursuit to serve Green, we view dismissing the complaint as an appropriate exercise of the District Court’s discretion.2 We also discern no error in the District Court’s denial of Snyder’s motion for reconsideration.
We will affirm the District Court’s judgment.
. It appears from Snyder’s complaint that his lawsuit is based on an underlying real estate deal that is the subject of a lawsuit he filed against the defendants in Maryland state court in 2002. Because it also appears that the statute of limitations on his claims has run, we conclude that the District Court's dismissal without prejudice is a final decision. See Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.2002) (holding that an order dismissing a claim without prejudice is a final ap-pealable order if the statute of limitations for that claim has expired). See also Md.Code § 5-101.
. That Snyder's claim may be time-barred, see supra note 1, does not alter our analysis. The expiration of the statute of limitations does not require a district court to extend the time for service; the court has discretion to dismiss the case even if the refiling of the action is time-barred. See MCI Telecommunications Corp., 71 F.3d at 1098 (citing Petrucelli, 46 F.3d at 1306). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478727/ | OPINION
PER CURIAM.
Edward Coleman, proceeding pro se, appeals the order of the District Court denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). For the following reasons, we will affirm.
I.
In 2004, Coleman was indicted in the United States District Court for the Eastern District of Pennsylvania on two counts of possession of a firearm by a convicted felon and three counts of possession of a controlled substance. The indictment stemmed from two unrelated arrests on June 13, 2003 and September 26, 2003. A jury found him guilty of the three counts resulting from the June 13 arrest; he later pled guilty to the remaining two counts. At sentencing, the base offense level for the firearm count was used, as it was higher than that for the drug count. Because Coleman had a least two prior convictions for drug or violent felonies, the base offense level was 24. His status as an armed career offender increased the level to 33. The District Court sentenced him to 240 months of imprisonment, near the low end of the 235-to-293-month range. We affirmed Coleman’s conviction and sentence. United States v. Coleman, 451 F.3d 154 (3d Cir.2006), cert. denied, 549 U.S. 1137, 127 S.Ct. 991, 166 L.Ed.2d 748 (2007).
Coleman filed a pro se motion under 28 U.S.C. § 2255 in November 2007. The *289District Court denied that motion in January 2009 and we denied his request for a certificate of appealability (“COA”) in October 2009. In May 2009, while his request for a COA was pending, Coleman filed a “Motion to Modify an Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1)(B) ... predicated upon modifying statute 28 U.S.C. § 2255.” After giving Coleman notice pursuant to United States v. Miller, 197 F.3d 644 (3d Cir.1999), the District Court denied the motion in June 2009. Coleman timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s determination that a defendant is ineligible for a sentence reduction pursuant to § 3582(c). See United States v. Sanchez, 562 F.3d 275, 277 & n. 4 (3d Cir.2009).
III.
Coleman argues that the District Court erred in denying his motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). That section states that “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Coleman contends that 28 U.S.C. § 2255 is the modifying statute that would authorize this Court to reduce his sentence.
Coleman claims that the sentencing court erred in classifying him as an armed career offender. He argues that his prior convictions do not qualify as “serious drug offenses” under 18 U.S.C. § 924(e)(2)(A)(ii)1 because they were for relatively small quantities of narcotics. Nevertheless, the record shows that his prior convictions did qualify as “serious drug offenses,” given that possession with the intent to distribute or deliver cocaine carries a ten-year maximum sentence. 35 Pa. Stat. § 780-113(0(1.1).
The purpose of Coleman’s invocation of § 2255 is unclear. To the extent he is seeking to overturn the conviction on which his career criminal status is predicated, § 3582 is not the appropriate vehicle to do so. Because he has already challenged his present conviction and sentence via § 2255, he may not do so again without first obtaining authorization from us. See §§ 2244, 2255.
VI.
For the foregoing reasons, we will affirm the District Court’s judgment.
. Under § 924(e)(2)(A)(ii), a "serious drug offense’’ is one that carries "a maximum term of imprisonment of ten years or more." | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478536/ | ORDER
PER CURIAM.
The court treats Dom Wadhwa’s correspondence concerning the timeliness of his petition for review as a motion for reconsideration of the court’s previous rejection of his petition for review as untimely.
On October 30, 2009, the Merit Systems Protection Board issued a final decision in Wadhwa v. Department of Veterans Affairs, No. PH-1221-09-0295-W-1, 112 M.S.P.R. 658, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The court received Wadhwa’s petition for review on January 4, 2010.
The Board’s records reflect that Wadh-wa was registered as an e-filer. Pursuant to the Board’s regulations, an e-filer is deemed to receive a decision on the date it is served via electronic mail. See 5 CFR § 1201.14(m)(2) (“MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission”). Thus, Wadhwa is deemed to have received the Board’s decision on October 30, 2009. Wadhwa’s petition for review seeking review of the Board’s decision was received by the court 66 days later, on January 4, 2010.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[compliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Wadhwa states that his petition “was timely filed, [but] a delay occurred because it was sent to a central location by the United States Postal Service for processing prior to delivery to this Honorable Court.” However, in order to be timely, a petition for review must be received by the court, not simply placed in the mail system, within the filing deadline. See Fed. R.App. P. 25(a)(2)(A) (“filing is not timely unless the clerk receives the papers within the time fixed for filing.”) Because Wadh-*108wa’s petition for review was received on January 4, six days late, this court must dismiss Wadhwa’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478538/ | ON MOTION
ORDER
Harold D. Savitz moves without opposition to voluntarily dismiss his appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. All other pending motions are moot.
(2) Each side shall bear their own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478540/ | *109ON MOTION
ORDER
Security Door Controls, Inc. moves without opposition to voluntarily dismiss its appeal, 2010-1114.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. Appeal 2010-1114 is dismissed.
(2) Each side shall bear its own costs related to 2010-1114.
(3) The revised official caption in 2010-1113 is reflected above. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478542/ | ORDER
Wounded Warriors Family Support, Inc. responds to the court’s order directing it to show cause why this appeal should not be transferred and moves without opposition to transfer this appeal to the United States Court of Appeals for the Eighth Circuit.
Upon consideration thereof,
IT IS ORDERED THAT:
The motion to transfer is granted. The appeal is transferred to the United States Court of Appeals for the Eighth Circuit pursuant to 28 U.S.C. § 1631. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478544/ | ON MOTION
ORDER
The parties move to voluntarily dismiss these appeals.
On December 16, 2008, this court stayed briefing pursuant to 11 U.S.C. § 362 due to Jennifer Long’s pending bankruptcy petition. Long informs the court that the United States Bankruptcy Court for the Central District of California has dismissed the bankruptcy case.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion is granted. .The stay is lifted, the appeals are reactivated, and the appeals are dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478546/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478548/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478550/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478552/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478554/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478556/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478558/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478560/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478719/ | OPINION
BARRY, Circuit Judge.
Franck Dakaud seeks review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings. We will grant his petition for review, vacate the BIA’s decision, and remand for further proceedings.
I.
Dakaud, a citizen of the Ivory Coast, entered the United States in June 1993 on a visitor visa that expired in September 1993. He married his first wife, Tracy Gibbs, in August 1999, and Gibbs filed a Form 1-130 (Petition for Alien Relative) on Dakaud’s behalf. Gibbs later withdrew this petition, and the couple divorced in October 2001. Dakaud was ordered to appear for removal proceedings in April 2002. An Immigration Judge (“IJ”) held a hearing in September 2002, at which Da-kaud conceded removability. The IJ continued the proceedings, however, in part because Dakaud discussed the possibility of remarrying. Another hearing was held in May 2003, and Dakaud notified the IJ that he and Gibbs had again married, and that Gibbs had filed a new 1-130, which was pending. After a hearing scheduled in November 2003 was continued because the 1-130 had not yet been adjudicated, the IJ held another hearing in September 2004, at which Dakaud informed the IJ that the 1-130 had been denied for failure to properly respond to a request for evidence, and that he had appealed this decision. The IJ again continued the removal proceedings. At a May 2005 hearing, Dakaud told the IJ that he was still married, but had neither seen nor spoken to his wife in several months. The IJ stated that if another I-130 had not been filed or if Dakaud’s appeal of the denied 1-130 had not been decided by the next hearing, he would order Dakaud to leave the United States. At the final hearing in April 2006, Dakaud stated that he was in the process of again divorcing Gibbs, and planned to marry his girlfriend, Deidra Jenkins. The IJ denied Dakaud’s request for another continuance and entered an order of removal. Dakaud appealed the removal order to the BIA, which affirmed in September 2007. Da-kaud sought review in this Court, but later withdrew the petition.
Dakaud married Jenkins in November 2007. Jenkins filed a new 1-130 on Da-kaud’s behalf, and Dakaud filed a motion to reopen his case before the BIA. The Department of Homeland Security (“DHS”) opposed the motion on two grounds: (1) Dakaud had not disclosed in his motion the petition for review he had filed in this Court, as required by regulation; and (2) Dakaud failed to submit evidence relating to the bona fide nature of his marriage to Gibbs, which the DHS argued was relevant to the consideration of his marriage to Jenkins. See 8 U.S.C. § 1154(c) (“[N]o petition shall be approved if ... the alien has previously ... sought to be accorded[ ] an immediate relative or preference status as the spouse of a citizen of the United States ... by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws.”).
*275The BIA denied the motion to reopen in March 2008, stating that because it was opposed by the DHS, it “must be denied.” (A.R. 2.) The BIA did not consider the DHS’s first reason for opposing the motion to be “a proper ground for a DHS objection” because the DHS had notice of the petition for review filed in this Court, and it denied the motion “[bjased on the second DHS objection.” (Id.) Dakaud timely filed this petition for review.1
II.
In denying Dakaud’s motion, the BIA relied on its decision in Matter of Velarde-Pacheco, which provides that a motion to reopen removal proceedings for adjustment of status based on a marriage entered into after the commencement of proceedings may be granted, in the exercise of discretion, when:
(1) the motion is timely filed; (2) the motion is not numerically barred by the regulations; (3) the motion is not barred by Matter of Shaar, 21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4) the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the [DHS] either does not oppose the motion or bases its opposition solely on Matter of Arthur, [20 I. & N. Dec. 475 (BIA 1992) ].
23 I. & N. Dec. 253, 256 (BIA 2002). The BIA denied Dakaud’s motion on the basis of the fifth factor. Although Velarde-Pacheco suggests that the DHS’s opposition to the motion is dispositive, see Bhiski v. Ashcroft, 373 F.3d 363, 370-72 (3d Cir.2004), the BIA recently “clarifi[ed] or ... modified]” Velar de-Pacheco, leaving no doubt that the fifth factor “does not grant the DHS ‘veto’ power over an otherwise approvable Velarde motion,” Matter of Lamus-Pava, 25 I. & N. Dec. 61, 64-65 (BIA 2009). The BIA explained:
We are not persuaded that the mere fact of a DHS opposition to a motion, in and of itself, should be dispositive of the motion without regard to the merit of that opposition. The DHS’s arguments advanced in opposition to a motion should be considered in adjudicating a motion, but they should not preclude the Immigration Judge or the Board from exercising “independent judgment and discretion” in ruling on the motion. 8 C.F.R. § 1003.1(d)(l)(ii); see also 8 C.F.R. § 1003.10(b) (2009) (“In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion .... ”). If the DHS’s arguments are persuasive, they should prevail. If they are not, an otherwise approvable motion should not be denied simply based on the fact that an unpersuasive argument was advanced by the Government.
Lamus-Pava, 25 I. & N. Dec. at 65.
Here, the BIA apparently believed that because the DHS opposed Dakaud’s motion, it was required to deny it. It is clear, after Lamus-Pava, that this is not the case. Accordingly, remand is appropriate to permit the BIA to consider Dakaud’s motion to reopen in light of Lamus-Pava.
III.
We will vacate the BIA’s decision and remand for further proceedings.
. We have jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s denial of Dakaud’s motion to reopen for abuse of discretion, and will disturb its decision only if it is arbitrary, irrational, or contrary to law. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478724/ | OPINION
PER CURIAM.
Cesar Augusto Cardona Toro (“Cardo-na”) petitions for review of a decision by the Board of Immigration Appeals (“BIA”) rendered on December 8, 2008. For the reasons that follow, we will deny the petition for review.
I. Background
Cardona is a native and citizen of Colombia. He entered the United States in October 2002 and overstayed his visa. He was served with a Notice to Appear. In August 2006, he conceded removability and applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), claiming he suffered past persecution and fears future persecution and torture in Colombia on account of his political opinion.
At his hearing before the Immigration Judge (“IJ”), Cardona testified to the following: Cardona was an artist and art teacher in Colombia. In March 1999, he displayed three paintings that were critical of Colombia’s revolutionary Armed Forces of Colombia (“FARC”). A group of six *281men associated with the FARC entered the art school, damaged the paintings, and threatened Cardona with a gun, stating that if Cardona continued making such paintings, he “was going to die in the gutter” and they “would put a bomb in the [art] school.” A.R. 135-36
The men returned several times and demanded payment of a “fíne.” Although he could have afforded it, Cardona refused to pay. During the last visit, one of the men hit Cardona twice on the head with a gun and threw him to the ground. Shortly thereafter, Cardona left the art school and fled to his parent’s home in another city.1 Cardona became depressed. He went into hiding for nearly three years and eventually fled to the United States in October 2002.
The IJ found that Cardona was not a credible witness because his first asylum application omitted key details of his story, see A.R. 297-98, and because a report from Cardona’s psychiatrist did not mention any fear of the FARC, see A.R. 215. The IJ also concluded that even if Cardona had been credible, the events he described did not rise to the level of persecution. In addition, the IJ concluded it was unlikely that the FARC was still interested in Car-dona because years had passed since the alleged acts of persecution. Accordingly, the IJ denied relief.
Cardona appealed.2 The BIA concluded, inter alia, that the IJ’s adverse credibility findings were not clearly erroneous. In addition, the BIA affirmed the conclusion that, even if he had been credible, Cardona failed to demonstrate past harm rising to the level of persecution or a well-founded fear of future persecution. Although Cardona attempted to present new evidence of country conditions in Colombia, the BIA declined to consider the new evidence and also declined to remand the proceedings to the IJ for further consideration. The BIA dismissed the appeal.
This timely counseled petition for review followed.
II. Analysis
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). We generally review only final orders of the BIA. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir.2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). However, where the BIA adopts the IJ’s reasoning and discusses the bases of the IJ’s decision, we also review the IJ’s order. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003), and uphold factual determinations if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). Ultimately, for Cardona to succeed on his petition for review, this Court “must find that the evidence not only suppovts that conclusion [that the application should have been granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original).
*282To qualify for asylum, Cardona was required to establish that he is “unable or unwilling to return to [Colombia] ... 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.”3 INA § 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A) ]; INA § 208 [8 U.S.C. § 1158], Here, the IJ denied relief on two independent grounds: (1) that Cardona was not a credible witness; and (2) even if credible, Cardona did not establish past persecution or a well-founded fear of future persecution. The BIA affirmed both conclusions. Because it is dispositive of the petition for review, we will limit our primary discussion to the holding that Car-dona failed to establish past persecution or a well-founded fear of future persecution.4
A.
Persecution encompasses “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). The most egregious acts of alleged persecution to which Cardona testified were the FARC’s death threats against him, which were made at gunpoint.
While such threats are abhorrent, they are not necessarily persecution. We have held that not all forms of unfair, unjust, or even unlawful treatment qualify as persecution. Id. Indeed, unfulfilled threats constitute persecution in only a very narrow set of circumstances. In order to qualify, the threats must be of a highly imminent and menacing nature. Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.2005). Even if made at gunpoint, not all death threats are sufficiently imminent and menacing. See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 342 (3d Cir.2008) (incidents in which applicant was “rounded up ... at gunpoint,” without physical injury or robbery, were oblique and not imminent and did not constitute persecution).
*283Here, the record reflects that Cardona did not suffer any serious physical injury and the FARC members never made any real attempt to follow through with their threats. See A.R. 156-57 (Hrg. Tr. at 35-36) (testifying that, although Cardona did not pay the “fíne,” the FARC never put a bomb in his art school as threatened). Generally, situations involving threats with little or no accompanying physical harm do not rise to the level of persecution. See Gomez-Zuluaga, 527 F.3d at 342; cf. Chavarria v. Gonzalez, 446 F.3d 508, 518-20 (3d Cir.2006) (incident in which applicant was robbed at gunpoint and threatened with death was sufficiently concrete and menacing to constitute persecution).
We are given some pause because, in addition to the death threats, Cardona testified that the FARC members hit him with a gun and demanded a “fine.” These additional incidents, of themselves, are not sufficiently extreme to qualify as persecution. See Fatin, 12 F.3d at 1240. However, when considered together, these incidents at least arguably increase the sense of imminence of the danger that Cardona faced when the FARC members brandished guns and threatened his life.
On balance, we cannot conclude that these events compel the conclusion that Cardona experienced harm rising to the level of persecution. See Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812; Gomez-Zuluaga, 527 F.3d at 342 (threats coupled with relatively brief detentions at gunpoint are not past persecution); Li, 400 F.3d at 165-70 (3d Cir.2005) (threats coupled with actual economic hardship are not past persecution). While the FARC’s actions are reprehensible, we cannot say that they necessarily fall within the “small category of cases” where the threats “are so menacing as to cause significant actual suffering or harm.” Id. at 164. Accordingly, we conclude that the finding that Cardona did not experience harm rising to the level of past persecution rests upon substantial evidence.
B.
Because Cardona did not establish past persecution, he was not entitled to a rebuttable presumption that his “life or freedom would be threatened in the future....” 8 C.F.R. § 1208.16(b)(l)(i). Cardona therefore was required to demonstrate that he “has a genuine fear, and that a reasonable person in [his] circumstances would fear persecution if returned to [his] native country.” Ahdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003).
Although the FARC’s threats against Cardona do not constitute past persecution, they are nevertheless relevant to whether Cardona has an objectively reasonable fear of future persecution. Li, 400 F.3d at 165 n. 3 (unfulfilled threats may be indicative of a danger of future persecution). Even considering the threats, however, there is substantial record evidence supporting the conclusion that a reasonable person in Cardona’s circumstances would not fear future persecution in Colombia.5
*284According to Cardona, the FARC will continue to pursue him based exclusively upon the events of the Spring of 1999, when he “defied them with my paintings and by not giving them the money.” A.R. 144 (Hrg. Tr. at 23). The IJ doubted the reasonableness of this fear because this isolated incident took place so many years ago: “[t]he respondent has never had any political involvement that we are aware of prior to these two or three paintings that he painted, or since the two or three paintings.” See A.R. 97 (IJ Decision at 11). We agree. The record is devoid of evidence that Cardona continues to be involved in any remotely political activity of concern to the FARC. Indeed, Cardona himself testified that “if [the FARC] did not see any more paintings like this, my life would be safe.” A.R. 149 (Hrg. Tr. at 28). He then went on to concede that “I stopped making those paintings” after the 1999 incident. See id. Particularly in light of this testimony, we see nothing in the record to demonstrate that the FARC would have any continued interest in pursing Cardona.
In addition, the IJ found that the reasonableness of Cardona’s fear was undercut by his testimony that he had not experienced any trouble with the FARC during the three years he lived in Colombia prior to departing for the United States. Although Cardona claimed to have been “hiding” during those years, he testified that he was living at his parents’ home.6 A.R. 147 (Hrg. Tr. at 26). He acknowledged that the FARC never looked for him at his parents’ home and “they did not know that my family lived there.” A.R. 148 (Hrg. Tr. at 27). Such testimony casts serious doubt upon Cardona’s testimony that he cannot live safely anywhere in Colombia because the FARC’s “computer system” will be able to track and find him no matter where he lives. See A.R. 162 (Hrg. Tr. at 41).
Cardona argues that the IJ and BIA erred in denying his future persecution claim because they “ignored” a 2006 State Department Report, which demonstrates that his fear of the FARC is objectively reasonable. We disagree. Even if the IJ or BIA arguably erred by failing to discuss the report in detail, the error was harmless. Reviewing the record as a whole, Cardona failed to establish the objective reasonableness of his fear that he would be individually singled out for future persecution by the FARC. There is nothing in the State Department Report compelling a contrary conclusion.
C.
Cardona has moved to expand the record to include the 2008 State Department Report on Country Conditions and Human Rights Practices for Colombia. The BIA did not consider this report and it does not appear in the administrative record. Accordingly, we may not consider it. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A) ]; Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed *285record.”)- While we have specifically-called upon the BIA to consider current country information where possible so that we may avoid review of administrative records “so out-of-date as to verge on meaningless,” we have not adopted the approach of considering reports if they were not considered by the BIA in the first instance. See Berishaj, 378 F.3d at 331. Cardona’s motion is therefore denied.
III. Conclusion
In sum, we conclude that substantial evidence supports the denial of Cardona’s asylum application. In addition, because “[t]he standard for withholding of removal is higher than, albeit similar to, the standard for asylum.... If [Cardona] is unable to satisfy the standard for asylum, he necessarily fails to meet the standard for withholding of removal.... ” Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003).
For all of the foregoing reasons, we will deny the petition for review.
. Cardona also testified that, in November 1999, he was invited to paint a portrait for a church in another town. At the unveiling, Cardona heard shots and saw a man from tire FARC. Although someone was killed in the church shooting, Cardona was unharmed. The IJ found that Cardona failed to demonstrate that this incident was directed at him. Cardona has not offered anything to demonstrate that the finding is clearly erroneous.
. Cardona did not appeal the IJ’s denial of his CAT claim to the BIA and he has not raised the issue in his petition for review. Accordingly, we conclude he has abandoned it.
. To qualify for withholding of removal, Car-dona was required to establish that his “life or freedom would be threatened” on the basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C. § 1231(b)(3)(A)]. "To meet this test, the alien must demonstrate that there is a greater-than-fifty-percent chance of persecution upon his or her return.” Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998).
. The IJ based his adverse credibility determination on certain differences between Cardona's initial asylum application and his amended application. See A.R. 285-98 (initial application); A.R. 264-84 (amended application). The I.J. noted that the initial application omitted significant details that appeared in the amended application. A.R. 98-99. These "inconsistencies” served as the primary basis of the I.J.’s adverse credibility determination. A.R. 99. However, the I.J.'s analysis downplayed a material difference between the two applications. Cardona is a non-English speaker. While his initial application was prepared with the help of his relatives, his amended application was prepared with the assistance of counsel. Although the IJ. recognized that "an individual can certainly do a better job with an attorney ... than without an attorney,” he did not adequately address the quality of the assistance that Cardona actually received from his relatives. A.R. 98. Indeed, on its face, Cardona's initial application is riddled with grammatical errors that call into question the quality of this assistance. See e.g., A.R. 291, 297-98. Given this, we conclude that the alleged "inconsistencies” in Cardona’s successive applications, by themselves, do not support an adverse credibility determination. See Cao v. Att’y Gen., 407 F.3d 146, 160 (3d Cir.2005) (" ‘[A]n applicant's testimony is not per se lacking in credibility simply because it includes details that are not set forth in the asylum application.’ ") (quoting Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996)). Therefore, we reverse the I.J.'s adverse credibility determination as unsupported by substantial evidence.
. Because we have accepted Cardona’s credibility for purposes of our analysis, we also accept that he established a subjective fear of future persecution. See Guo v. Ashcroft, 386 F.3d 556, 565 (3d Cir.2004) (“A primary means of showing that fear is genuine is with credible testimony.”). We therefore focus only on the requirement that Cardona had to establish an objectively reasonable fear of future persecution. To prevail, Cardona was required to show either that he would be individually singled out for persecution, or that "there is a pattern or practice ... of persecution of a group of persons similarly situated...." 8 C.F.R. § 208.13(b)(2)(iii)(A). Because Cardona never argued that there is a "pattern or practice” of persecution of similarly-situated individuals in Colombia, we consider only his individualized claim.
. Cardona contends that his three years “in hiding” do not undermine his claim because the law “does not demand that a person become a hermit.” Cardona is correct that, under certain circumstances, a need to go into hiding may support a persecution claim. See Toure v. Att’y Gen., 443 F.3d 310, 319 (3d Cir.2006). However, where going "into hiding” merely means relocation to another part of the country to avoid persecution, this may undermine the asylum claim. Id. at 319 n. 3. Here, Cardona testified that he relocated to his parents' home and the FARC never made any attempt to find him there. See A.R. 147-48 (Hrg. Tr. at 26-27). There is nothing to support his claim that he was required to become a “hermit." Based upon the record, we conclude that Cardona’s move to his parents' home is appropriately viewed as a relocation. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478726/ | *286OPINION
PER CURIAM.
Pro se appellant Richard Snyder appeals from the order of the United States District Court for the District of Delaware dismissing his complaint. We will affirm.
On November 24, 2008, Snyder filed his complaint in District Court, naming as defendants Carolyn Swanson, personal representative of the estate of George Swanson; Carolyn Swanson; and Robert Swanson. According to the allegations, the matter stems from a frustrated real estate contract, and Snyder has a history of litigation with the defendants in state and federal courts. Snyder sought to have prior state and federal court rulings vacated so that he could proceed on his claims in federal court, and he requested a jury trial. Summons was issued to attorney Walter W. Green, a non-party, and was returned as executed. On March 80, 2009, the District Court ordered Snyder to show cause why the case should not be dismissed for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure. Snyder filed a response, contending, among other things, that Green and his limited liability company have represented the defendants in other matters relating to his case. Attached to Snyder’s response was a letter from Green dated March 19, 2009, informing Snyder that at no time did he agree to accept service on Carolyn Swanson’s behalf and that the process server did not personally serve Green but instead served a secretary in his office. Nevertheless, Snyder argued that service was proper on Green as the defendants’ agent. Alternatively, Snyder requested limited discovery to establish the facts contained in his process server’s affidavit, or, an additional sixty days to complete service on the defendants’ attorneys.
On June 11, 2009, the District Court rejected Snyder’s contentions and determined that Snyder had not served the defendants properly under Rule 4. Further, the District Court found that Snyder had made no attempts to effect proper service upon receiving Green’s letter or upon receiving the order to show cause. Thus, the District Court concluded that Snyder had not demonstrated good cause for his failure to serve his complaint on the defendants and dismissed the case under Rule 4(m). Snyder filed a timely motion for reconsideration, which the District Court denied by order entered June 30, 2009.
Snyder appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We review the District Court’s order for abuse of discretion. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1308 (3d Cir.1995). Under Rule 4(m), the District Court must first determine whether good cause exists for failure to serve. Id. at 1305. If good cause exists, the District Court must extend the time for service. Id. If good cause does not exist, the District Court has discretion either to dismiss the complaint without prejudice or to extend the time for service. Id.
We agree with the District Court that Snyder has not shown good cause for his failure to serve. Snyder’s main argument is that he properly served the defendants by serving Green, contending that *287Green was authorized to accept service as the defendants’ agent under Rule 4(e). Snyder bases his assertion on Green’s having acted as counsel in prior litigation. There is no showing that Green was expressly “authorized by appointment or by law” as Rule 4(e) contemplates. Rather, Snyder argues that Green’s authority to accept service is implied. We do not credit this argument of implied authority when the record shows that Green himself expressly and unambiguously informed Snyder that he did not agree to accept service. Moreover, from the documents Snyder submitted in support of his response to the District Court’s show cause order, as well as statements made in Snyder’s brief, it is uncontested that the process server did not personally serve Green and instead served a secretary present in Green’s office. Snyder’s arguments regarding the propriety of service delivered to a secretary in Green’s office fares no better. Snyder argued in his response to the show cause order that the process server’s handing the summons and complaint to Green via the secretary — an employee of Green’s, or of Daniels & Green, L.L.C. — constitutes proper service on both Green and the limited liability company of which Green is a member. However, Snyder is not suing Green or the L.L.C.; he is suing the defendants named in the complaint. Thus, it is irrelevant whether service could be deemed proper as to Green or the company. We are unpersuaded by Snyder’s reliance on this set of facts.
For similar reasons, the District Coui't did not abuse its discretion in dismissing the complaint rather than extending the time for service. See MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir.1995). As the District Court noted, although Snyder is proceeding pro se, by his own account, he is an experienced litigant. Further, the District Court duly considered that Snyder made no attempt to serve the defendants properly after receiving Green’s letter or after receiving the show cause order. Snyder argues that the District Court failed to consider his request to extend the time for effecting service. In fact, the District Court recognized Snyder’s request for additional time. (See June 3, 2009 Mem. Order at 2.) Moreover, in his response to the show cause order, Snyder emphatically argued that service already was accomplished properly. In seeking an extension of time to comply with Rule 4, Snyder stated his intent “to again serve these attorneys who always have, and continue to, represent defendants.” (Response to Show Cause Order at 6.) Given that Snyder’s request to extend the time to serve the complaint actually evidenced his refusal to effect service on the defendants and his continued pursuit to serve Green, we view dismissing the complaint as an appropriate exercise of the District Court’s discretion.2 We also discern no error in the District Court’s denial of Snyder’s motion for reconsideration.
We will affirm the District Court’s judgment.
. It appears from Snyder’s complaint that his lawsuit is based on an underlying real estate deal that is the subject of a lawsuit he filed against the defendants in Maryland state court in 2002. Because it also appears that the statute of limitations on his claims has run, we conclude that the District Court's dismissal without prejudice is a final decision. See Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.2002) (holding that an order dismissing a claim without prejudice is a final ap-pealable order if the statute of limitations for that claim has expired). See also Md.Code § 5-101.
. That Snyder's claim may be time-barred, see supra note 1, does not alter our analysis. The expiration of the statute of limitations does not require a district court to extend the time for service; the court has discretion to dismiss the case even if the refiling of the action is time-barred. See MCI Telecommunications Corp., 71 F.3d at 1098 (citing Petrucelli, 46 F.3d at 1306). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478728/ | OPINION
PER CURIAM.
Edward Coleman, proceeding pro se, appeals the order of the District Court denying his motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). For the following reasons, we will affirm.
I.
In 2004, Coleman was indicted in the United States District Court for the Eastern District of Pennsylvania on two counts of possession of a firearm by a convicted felon and three counts of possession of a controlled substance. The indictment stemmed from two unrelated arrests on June 13, 2003 and September 26, 2003. A jury found him guilty of the three counts resulting from the June 13 arrest; he later pled guilty to the remaining two counts. At sentencing, the base offense level for the firearm count was used, as it was higher than that for the drug count. Because Coleman had a least two prior convictions for drug or violent felonies, the base offense level was 24. His status as an armed career offender increased the level to 33. The District Court sentenced him to 240 months of imprisonment, near the low end of the 235-to-293-month range. We affirmed Coleman’s conviction and sentence. United States v. Coleman, 451 F.3d 154 (3d Cir.2006), cert. denied, 549 U.S. 1137, 127 S.Ct. 991, 166 L.Ed.2d 748 (2007).
Coleman filed a pro se motion under 28 U.S.C. § 2255 in November 2007. The *289District Court denied that motion in January 2009 and we denied his request for a certificate of appealability (“COA”) in October 2009. In May 2009, while his request for a COA was pending, Coleman filed a “Motion to Modify an Imposed Term of Imprisonment Pursuant to 18 U.S.C. § 3582(c)(1)(B) ... predicated upon modifying statute 28 U.S.C. § 2255.” After giving Coleman notice pursuant to United States v. Miller, 197 F.3d 644 (3d Cir.1999), the District Court denied the motion in June 2009. Coleman timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s determination that a defendant is ineligible for a sentence reduction pursuant to § 3582(c). See United States v. Sanchez, 562 F.3d 275, 277 & n. 4 (3d Cir.2009).
III.
Coleman argues that the District Court erred in denying his motion for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(1)(B). That section states that “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Coleman contends that 28 U.S.C. § 2255 is the modifying statute that would authorize this Court to reduce his sentence.
Coleman claims that the sentencing court erred in classifying him as an armed career offender. He argues that his prior convictions do not qualify as “serious drug offenses” under 18 U.S.C. § 924(e)(2)(A)(ii)1 because they were for relatively small quantities of narcotics. Nevertheless, the record shows that his prior convictions did qualify as “serious drug offenses,” given that possession with the intent to distribute or deliver cocaine carries a ten-year maximum sentence. 35 Pa. Stat. § 780-113(0(1.1).
The purpose of Coleman’s invocation of § 2255 is unclear. To the extent he is seeking to overturn the conviction on which his career criminal status is predicated, § 3582 is not the appropriate vehicle to do so. Because he has already challenged his present conviction and sentence via § 2255, he may not do so again without first obtaining authorization from us. See §§ 2244, 2255.
VI.
For the foregoing reasons, we will affirm the District Court’s judgment.
. Under § 924(e)(2)(A)(ii), a "serious drug offense’’ is one that carries "a maximum term of imprisonment of ten years or more." | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478561/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia; on the mem-oranda of law and fact filed by the parties; and on the motion to supplement the record, the opposition thereto, and the reply. The court has determined that the issues presented occasion no need for an opinion. See D.C.Cir. Rule 36. It is
ORDERED that the motion to supplement the record be granted. See Fed. R.App. P. 9(a)(2), (b). It is
FURTHER ORDERED AND ADJUDGED that the district court’s December 23, 2009 order be affirmed. Under any standard of review, the district court did not err in holding that appellant failed to overcome the presumption that he posed a risk of flight after being convicted. See 18 U.S.C. § 3143(a) (requiring detention pending sentencing “unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released”). The combination of appellant’s citizenship in Sierra Leone, his trip there *122prior to his indictment, his mandatory deportation after serving his sentence, his extensive financial resources, and his lack of candor regarding the proceeds from three real estate sales provides strong evidence supporting the presumption that he poses a risk of flight. As the district court held, appellant’s strong family ties in the community are undermined by the fact that he faces deportation after serving his sentence, and the conditions he proposes for his release fail to provide clear and convincing evidence that he would not continue to pose a significant flight risk.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478563/ | JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties, it is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.
Appellant Troy Antoine Hopkins appeals his conviction for conspiracy to distribute one kilogram or more of phencyclidine, seeking to have his conviction reversed and his case remanded to the district court for a new trial. He contends that the district court erred when it denied him a continuance of his trial, and further that during closing argument the government made improper and inflammatory remarks constituting error that affected his substantial rights.
First, Hopkins sought the continuance of his trial in order to replace appointed counsel with retained counsel. As this court noted in United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), “the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application, and is not subject to review absent a clear abuse.” We also noted in Burton that when the continuance is sought to replace counsel, “the defendant’s Sixth Amendment right to assistance of counsel is implicated. In such circumstances, the right to select counsel must be carefully balanced against the public’s interest in the orderly administration of justice.” Id. Here, the record shows that the district court “carefully balanced” Hopkins’ right to counsel against the negative impact a continuance would have on the court, the prosecution, the co-defendants (some of whom were in eusto-. dy), their attorneys, and the witnesses. The court also found that Hopkins had competent appointed counsel and that Hopkins was responsible for his having relatively less time to prepare for trial than had his co-defendants because he chose to remain a fugitive for 10 months. We conclude that the district court did not abuse its discretion in denying Hopkins a continuance.
Second, the remarks made by the prosecutor during closing argument and complained of by Hopkins may indeed have been error. To reverse his conviction, however, we must determine whether the improper remarks were plainly erroneous because Hopkins did not object to the remarks at trial. United States v. Gartmon, 146 F.3d 1015, 1026 (D.C.Cir.1998). “In making that determination, the critical question is whether the error prejudiced defendant in a way that affected the outcome of the trial.” Id. When assessing potential prejudice from an improper remark in a prosecutor’s closing argument, this court looks to the centrality of the issue affected by the error, the closeness of the case, and the steps taken to mitigate the error. Id. Here, the remarks complained of were minor in light of the prosecutor’s lengthy closing argument and none were central to the conspiracy case against Hopkins. Furthermore, the case was not *124close as the evidence against Hopkins was substantial. Finally, and most importantly, the district court ensured that the prosecutor’s remarks did not prejudice Hopkins by promptly directing the prosecutor to clarify his remarks, and by instructing the jury that its recollection of the evidence controls, that it must decide the case based on the evidence alone, and that the closing arguments of counsel are not evidence. In light of these facts the prosecutor’s remarks, even if improper, were not plainly erroneous.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478565/ | JUDGMENT
PER CURIAM.
This appeal was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined they do not warrant a published opinion. See D.C. Cir. Rule 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
John Downs, III appeals his conviction by a jury of conspiracy to distribute and possess with intent to distribute one kilogram or more of phencyclidine (“PCP”), 21 U.S.C. §§ 846, 841(a)(1) & (b)(l)(A)(iv), on two grounds. Neither is persuasive.
First, Downs contends the district court clearly erred in attributing to him at sentencing 3,285.7 grams of liquid PCP that were seized from two drug couriers at Dulles International Airport (“LAD”) in Virginia, which raised his base offense level from 32 to 34. We find no such error. See United, States v. Henry, 557 F.3d 642, 645 (D.C.Cir.2009).
The evidence showed that Downs’ involvement in the conspiracy headed by Darnell Jackson and Troy Hopkins was generally through Jackson. Jackson would often give PCP to Downs to sell and Downs would pay Jackson from the profits from his subsequent PCP sales in Annapolis, Maryland. Downs was aware that Jackson obtained his PCP from a supplier (Tony Hilt) in Compton, California. Jackson and Hopkins paid couriers $1,000 plus expenses to bring PCP back to the Washington, D.C. area from California. In early May, Jackson and Downs discussed the immediate unavailability of PCP. In a series of taped conversations, Jackson confirmed with his supplier on May 12 that PCP was available and later that day telephoned Downs to ask him for $1,400 to send two drug couriers to California to pick up PCP, and Downs agreed to provide it. Jackson and Downs spoke again on May 13, confirming Downs’ efforts to get Jackson the $1,400 for the couriers. On May 15, two couriers flew from IAD to California on flights costing roughly *126$1,400. On May 22 Downs also agreed to give Jackson $1,000 for PCP that Jackson had “fronted” for Downs. On May 23, Jackson told Hopkins he expected to get $3,000 from Downs that Jackson would use to pay for two couriers’ trip from California to IAD. On May 24, two couriers arrived at IAD from California, and the FBI seized 3,285.7 grams of liquid PCP from them. When Jackson learned of the seizure, he telephoned Downs to inform him because Downs “was waiting ... for the [PCP] to come in” that day. Oct. 23, 2007 Tr. at 31.
The district court acknowledged that the May 12 telephone call and the $1,400 Jackson requested from Downs may not have related to the shipment of PCP that was seized at IAD on May 24. Nonetheless the district court found that, together, the May 12 telephone call discussing the $1,400, Downs’ selling PCP “fronted” to him by Jackson, and the May 24 call informing Downs of the seizure indicated that Downs was part of the ongoing conspiracy to bring PCP to the Washington, D.C. area from California. Downs offers no reason for this court to view this as other than a reasonable inference from the evidence. Cf United States v. Hart, 324 F.3d 740, 747 (D.C.Cir.2003). Downs has never denied agreeing to make the $1,400 payment, only that he actually intended to pay; the May 12 and subsequent telephone conversations of Downs’ repeated assurances he would pay belie his denial. The district court could properly hold Downs responsible for the 3,285.7 grams of PCP seized at IAD even if he did not know about that shipment because the shipment was reasonably foreseeable to him and in furtherance of his agreed upon and jointly undertaken criminal activity. United States v. Tabron, 437 F.3d 63, 66 (D.C.Cir. 2006); United States v. Stover, 329 F.3d 859, 874 (D.C.Cir.2003); U.S.S.G. § 1B1.3(a)(1)(B); see generally Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Downs’ challenge to his 120 months’ sentence of imprisonment, consistent with the statutory mandatory minimum after he received the benefit of the safety valve (resulting in a Guideline range of 121-151 months), thus fails.
Second, Downs contends the district court abused its discretion in denying his motion for a new trial because of the ineffectiveness of his trial counsel. See United States v. Alexander, 331 F.3d 116, 128-29 (D.C.Cir.2003). However, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Downs has shown .neither that his trial counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment nor that he was prejudiced. See id. at 687, 104 S.Ct. 2052. The record shows that trial counsel informed Downs of the risks of calling character witnesses because that would allow the prosecutor to introduce rebuttal evidence of Downs’ admissions, during post-arrest debriefing meetings with FBI agents, to purchasing PCP from Jackson on repeated occasions and reselling it in Annapolis.
The district court found, after an evidentiary hearing, that Downs’ trial counsel made a reasonable tactical decision in deciding to put on evidence of Downs’ good character in the community. Essentially, the district court noted trial counsel faced a difficult decision in view of Downs’ insistence on going to trial (and testifying) and calling character witnesses even after being advised of the risk. The district court found that the decision to call character witnesses was a mutual one made by Downs and his trial counsel and that, given the government’s evidence, trial counsel was not deficient in pursuing a character *127defense. As trial counsel explained, calling character witnesses might be beneficial by “humaniz[ing]” Downs. Oct. 16, 2008 Tr. at 81. Downs does not explain how the district court erred. See Strickland, 466 U.S. at 689, 104 S.Ct. 2062. Further, Downs does not attempt to show how he was prejudiced, and this alone suffices for the court to affirm the district court’s rejection of his Sixth Amendment claim. See id. His own cross-examination covered many of the same matters as the cross-examination of one of the character witnesses. The district court noted Downs’ own testimony hurt his case, observing that “he was a very bad witness.” Oct. 29, 2008 Tr. at 48. Downs’ new counsel for sentencing appeared to agree, observing that the jury had no choice except to find Downs guilty because he admitted on the witness stand that he committed the offense. Feb. 5, 2009 Tr. at 36.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478567/ | SUMMARY ORDER
Plaintiff-Appellant-Cross-Appellee Nat-Tel LLC (“NatTel”) — a founder and minority shareholder of Oceanic Digital Communications, Inc. (“ODC”) — appeals from a September 16, 2005, 2005 WL 2253756, decision of the District Court dismissing its Third Amended Complaint and denying a cross-motion for Rule 11 sanctions. In its complaint, NatTel alleged, inter alia, that Defendants-Appellees-Cross-Appel-lants SAC Capital Advisors LLC et al. (“SAC”) — the majority and controlling shareholder in ODC — breached their fiduciary obligations to minority shareholders, committed trover and conversion, engaged in various fraudulent activities, and breached an oral contract with the principals of NatTel.
The District Court held that, in light of a prior arbitration proceeding, NatTel was precluded from relitigating various issues raised in its complaint, including whether “SAC breached its fiduciary duty to treat NatTel fairly and keep it apprised of corporate decisions, [whether] SAC engaged in corporate self-dealing, and [whether] it made misrepresentations to [NatTel’s principals] ... regarding their continued participation in corporate governance.” The District Court further held that, under Connecticut’s choice-of-law provisions, the law of the Bahamas — where ODC was incorporated — governed this dispute because NatTel’s claims involved matters of internal corporate governance. After finding that NatTel could state no claim under Bahamian law, the District Court granted SAC’s motion to dismiss the complaint. Finally, the District Court denied SAC’s request for Rule 11 sanctions, reasoning that “while NatTel was not successful in its argument ... [its] argument was not unreasonable.”
On appeal, NatTel asserts that the District Court erred in (1) applying collateral estoppel based on a prior arbitration proceeding involving different legal standards, and (2) concluding that under Connecticut choice-of-law provisions, NatTel’s claims were governed by the law of the Bahamas, rather than the law of Connecticut. SAC cross-appeals from the District Court’s denial of Rule 11 sanctions.
We review de novo a district court’s decision granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), taking all factual allegations in the complaint as true and construing all reasonable inferences in favor of the plaintiff. See, e.g., Conboy v. AT & T Corp., 241 F.3d 242, 246 (2d Cir.2001). We review decisions on Rule 11 motions under an abuse of discretion standard, see Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57 (2d Cir.2000), recognizing “that the district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard that informs its determination as to whether sanctions are warranted,” Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.1999).
We need not address the District Court’s application of the doctrine of collateral estoppel because even assuming ar-guendo-that NatTel could escape the pre-clusive effects of the arbitration panel’s February 11, 2004 decision, the District Court was correct in concluding that, under Connecticut choice-of-law provisions, Bahamian law would govern NatTel’s suit. *134As the District Court noted, “ ‘the law of the state of incorporation normally determines issues relating to the internal affairs of a corporation’ because ‘[application of that body of law achieves the need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation.’” NatTel, LLC v. SAC Capital Advisors, No. 3-04CV1061, 2005 WL 2253756, at *9, 2005 U.S. Dist. LEXIS 20179, at *27 (D.Conn. Sept. 16, 2005) (quoting First Nat’l City Bank v. Banco Para El Comercio Extenor de Cuba, 462 U.S. 611, 621, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983)). This default rule is consistent with provisions in the Restatement (Second) of Conflict of Laws (“Restatement”), which dictate that the local law of the state of incorporation shall apply “to determine the right of a shareholder to participate in the administration of the affairs of the corporation,” Restatement § 304, and to determine “[t]he obligations owed by a majority shareholder to the corporation and to the minority shareholders,” Restatement § 306.
NatTel argues that in lieu of this approach — which is also referred to as the “internal affairs” doctrine — Connecticut choice-of-law provisions prescribe a “most significant relationship” test which, in the circumstances presented, would point to the application of Connecticut law. Nat-Tel’s argument is unavailing, however, because it is predicated on a misreading of the Connecticut Supreme Coui't’s decision in O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986). That case did not involve a dispute between shareholders regarding the internal affairs of a corporation; rather, it addressed choice-of-law questions in the context of a tort action brought by a plaintiff who suffered injuries in an automobile accident. Id. at 14. In discerning the applicable law, the O’Con-nor Court relied on sections of the Restatement that do not specifically address disputes between shareholders or matters relating to the internal affairs of a corporation. Id. at 22 (citing Restatement §§ 145, 6).
Taking into account the Restatement’s specific provisions concerning shareholder disputes as well as Connecticut case law recognizing the choice-of-law guidelines set forth in the Restatement, see, e.g., Lowinger v. Century Commc’ns Corp., No. X06CV 990153534S, 2000 WL 73581, at *1 (Conn.Super.Ct. Jan.13, 2000) (recognizing that the “internal affairs” doctrine governs disputes arising out of “relationships between and among a corporation’s directors, officers, and shareholders”); Buitekant v. Zatos Corp., No. CV94-0135874, 1996 WL 107044, at *3 (Conn.Super.Ct. Feb.20, 1996) (“In general, the law of the State of incorporation is held to govern the liabilities of officers or directors to the corporation and its stockholders.”) (citation and internal quotation marks omitted), we hold that the District Court did not err either in discerning Connecticut’s choice-of-law rules or in concluding that NatTel’s claims are governed by Bahamian law.
Upon our review of the record, and based on our assessment of the reasonableness of NatTel’s legal arguments, we further hold that the District Court did not abuse its discretion in declining to impose Rule 11 sanctions against NatTel.
We have considered NatTel’s arguments on appeal and SAC’s argument on cross-appeal, and found them to be without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478570/ | SUMMARY ORDER
Appellant Cascades Boxboard Group CT, LLC, appeals from a judgment of the United States District Court for the District of Connecticut (Eginton, J.), which confirmed an arbitration award in favor of Appellee United Steel Workers, Local 1840, and United Steelworkers, AFL-CIO, CLC. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
Reviewing under the highly deferential standard required for arbitration awards, see Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001), we conclude the district court did not err in confirming the award. Nor did the court err in declining to award fees.
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/8478571/ | SUMMARY ORDER
Appellants, all of whom are, or were, directors or officers of the now-bankrupt brokerage firm Refco, Inc., appeal from an order of the District Court dated March 2, 2009, granting summary judgment to defendants-appellees Arch Insurance Company and Allied World Assurance Company (U.S.), Inc. (“Allied World”) (together, “defendants”). Defendants were, at all times relevant, the providers of appellants’ excess director and officer liability insurance policies. The District Court granted summary judgment to defendants upon finding that (1) the excess policies’ prior knowledge exclusions precluded coverage where any insured had knowledge of facts that might give rise to a claim and (2) the claims for which appellants sought coverage all arose from facts that were known by at least one insured at the time the policies were entered into. XL Specialty Ins. Co. v. Agoglia, Nos. 08 Civ. 3821, 08 Civ. 4196, 08 Civ. 5252, 2009 WL 1227485, at *8-9, *13 (S.D.N.Y. Apr.30, 2009).1 We assume the parties’ familiarity with the remaining factual and procedural history of the case.
We find no error in the District Court’s comprehensive and well-reasoned analysis. First, we agree with the District Court that “[i]n the context of the [prior knowledge exclusions], the words ‘any insured’ unambiguously preclude coverage for innocent co-insureds.” Id. at *13. Moreover, because that language in the excess policies cannot be reconciled with the sever-ability provision of the underlying policy, the language in the excess policies controls. See id. (citing Home Ins. Co. v. Am. Home Prods. Corp., 902 F.2d 1111, 1113 (2d Cir.1990)).
*195We further agree that the prior knowledge exclusions’ “arising out of’ requirement was satisfied. All of the claims for which appellants sought coverage “arose from the fraudulent concealment of the Refco Receivable” scheme that one of the directors was aware of. Id. at *9 (explaining that “New York courts have given the phrase ‘arising out of a ‘broad’ interpretation, defining it as ‘originating from, incident to, or having connection with’ ” (quoting Maroney v. N.Y. Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 472, 805 N.Y.S.2d 533, 839 N.E.2d 886 (2005))).
Finally, we reject appellants’ argument that defendant Allied World is precluded from relying on the prior knowledge exclusion because the language of that exclusion was not part of the “policy binder” that provided the terms of coverage before the final policy issued. We agree with the District Court that the binder’s inclusion of an “Inverted Warranty Endorsement as of Inception” was the equivalent of a prior knowledge exclusion and would have been understood as such by the parties. See id. at *14-15.
CONCLUSION
We have considered all of appellants’ arguments and find them to be without merit. For the foregoing reasons, the order of the District Court is AFFIRMED.
. The District Court's Opinion and Order was originally entered on March 2, 2009, but reentered on April 30, 2009 to correct a scanning error. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478574/ | SUMMARY ORDER
Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (Lynch, J.) entered May 5, 2009, dismissing plaintiffs’ Complaint in its entirety following the entry of a directed verdict on plaintiffs’ negligence, failure to warn, breach of warranty, and punitive damages claims, and a jury verdict in defendant’s favor on plaintiffs’ strict products liability claim. We assume the parties’ familiarity with the underlying facts and procedural history of this case.
On appeal, plaintiffs argue that the district court erred in excluding evidence of “other incidents” in which Ford vehicles allegedly experienced acceleration or deceleration problems, and improperly granted a directed verdict on plaintiffs’ negligence, failure to warn, and punitive damages claims. Having carefully considered the parties’ submissions to this Court and the record on appeal, we find all of plaintiffs’ arguments to be without merit. Accordingly, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478576/ | OPINION
PER CURIAM.
John Rendon petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny the petition.
I.
Rendon is a citizen of Colombia who entered the United States without inspection in 1993. In November 1995, he married Gaty Ramos, a United States citizen (although he now disputes the legal validity of the marriage). As a result, he ob*263tained conditional permanent resident status following an interview with the then-immigration and Naturalization Service (“INS”).
Rendon later applied to lift the conditions on his status, and he and Ramos appeared for a second interview toward that end in November 2000. Both appeared for a morning session, but only Rendon returned in the afternoon. After he did, an INS officer told him that Ramos had been married five times and was already married to another man when Ren-don married her. Rendon then gave a sworn statement, in which he admitted that: (1) a third party arranged the marriage for immigration purposes in exchange for $5,000; (2) he and Ramos never lived together as husband and wife and he did not intend to do so at the time he married her; (3) he and Ramos had studied for the immigration interview the night before; and (4) he paid Ramos $500 to appear for the interview. (A.R. 184-86.) Rendon and Ramos ultimately divorced in May 2001.
Thereafter, the INS denied Rendon’s application and terminated his conditional permanent resident status. The Government filed a Notice to Appear charging Rendon as removable: (1) under 8 U.S.C. § 1227(a)(l)(d)(i) because his residency status had been terminated; and (2) under 8 U.S.C. § 1227(a)(1)(A) because he is inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for having procured that status by fraud or willful misrepresentation. Before the Immigration Judge (“IJ”), Rendon admitted that he is a citizen of Colombia and that his residence status had been terminated, but otherwise denied the charges. He also applied for cancellation of removal under 8 U.S.C. § 1229b(b)1 on the grounds that his removal would result in hardship for his United States citizen daughter (by another relation), who is suffering from speech-related problems.
At his hearing, Rendon denied most of the substance of his prior statement (though he admitted paying Ramos $500 to attend the interview) and testified that he gave the statement under duress because INS officers threatened to send him to jail if he did not admit that the marriage had been arranged. (A.R. 156-59.) Contrary to his statement, he testified that he met Ramos at a discotheque and married her out of love, though the couple lived together for only six months and he ultimately obtained a divorce on the grounds of abandonment.
The IJ, however, found that the marriage had been fraudulent and sustained the charges of removal.’ He relied on Ren-don’s prior statement but, acknowledging Rendon’s assertion that he made it under duress, relied also on Rendon’s testimony about other events that he found inconsistent with Rendon’s claim that he divorced Ramos because she had abandoned him. The IJ also denied Rendon’s application for cancellation of removal. The IJ found that removal would result in the requisite hardship to Rendon’s daughter, but concluded that (1) Rendon was statutorily ineligible for cancellation because his fraudulent marriage precluded a finding that he was a person of “good moral character,” 8 U.S.C. § 1229b(b)(l)(B), and (2) that issue aside, he would deny the application in the exercise of his discretion, in part because of the serious nature of the fraud and because Rendon’s daughter was doing well. *264The BIA agreed with the IJ on both points and dismissed his appeal. Rendon petitions for review.2
II.
Rendon challenges only the denial of his application for cancellation of removal. After he filed his brief, the Government filed a motion for summary action, arguing that the BIA’s denial of cancellation in the exercise of its discretion is sufficient to support its ruling and that we lack jurisdiction to review that discretionary decision under 8 U.S.C. § 1252(a)(2)(B)(i). We agree that “[tjhis Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187,189 (3d Cir.2005). We retain jurisdiction, however, to review “constitutional claims or questions of law.” Id. (citing 8 U.S.C. § 1252(a)(2)(D)). We do so de novo, subject to established principles of deference on agency review. See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.2009). We conclude that Rendon has raised two issues that we have jurisdiction to review and a third that requires discussion. Because these arguments lack merit and do not present a substantial question, however, we will grant the Government’s motion and deny Rendon’s petition. See 3rd Cir. LAR 27.4 (2008); 3rd Cir. IOP Ch. 10.6.
Rendon argues that the BIA committed both legal and constitutional error in finding that his marriage was fraudulent, and that it thus erred in relying on that factor in exercising its discretion to deny his application.3 First, Rendon argues that, because Ramos was already married when he married her, his marriage was void ab initio and had no legal effect. Thus, he reasons, he cannot be found to have entered into a fraudulent marriage if he cannot legally be deemed to have entered into a marriage at all. We are not persuaded. The IJ rejected this argument on the grounds that Rendon could still be deemed to have committed fraud whether his marriage turned out to be legally valid or not (IJ Dec. at 4), and we agree. The legally relevant factor in this case is the fraud, not the validity of the marriage that was the subject of the fraud. Cf. Onyeme v. INS, 146 F.3d 227, 230, 234-35 (4th Cir.1998) (recognizing that basis for deportation was alien’s misrepresentation about his marriage, not the validity of his marriage).4
Second, Rendon argues that the IJ deprived him of due process because it was “fundamentally unfair” for the IJ to rely on his prior statement. That is so, he argues, because he made the statement under duress and the Government did not *265produce the officer who took the statement for cross-examination at the hearing. The Government argues that Rendon was not entitled to due process given the discretionary nature of the relief he sought, but we need not reach that issue because the substance of Rendon’s argument lacks merit.
Rendon does not frame this argument in terms of the admissibility of his statement, but we have recognized in that context that whether IJs may rely on particular evidence depends on “ ‘whether the evidence is probative and whether its use is fundamentally fair so as not to deprive the alien of due process of law.’ ” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003) (citation omitted). We also have recognized that due process requires “a meaningful opportunity to be heard” and a “reasonable opportunity to present evidence.” Jarbough v. Att’y Gen., 483 F.3d 184, 190, 192 (3d Cir.2007).
The IJ’s reliance on Rendon’s statement did not deprive him of these protections. Rendon’s prior statement clearly was probative, and the IJ himself solicited and considered Rendon’s explanation for the statement. Moreover, although the officer who took the statement was not available for cross-examination, the statement was Rendon’s own, not the officer’s, and Ren-don was permitted to explain the circumstances under which he gave it. Rendon cites no authority suggesting that these circumstances deprived him of due process, and we are aware of none.5
Finally, Rendon argues that the BIA erred in weighing the equities because it failed to “fully consider” the hardships his daughter will face if he is removed. The BIA did not specifically mention those hardships. The IJ did so, however, and concluded on balance that they did not warrant cancellation of removal as matter of discretion. (IJ Dec. at 12-14.) The BIA declined to disturb that ruling. (BIA Dec. at 2.) To the extent that Rendon’s brief might be read to argue that the BIA gave these hardships inadequate weight, we lack jurisdiction to review that argument. See Cospito v. Att’y Gen., 539 F.3d 166,170 (3d Cir.2008); Jarbough, 483 F.3d at 189.
Accordingly, we will deny the petition for review.
. This provision gives the Attorney General the discretion to cancel an alien's removal if the alien satisfies four threshold statutory requirements, including that the alien has been a "person of good moral character” during at least 10 years of residence' in the United States and that the alien’s removal “would result in exceptional and extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(l).
. We review the decisions of both the IJ and the BIA in this case because the BIA both affirmed the IJ's rulings and summarized his reasoning while providing some of its own. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009).
. Rendon raised these arguments in his brief only as challenges to the BIA’s conclusion that he was statutorily ineligible for cancellation because he was not a “person of good moral character,” not as challenges to the BIA’s overall exercise of discretion. He did not assert them as a challenge to the BIA's exercise of discretion as well until his response to the Government’s motion. Thus, as the Government argues, we could deem that challenge waived. See Hoxha v. Holder, 559 F.3d 157, 162-63 (3d Cir.2009). Because Rendon raised the substance of these arguments in his opening brief, however, we will address them on the merits.
.The sole authority on which Rendon relies held merely that an alien’s visa was void because he obtained it by marrying a United States citizen after he already had married someone else. See Lozoya-Zarote v. INS, 3 F.3d 437 (Table), No. 92-5217, 1993 WL 347081, at *2 (5th Cir. Aug.17, 1993). That decision is inapposite.
. We have held as a matter of substantial evidence that IJs may not rely exclusively on certain immigration interviews in finding an alien not credible, particularly where the circumstances of the interview are unclear or there were apparent language difficulties. See, e.g., Korytnyuk v. Att’y Gen., 396 F.3d 272, 289-90 & n. 22 (3d Cir.2005). Rendon has not invoked this line of authority or otherwise argued that the IJ's conclusion regarding his marriage is not supported by substantial evidence (and we likely would lack jurisdiction to review that argument if he had). Moreover, the concerns underlying those decisions do not appear to be present in this case, and the IJ did not rely exclusively on Rendon's prior statement in finding his marriage fraudulent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478578/ | OPINION
TUCKER, District Judge.
Hasan Murphy pled guilty to a violation of 18 U.S.C. § 922(g)(1), possession of a firearm by a felon. The District Court sentenced him to a 92-month term of imprisonment and a three-year term of supervised release. We affirm.
I.
On appeal, Murphy contends that his sentence must be vacated because it is unreasonable. He argues that the District Court failed to comply with the second and third steps of the sentencing procedure outlined in United States v. Gunter. 462 F.3d 237 (3d Cir.2006). Murphy asserts that the Court did not properly rule on his motion for departure based on the conditions of his pre-trial confinement. He further contends that the Court did not “meaningfully consider” the factors of his criminal history and the conditions of his 15-month confinement at Passaic County Jail, as provided for in 18 U.S.C. § 3553(a).
When imposing a sentence, a District Court must give “meaningful consideration” to the Section 3553(a) factors. In determining reasonableness, the sentence is affirmed “as long as it is within the statutorily prescribed range ... and [the sentence] is reasonable.” United States v. Cooper, 437 F.3d-324, 327 (3d Cir.2006). Specifically, the appellate court “must be satisfied that the [District] Court exercised its discretion by considering the relevant factors set forth in Section 3553(a)”. Id. at 329. Here, Mr. Murphy briefed the issue in advance of sentencing and the parties argued the matter, which the Court expressly acknowledged along with its discretion to depart or vary downward from the advisory Sentencing Guidelines. In a similar case, United States v. Jackson, the Defendant argued at sentencing for a downward departure on the grounds of “extraordinary acceptance of responsibility.” 467 F.3d 834, 836 (3d Cir.2006). Similar to the present matter, the District Court heard the arguments on the motion but did not expressly rule on it. Id. at 836, 839. Instead, the Court moved to consideration of the Section 3553(a) factors and discussed the points it considered pertinent before sentencing the Defendant to the lowest end of the Guidelines range. Id. at 836-37. The sentence was affirmed because the Court “was able to infer meaning from the District Court’s actions.” Id. at 840. Contrary to Murphy’s assertions, we are satisfied that no ambiguity exists as to whether the District Court understood its discretion to depart from the Guidelines. Accordingly, Mr. Murphy’s claim is denied.
Likewise, the record demonstrates that the District Court gave “meaningful consideration” to the Section 3553(a) factors in determining Murphy’s sentence. Both parties agree that the Court reiterated the factors at sentencing, thus demonstrating an understanding of the analysis required. The record also demonstrates that not only did the Court understand the law properly, it applied the correct law and considered Murphy’s arguments. Accordingly, the sentence is affirmed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478580/ | OPINION OF THE COURT
STAPLETON, Circuit Judge:
This appeal arises out of appellee and cross-appellant Melissa Brown’s- lawsuit against appellant and cross-appellee Nutrition Management Services Co. (“NMS”) and two of its employees alleging violations of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.Stat.Ann. § 951 et seq. Brown’s claims were tried to a jury twice. After the second trial, the District Court entered judgment in favor of Brown against NMS and subsequently entered orders awarding Brown back pay, liquidated damages, and attorney’s fees, but denying her motion for front pay. NMS appeals several of the Court’s orders, and Brown cross-appeals the orders denying *269her motion for front pay and reducing the amount of attorney’s fees she requested.
Because we write only for the benefit of the parties, we assume familiarity with the facts of this civil action and the proceedings in the District Court. We will affirm in part, reverse in part, and remand for further proceedings.
I. Factual Background
The basic facts of this appeal are undisputed. In 2002, Brown began working as the food service director at Plymouth House, a nursing home. After Plymouth House was purchased by a new owner in 2004, NMS was hired to provide food service there. In August 2004, Brown was hired by NMS to continue working in her position at Plymouth House. Around that time, Brown informed several NMS employees that she was pregnant and would need time off from work to give birth to her child. Approximately two months later, Brown met with her supervisor, Karen Zywalewski, and NMS’s Human Resources Manager, Scott Murray. NMS terminated Brown at that meeting.
Brown filed a complaint in the Eastern District of Pennsylvania alleging that NMS, Zywalewski, Murray, and New Courtland Elder Services1 interfered with her right to take leave in violation of the FMLA, discriminated against her on the basis of her pregnancy and sex in violation of Title VII, and discriminated against her on the basis of her pregnancy and sex in violation of the PHRA.2
A jury trial on the FMLA and Title VII claims commenced in January of 2008. At the conclusion of the trial, the jury returned a verdict, finding NMS and Zywa-lewski liable for violating the FMLA, but not Title VII, and awarding Brown $275,000 in compensatoiy and punitive damages, but no back or front pay. The District Court entered judgment in favor of Brown in the amount of $1 against NMS and Zywalewski and then sua sponte ordered a new trial. The second jury found defendant NMS hable for violating the FMLA, but found no liability under Title VII, and found no liability on the part of Zywalewski or Murray. The jury awarded Brown $74,000 in back pay and omitted any award for front pay. The Court then awarded Brown liquidated damages, attorney’s fees, and costs, but denied Brown’s motion for front pay. NMS filed a timely notice of appeal, and Brown cross-appealed. On appeal, NMS argues that the Court erred by: 1) granting judgment in favor of Brown after the first trial and ordering a new trial sua sponte, 2) failing to charge the jury with an instruction explaining NMS’s affirmative defense to the FMLA claim and failing to include a question about the affirmative defense in the jury interrogatory, 8) awarding liquidated damages to Brown, and 4) awarding attorney’s fees to Brown. In her cross-appeal, Brown contends that the District Court erred by refusing to award front pay to her and reducing the amount of attorney’s fees she requested.
II. Ordering A New Trial
First, NMS argues that the District Court erred by sua sponte ordering a new trial after the jury returned its verdict in the first trial. Rule 59(d) permits a trial court to order a new trial “for any reason that would justify granting one on a party’s motion.” Fed.R.Civ.P. 59(d). A new trial may be granted “when the verdict is *270contrary to the great weight of the evidence; that is where a miscarriage of justice would result if the verdict were to stand” or when the court believes the verdict results from jury confusion. Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453 (3d Cir. 2001) (internal quotations and citations omitted) (miscarriage of justice); Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1538 (5th Cir.1984) (jury confusion). We review a district court’s decision to grant a new trial for abuse of discretion. William A. Graham Co. v. Haughey, 568 F.3d 425, 437 (3d Cir.2009).
As discussed above, the jury found NMS and Zywalewski liable under the FMLA, but not under Title VII. In response to specific questions on the verdict form, the jury awarded Brown “$0” damages for back pay, and “$0” in front pay, but awarded her $50,000 in compensatory damages for “past and future pain, suffering, or emotional distress” and $225,000 in punitive damages — damages that the parties agreed were not recoverable under the FMLA.3 See 29 U.S.C. § 2617. In response to this verdict, the District Court entered judgment in favor of Brown in the amount of $1.00 and then sua sponte ordered a new trial. The Court explained that it ordered a new trial because: “1) manifest injustice would result if the verdict were allowed to stand; 2) there was apparent jury confusion; 3) the jury form was flawed; and 4) the verdict was inconsistent.” [A 91] During a hearing on the subsequent motion to reconsider, the District Court gave a further explanation, stating, “I believe the verdict was against the weight of the evidence ... I feel that, as a result of how I crafted the interrogatories, inadvertently there was juror confusion that resulted in manifest injustice or universal injustice.... ” [SA 41]
We conclude that the District Court did not err by ordering a new trial. Instead, the Court acted within its considerable discretion when it ordered the new trial after concluding that the verdict resulted from confusion because the jury instructions and the verdict form may have misled the jury into believing that compensatory and punitive damages were recoverable under the FMLA. Furthermore, the Court did not abuse its discretion when it determined that manifest injustice would result if the verdict were allowed to stand because the jury verdict was against the weight of the evidence. Importantly, the jury found liability under the FMLA, but awarded no recoverable damages under the FMLA even though the evidence established that Brown was unemployed for several months and then took a lesser paying position after she was terminated from her position at Plymouth House. Because of this evidence, Brown was entitled to back pay if the jury found, as it did, that NMS and Zywalewski violated the FMLA by terminating her. For both of these reasons, the District Court did not abuse its discretion by ordering a new tidal;4
III. Failing to Charge on the Affirmative Defense
Next, NMS claims that the District Court abused its discretion when it refused *271to instruct the jury on the affirmative defense to FMLA liability.5 NMS correctly argues that it was entitled to this instruction, as we have recognized that there is an affirmative defense to an interference claim under the FMLA. See Samowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir.2007) (“[Plaintiff] will not prevail on his interference claim if [his employer] can establish that it terminated [him] for a reason unrelated to his intention to exercise his rights under the FMLA.”); see also 29 U.S.C. § 2614(a)(3)(B). Thus, NMS was entitled to an instruction that informed the jury that it could not find NMS liable on the FMLA interference claim if NMS proved that it would not have continued to employ Brown regardless of her request for FMLA leave.
We review the jury instructions for abuse of discretion, evaluating “whether, taken as a whole, the instruction properly apprised the jury of the issues and the applicable law.” See Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.2009). “We will not vacate a judgment if the errors in the charge are harmless.” Armstrong v. Burdette Tomlin Mem’l Hasp., 438 F.3d 240, 245-46 (3d CL.2006). Likewise, a district court’s formulation of jury interrogatories is reviewed for abuse of discretion. Id. at 246. “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Id. (internal quotations omitted).
During the charge on FMLA liability, the Court instructed the jury that NMS could legally terminate Brown, as long as it did not interfere with her FMLA leave by terminating her because she was pregnant. The Court repeatedly admonished the jury that it should not question NMS’s “business judgment.” Moreover, at some points during the charge, the Court appeared to place the burden on Brown to prove that NMS fired her because of the pregnancy, instead of requiring NMS to prove that it would have fired her regardless of her request for leave related to her pregnancy. After a careful review of these instructions, we conclude that, although the District Court erred by refusing to give an instruction on the affirmative defense, the charge properly informed the jury of the applicable law. Because NMS did not suffer any prejudice as a result of these instructions, the error was harmless. See Armstrong, 438 F.3d at 246 (“Harmless errors in parts of a jury charge that do not prejudice the complaining party are not sufficient grounds on which to vacate a judgment and order a new trial.”).
We also find no abuse of discretion in the District Court’s decision not to include a question about the affirmative defense in the jury interrogatory. The jury was informed that it could not find NMS liable under the FMLA unless it found Brown was terminated because of her pregnancy. Thus, a positive answer to Interrogatory No. 2, which asked whether Brown proved by a preponderance of the evidence that NMS interfered with her rights under the FMLA, resolved any question as to whether the jury believed NMS had terminated Brown for her poor performance. Accordingly, the questions asked were “adequate to determine the factual issues essential to the judgment.” See id.
IV. Liquidated Damages
Third, NMS claims that the Court erred by awarding liquidated damages to *272Brown. Section 2617 of the FMLA directs that “any employer who violates' section 2615 of this title shall be liable” to the employee for damages, including “an additional amount as liquidated damages equal to the sum [of monetary damages and interest on those damages].” 29 U.S.C. § 2617(a)(1)(A)(iii) (emphasis added). However, an employer may avoid paying such damages “if [it] ... proves to the satisfaction of the court that the act or omission which violated section 2615 was in good faith and that the employer had reasonable grounds for believing that the act or omission” was not a violation of that section. Id. In such a case, the court has discretion to award only monetary damages and interest. See id. Thus, we review a decision to grant liquidated damages under the abuse of discretion standard. See Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d Cir.1991) (addressing liquidated damages claim under the Fair Labor Standards Act); see also 29 U.S.C. § 2617(a)(l)(A)(iii) (stating that the decision not to award liquidated damages is within “the discretion of the court”); Chandler v. Specialty Tires of Am., Inc., 283 F.3d 818, 827 (6th Cir.2002) (reviewing determination of liquidated damages under the FMLA according to the standard applicable to FLSA claims because “the remedial provisions of the FMLA mirror those of the [FLSA]”).
The District Court determined that NMS did not meet its burden of proving that it terminated Brown in good faith or that it had reasonable grounds for believing it did not violate the FMLA, and we find no error in its analysis. The Court based its decision in part on its observation that the “witnesses involved in Brown’s termination offered conflicting testimony ... regarding [NMS’s] decision and justification for terminating Brown.” [A 99] The Court also concluded that NMS did not have reasonable grounds for believing it was not violating the FMLA because it failed to take any affirmative steps to determine whether Brown was an eligible employee under the FMLA. Accordingly, thé District Court did not abuse its discretion by awarding liquidated damages to Brown.
V. Attorney’s Fees
Lastly, NMS contends that the District Court erred when it awarded attorney’s fees to Brown, arguing that the lodestar amount should have been reduced because Brown’s attorney’s time records were vague and insufficient and because of Brown’s lack of success in the civil action. We review a district court’s award of attorney’s fees under the abuse of discretion standard. In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 256 (3d Cir.2009).
On the .first issue, the District Court concluded that Brown’s attorney’s time records were sufficient under our decision in Rode v. Dellarciprete, 892 F.2d 1177, 1190 (3d Cir.1990). We agree. In Rode, we stated that “[a] fee petition is required to be specific enough to allow the district court ‘to determine if the hours claimed are unreasonable for the work performed.’ ” Id. (quoting Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir. 1983)). Here, the time records included the date, a description of the activity, and the time expended. The District Court found that these records were specific enough for it to evaluate whether the attorney’s time was reasonably expended. Accordingly, the District Court did not abuse its discretion by awarding the hours that NMS disputed on specificity grounds.
With regard to NMS’s second argument, we note that the District Court did adjust the lodestar by 20% based on Brown’s overall lack of success, her failure to prove that she was entitled to front pay, *273and the difference between the award sought and actually received from the jury. However, the Court did not abuse its discretion by refusing to further reduce the lodestar amount, in part because it agreed ■with Brown that “the discovery and evidence necessary to establish FMLA liability were the same for both [the] FMLA and Title VII” and because it specifically deducted hours expended on the PHRA claim. [A 125] Moreover, the sum of the attorney’s fees awarded, $146,784.00, is reasonable in light of the fact that the action was tried twice, and that Brown was awarded $161,311.64 as a result of the suit.
VI. Front Pay
In her cross-appeal, Brown argues that the District Court erred by refusing to award her front pay. See Donlin, 581 F.3d at 86 (decision to award front pay is reviewed for abuse of discretion). The FMLA allows “equitable relief as may be appropriate, including employment, reinstatement, and promotion.” 29 U.S.C. § 2617(a)(1)(B). Here, Brown agreed that reinstatement was not feasible, and, thus, the case proceeded on the issue of front pay. She consented to a jury determination of this issue.
During the jury instructions, the District Court explained that calculating front pay required reducing any award to its present value. In the course of explaining the concept of present value, the Court stated, “However, the lawyers have agreed that you shouldn’t do it because, if you award front pay, I’ll do it. It’s a very complicated formula that we don’t want to ask you to try and understand.” [A 258-59] In accordance with the instructions, the jury interrogatory included questions about the amount of damages the plaintiff proved. In response to Interrogatory No. 7, which asked about the amount of “back pay” due to Brown, the jury wrote “$74,000.” [A 277] In response to Interrogatory No. 8, which asked about “front pay,” the jury wrote “OMIT per Judge’s instructions.” Id. In answering Interrogatory No. 9, regarding the amount the damages should be reduced for failure to mitigate, the jury wrote “$0.” Id.
After the verdict was returned, Brown promptly moved for post-judgment relief on the issue of front pay. The District Court refused to award front pay, concluding that the “jury awarded Brown no front pay.” [A 101] The Court rejected Brown’s argument that the jury’s answer was ambiguous, explaining that “[w]e believe the jury chose to “omit” an amount of monetary damages for front pay from its response to Interrogatory Number 8 because it found that Brown was not entitled to them.” [A 103]
Reading the jury’s response in the context of the jury instructions regarding front pay and the jury’s answer — “$0”—to the question on mitigation, we think it is clear that the jury wrote “OMIT per Judge’s instructions” because it believed the Court would calculate the amount of front pay itself, not because it believed Brown was not entitled to it. Therefore, we conclude that the District Court erred when it interpreted the jury’s answer as denying Brown any award of front pay.
Although the jury’s answer indicated that the jury believed Brown was entitled to front pay, the jury did not award a specific amount. We are thus faced with the question of an appropriate remedy. Although Brown initially consented to a jury determination on the issue of front pay, she now asks for a determination of this issue by the District Court. The law permits the District Court to make this determination, see Donlin, 581 F.3d at 78 n. 1, and such a course is more efficient than empaneling and educating a third jury. Accordingly, we will remand so that *274the District Court may consider whether front pay is appropriate and in what amount.6
VII. Conclusion
The District Court’s denial of Brown’s claim for front pay will be vacated, and that matter will be remanded for further proceedings in accordance with this opinion. The District Court’s judgment in favor of Brown against NMS will be affirmed in all other respects. On remand, the District Court may reconsider the amount of its attorney’s fee award in light of any award of front pay.
. Brown settled with New Courtland Elder Services before trial.
. The PHRA claim was dismissed by the District Court, and the dismissal was not appealed.
. Although this Court has not so held, the parties' conclusion is supported by the statutory text of the FMLA, see 29 U.S.C. § 2617(a), and the decisions of our sister courts of appeals. See, e.g., Farrell v. TriCountry Metro Transp. Dist of Or., 530 F.3d 1023, 1025 (9th Cir.2008); Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1007-08 (6th Cir.2005).
. Because we conclude that the Court did not err by ordering a new trial, we need not decide whether the Court erred by entering a verdict in the amount of $1 in favor of Brown after the first trial.
. This argument was not waived because NMS presented a proposed jury instruction on the affirmative defense and objected to the Court’s decision not to give that instruction at the charging conference.
. Judge Fisher believes that Brown consented to a jury determination on her front pay request, never objected to the District Court's charge or verdict form and she did not, after the verdict was returned, ask the District Court to resubmit what she now characterizes as an ambiguous answer from the jury. Had NMS raised a waiver argument, Judge Fisher would have voted to deny front pay and affirm the District Court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478584/ | OPINION
ROTH, Circuit Judge:
Omega Peoples appeals from the judgment of conviction and sentence of the District Court after a jury found him guilty of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we will describe them only as necessary to explain our decision. For the reasons discussed below, we will affirm.
Peoples argues that the District Court erred in denying his motion for judgment of acquittal because the government did not present sufficient evidence that he constructively possessed the firearm. We disagree.
‘We apply a particularly deferential standard of review when deciding whether a jury verdict rests on legally sufficient evidence.” United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998). We neither reweigh the evidence presented at trial nor reassess the witnesses’ credibility. United States v. Hedaithy, 392 F.3d 580, 605 (3d Cir.2004). “If ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ [we] will sus*277tain the verdict.” Id. (first alteration in original) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “Thus, a claim of insufficiency of the evidence places a very heavy burden on an appellant.” Dent, 149 F.3d at 187 (internal quotation marks omitted).
“[Constructive possession exists if an individual ‘knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.’ ” United States v. Lopez, 271 F.3d 472, 487 (3d Cir.2001) (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir.1991)). Mere proximity to the firearm or mere presence on the property where it is located is insufficient to support a finding of possession. See United States v. Brown, 3 F.3d 673, 681 (3d Cir.1993).
Peoples’s argument fails because we, after viewing the evidence in the light most favorable to the government, hold that a rational juror could have concluded that Peoples was in constructive possession of the firearm. Officer Jaworski testified that he found Peoples lying underneath a minivan in an otherwise-vacant lot with a gunshot wound just minutes after Jawor-ski heard gunshots. The firearm, which was concealed by a metal box, was also underneath that minivan with Peoples. Indeed, it was on the ground within “arm’s reach” of Peoples. Moreover, Peoples could not be eliminated as a contributor to the DNA evidence that was recovered from the firearm’s grip and trigger. In addition to finding the firearm within arm’s reach of Peoples, police officers found a ski mask and batting glove under the minivan. DNA evidence categorically linked Peoples to the ski mask. Although Peoples insisted that all three — the firearm, ski mask, and batting glove — were not his, a reasonable juror, crediting the DNA evidence, could have disbelieved him.
Accordingly, we will affirm the District Court’s judgment of conviction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478586/ | OPINION
ROTH, Circuit Judge:
Marcel Brown, Sr. appeals the District Court’s order denying his motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction. Brown contends the court wrongly determined it was bound by the Sentencing Guidelines Policy Statement that prohibits sentence reduction under section 3582(c)(2) when the Guidelines amendment does not lower a defendant’s applicable guideline range. See U.S.S.G. § 1B1.10. We assume the parties’ familiarity with the facts and record of prior proceedings, to which we refer only as necessary to explain our decision. For the reasons given below, we now affirm the District Court’s order denying Brown’s section 3582(c)(2) motion.1
Brown’s presentence investigation report (PSR) calculated that the amount of drugs attributable to him was 1.5 kilograms or more of cocaine base, resulting in a base offense level of 38. He received two additional points because he possessed a firearm during the commission of the crime and four more points because of his leadership role.2 Because his criminal history category was VI, the resulting guideline range was life imprisonment. The statutory maximum, however, was 360 months, which ultimately became his guideline imprisonment range.3
Brown suggests he is eligible for resen-tencing under section 3582(c)(2), which allows a court to modify a term of imprisonment when it is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... 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.” • § 3582(c)(2). One such applicable policy statement is set forth in section 1B1.10(a)(2)(B) of the Sentencing Guidelines, which provides that a reduction in accordance with section 3582(c)(2) is not authorized when “an amendment ... does not have the effect of lowering the defendant’s applicable guideline range.” U.S.S.G. § lB1.10(a)(2)(B). The Sentencing Commission reduced by *279two the base offense levels for offenses involving crack cocaine with Amendment 706.4
We agree with the District Court that Brown is not entitled to resentencing under section 3582(e)(2) because Amendment 706 “does not have the effect of lowering [Brown’s] applicable guideline range.” Using the Guidelines as amended, Brown’s base offense level would be 42. His drug quantity, 1.5 kilograms of cocaine base, and criminal history, VI, would remain the same, resulting in an applicable guideline range of 360 months to life. Again, because 360 months is the statutory maximum, Brown’s applicable guideline range would be 360 months. Thus, in accordance with section 1B1.10(a)(2)(B), Brown is not entitled to resentencing under section 3582(c)(2).
For the foregoing reasons, we will affirm the District Court’s order denying Brown’s motion for resentencing.
. This Court conducts a plenary review of questions concerning the proper interpretation of the Sentencing Guidelines. See United States v. Edwards, 309 F.3d 110, 112 (3d Cir.2002).
. An initial PSR reflected that three points should be added to account for Brown's leadership role; it was later revised to four.
.Brown was sentenced to a total term of 216 months imprisonment, the result of a 40 percent reduction at the Government's request based on his substantial assistance.
. Amendment 706 was subsequently amended by Amendment 711. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478588/ | OPINION
PER CURIAM.
Petitioner Kiangana Dialungana1, a native and citizen of the Democratic Republic of Congo, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen. For the following reasons, we will deny his petition.
Dialungana entered the country in December 2002 as a sixteen-year-old stowaway and the INS arrested him at the port in New Orleans. Dialungana filed for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Before the immigration judge (“IJ”) he testified that he fled the Congo after he accidentally killed two police officers during a driving lesson. After Dia-lungana arrived in the United States, he learned from his mother that the police came to his house and shot at it until it collapsed, shooting his eight-year-old brother in the process. He also testified that the police went to the hospital and severely beat his ill father, who died the next day. The IJ, denying all forms of relief, found Dialungana not credible. (A.R. 188-140.) On February 27, 2004, the BIA affirmed the IJ’s decision and dismissed the appeal. (Id at 104.) Dialun-gana did not seek a petition for review in this Court.
On March 17, 2008, Dialungana filed a motion to reopen his removal proceedings alleging changed conditions in Congo and ineffective assistance of counsel. The BIA, finding that Dialungana offered only generalized evidence of country conditions and not specific evidence regarding the likelihood that he would be subject to persecution in the Congo, denied the motion. (Id at 2-3.) Dialungana filed a timely petition for review in this Court challenging the BIA’s order.
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002). We will uphold the BIA’s factual determinations so long as “they are ‘supported by reasonable, substantial, and probative evidence on the record as a whole.’ ” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009) (quoting INS v. Elias-Zacarías, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
Motions to reopen are generally required to be filed with the BIA “no later than 90 days after the date on which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2). The deadline does not apply to motions that rely on evidence of “changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(h). Here, Dialungana did not file the motion to reopen within the 90-day window; therefore, he must show changed country conditions *281in the Congo in order to excuse the untimeliness.
Dialungana focuses his argument on his eligibility for protection under the CAT.2 Specifically, Dialungana challenges the BIA’s reliance on the IJ’s adverse credibility determination in denying his CAT claim and his motion to reopen. As the Government points out, however, the BIA did not base its denial of the motion to reopen on the adverse credibility determination, but rather on Dialungana’s failure to present any evidence that he would be tortured in light of the changed country conditions. In order to be eligible for reopening, Dialungana was required to show that there is a reasonable likelihood that he is entitled to CAT relief. See Shardar v. Att’y Gen., 503 F.3d 308, 313 (3d Cir.2007) (citation and quotation marks omitted). While Dialungana devoted much of his motion to arguing deteriorating country conditions in the Congo, he did not argue how those conditions affect the likelihood that he would be tortured by, or at the acquiescence of, the Congolese government. See, e.g., Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir.2007) (an applicant for relief on the merits under the CAT bears the burden of establishing that it is more likely than not that he or she would be tortured if removed to the proposed country of removal). In his reply brief, Dialungana points to the 2006 State Department Country Report on Human Rights Practices in Congo which states that security forces in the Congo “[are] poorly trained, poorly paid, undisciplined, and committed numerous human rights abuses with impunity.” (A.R. at 48.) This statement, while demonstrating generally deplorable police practices, does nothing to show that Dialungana would be singled out for torture if removed to the Congo. Therefore, we do not find that the BIA abused its discretion in denying Dialunga-na’s motion to reopen. Further, to the extent that Dialungana argues that the BIA erred in its February 2004 decision, those claims are not properly before this Court. See Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (In reviewing the denial of a motion to reopen, court of appeals does not pass on the merits of the underlying exclusion proceedings).
For the foregoing reasons, we will deny the petition for review.3
. While the official caption identifies petitioner as “Dialingana,” we will refer to him as "Dialungana” per his request in his supplemental opening brief. (Appellant's Supp. Br. at 2.)
. Dialungana does not raise any arguments regarding ineffective assistance of counsel in his opening brief. Accordingly, this claim is waived. Singh v. Gonzales, 406 F.3d 191, 196 n. 5 (3d Cir.2005).
. On September 15, 2009, Dialungana filed a motion which we construed as a motion to stay his petition for review until the BIA ruled on a motion to reopen he filed on September 14, 2009. We granted the motion pending the BIA’s ruling. The BIA denied the motion to reopen'and our stay is now vacated. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478590/ | OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant-Defendant Ronald Kenner (“Kenner”) appeals the District Court’s finding that he violated the terms of his supervised release by committing a controlled substance crime; he claims the evidence is insufficient to support the court’s finding. He also appeals his sentence of thirty-six months’ incarceration as unreasonable. The Government asserts that the District Court did not err in finding, by a preponderance of the evidence, that Ken-ner committed the charged crime or in imposing the sentence. We agree with the Government.
I.
Because we write solely for the parties, we will address only those facts necessary to our opinion.
A grand jury indicted Kenner for possessing a firearm as a convicted felon on September 2, 1999, and Kenner was *283charged in a separate case with conspiracy and bank robbery on June 16, 2000. Ken-ner pled guilty to both crimes, and the judge presiding over his gun case granted Kenner’s motion to consolidate the cases for sentencing. Judge John R. Padova presided over the consolidated sentencing hearing. On June 21, 2001, Judge Padova sentenced Kenner to thirty-eight months’ imprisonment on each of the three counts, all terms to run concurrently. The court also imposed a sentence of five years’ supervised release on the bank robbery count and a sentence of three years’ supervised release on both the conspiracy and gun possession counts, also to run concurrently. The court ordered Kenner to pay restitution in the amount of $7,840.00 and a special assessment of $300.00.
Kenner was released from custody and placed on supervised release on May 17, 2004.1 On November 28, 2006, Judge Pa-dova found Kenner in violation of several terms of his supervised release sentence. The Judge modified the terms of Kenner’s supervised release to increase the monthly payments toward Kenner’s restitution obligation from fifty dollars a month to one hundred dollars a month.
On January 12, 2007, Kenner’s probation officer filed a petition alleging that Kenner violated the terms of his supervised release by committing several Grade C violations,2 including: (1) being arrested and charged for speeding and driving under the influence (“DUI”); (2) failing to report an arrest for DUI; (3) leaving the judicial district without permission from his probation officer; (4) failing to report for random drug testing; and (5) failing to notify his probation officer within ten days that he changed his residence. On July 12, the probation officer filed an amended violation notice, adding Kenner’s arrest for criminal conspiracy, drug possession, and possession with intent to manufacture, all Grade A violations.
At his initial violation hearing in December 2007, Kenner admitted to committing all of the Grade C violations except the DUI. Kenner also contested the drug arrests. At the revocation of supervised re*284lease hearing on January 8, 2008, Kenner opted not to contest the DUI arrest, but continued to contest the drug arrests.
The government offered the testimony of two officers as evidence that Kenner had violated the terms of his supervised release by possessing a controlled substance. Officer Planita testified that on May 29, 2007, he met with a confidential informant (“Cl”) who told him that a black male named “Ron”3 lived in the 2500 block of West Gordon Street and was selling large quantities of drugs.4 The Cl identified a black Chrysler parked near 2537 West Gordon Street as belonging to Ron.5 The Cl also claimed, incorrectly, that Ron owned a garage at 2421 West Gordon Street. Based on this information, Officer Planita arranged for the Cl to purchase a quarter pound of marijuana from Kenner the next day. On May 30, 2007, law enforcement searched the Cl for any contraband and gave him prerecorded money for the buy.
Officer Morales testified that he surveyed 2537 West Gordon Street on May 30, 2007, beginning at 2:00 p.m. Just after he arrived, he saw Kenner leave the residence, get into the black Chrysler identified by the Cl, and take the car to the gas station. A few minutes later, Kenner returned to the residence and entered by using a key. Officer Morales received information, sometime after 2:00 p.m., that the Cl called to Kenner requesting to purchase marijuana.6 Shortly thereafter, he saw Kenner leave the residence again and walk a few blocks to a garage at 2441 West Gordon Street. Kenner met the Cl on the street in front of the garage. Officer Morales saw them talking, but could not hear what they said. Then he saw them enter the garage.
Officer Morales left the area because he was concerned that he had been spotted. Officer Planita, who was on mobile surveillance near the garage, took over surveillance at that point. Officer Planita arrived after Kenner and the Cl had entered the garage. He saw a gold sport utility vehicle pull up outside the garage. The driver, later identified as George Mapp (“Mapp”), also entered the garage. Neither officer witnessed what happened inside the garage, nor are they aware if other people were inside the garage. Officer Morales testified that he returned to the area and witnessed the Cl leave the garage. At that point, the Cl met with Officer Planita and gave the police the quarter pound of marijuana he purchased inside the garage. Officer Planita could not remember if the Cl told him who sold him the marijuana.
On June 19, 2007, the officers executed three search warrants: (1) one at the garage, (2) one at 2537 West Gordon Street, and (3) one at 1922 North 23rd Street. Officer Planita testified that he helped search the 2537 West Gordon Street residence. When law enforcement executed the warrant, Kenner and two other people were present in the house. Kenner was sitting on a couch in the living room. During the search, law enforcement officers recovered marijuana in the dining room and the second upstairs bedroom. No one confirmed who used the upstairs bedroom. Officers also found one four-ounce packet *285of cocaine base in the residence, but Officer Planita could not recall where.
During the search, Kenner asked to speak to Officer Planita. Kenner asked if he could help himself by offering information about a stash of a large quantity of drugs and guns. Then, Kenner informed Officer Planita that there was a stash of drugs and guns at 1922 North 23rd Street. Immediately officers were sent to that address and detained Mapp, who was found at that location. Officer Morales testified that law enforcement searched the 1922 North 23rd Street premises and recovered $3,750.00 dollars in cash, five marijuana plants, a jar of marijuana, a jar of cocaine base, drug paraphernalia, and several assault rifles.
During the testimony, the District Court noted that the officers did not have any direct evidence that Kenner made any drug sales. Regardless, it found that “as a fact and ... as a matter of law, based on a preponderance of the evidence, even though there may have been some doubt, that [Kenner] violated the terms of his supervised release by illegally possessing controlled substances.” (Id. 78.)
The District Court acknowledged that the Sentencing Guidelines recommend a sentence of twenty-four to thirty months’ incarceration for violating his supervised release by possessing a controlled substance, but that the statutory maximum is thirty-six months incarceration. The court stated “that [Kenner is] an intentional, habitual violator of [his] terms of supervised release.” (Id. 83.) The court characterized Kenner’s violations as “egregious,” and noted that the recommended sentence would be appropriate in “ordinary circumstances.” (Id. 85, 86.) The court distinguished this case from ordinary circumstances because of Kenner’s habitual violations and revoked Kenner’s supervised release and reincarcerated him for the statutory maximum of thirty-six months. (Id. 85-86.)
II.
The District Court exercised jurisdiction under 18 U.S.C. § 3231 because Kenner was convicted of violating federal law in 1999 and 2000. The District Court had jurisdiction to decide whether Kenner violated the terms of his supervised release pursuant to 18 U.S.C. § 3583(e). This Court exercises jurisdiction over this appeal under 28 U.S.C. § 1291 and to review the sentence imposed on Kenner pursuant to 18 U.S.C. § 3742(a).
This Court reviews a district court’s decision to revoke supervised release for abuse of discretion. United States v. Maloney, 513 F.3d 350, 354 (3d Cir.2008). This .Court reviews the District Court’s factual findings for clear error, but conducts de novo review of its legal conclusions. Id. It reviews a district court’s sentence for violating supervised release for reasonableness. United States v. Bungar, 478 F.3d 540, 542 (3d Cir.2007).
III.
Kenner asserts that the evidence presented at his violation hearing was too specious to support the District Court’s finding, as a matter of fact and law, that the preponderance of the evidence indicates Kenner illegally possessed a controlled substance. The Government contends that the evidence was sufficient. We agree with the Government.
A district court must find that a defendant violated a condition of supervised release based on a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); Maloney, 513 F.3d at 354. When the condition at issue is whether the defendant committed a new crime, there is no conviction or indictment requirement. United States v. *286Poellnitz, 372 F.3d 562, 566 (3d Cir.2004). Rather, a court can revoke supervised release whenever it is “reasonably satisfied” that the defendant violated a condition. Id. This Court affords a district court “broad discretion” to find violations. Id. (quoting United States v. Gordon, 961 F.2d 426, 429 (3d Cir.1992)).
Kenner’s principal argument is that the District Court erred by finding that he had violated the terms of his supervised release because the evidence did not establish that he actually or constructively possessed a controlled substance. This argument is a tough fit because the concept of constructive possession is normally considered in the context of convictions, though it also extends to proceedings involving the violations of supervised release. See United States v. Blackston, 940 F.2d 877, 883 (3d Cir.1991) (finding circumstantial evidence of constructive possession is sufficient to prove possession in violation of supervised release). We have held that evidence is sufficient to establish constructive possession, beyond a reasonable doubt, if it proves
“an individual knowingly has both the power and the intention at a given time to exercise dominion and control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both dominion and control over an object and knowledge of that object’s existence.”
United States v. Cunningham, 517 F.3d 175,178 (3d Cir.2008) (citing United States v. Iafelice, 978 F.2d 92, 96 (3d Cir.1992)). Dominion and control are not established by “mere proximity to the [contraband], or mere presence ... where it is located.” United, States v. Garth, 188 F.3d 99, 112 (3d Cir.1999) (quoting United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993)). The fact that others had access to the drugs, however, does not diminish a finding of constructive possession. Id.
Kenner contends that the Government’s evidence merely established he was proximate to, rather than had any dominion and control over, the drugs recovered in this case by analogizing his circumstances to those in United States v. Jenkins, 90 F.3d 814 (3d Cir.1996) and United States v. Beverly, 750 F.2d 34 (6th Cir.1984). In Jenkins, this Court determined that evidence that a man was (1) in someone else’s apartment, (2) sitting on the couch, in his boxers, and (3) in front of a table where there were three bags of drugs was insufficient to support a finding that he had dominion and control over those drugs. 90 F.3d 814, 816 (3d Cir.1996). In Beverly, the Sixth Circuit determined that, considering the evidence in the light most favorable to the government, that a rational trier of fact could not conclude that a man had constructively possessed a gun based on the facts that (1) that he was sitting in someone else’s house, (2) two guns were found in the house, nearby him, in a wastebasket, and (3) his fingerprint was on one of the guns. 750 F.2d 34, 35-36 (6th Cir.1984). Kenner suggests that the facts offered in his case, like in Jenkins and Beverly, merely established that he was present where the drugs were found. Therefore, the evidence fails to prove constructive possession by a preponderance of the evidence.7
*287Kenner’s circumstances are distinguishable from both Jenkins and Beverly. The officer’s testimony establishes that, like the defendants in Jenkins and Beverly, Kenner was present where drugs were recovered on two occasions: (1) Officer Morales saw Kenner talk to the Cl and accompany the Cl into a garage where the Cl purchased marijuana, and (2) Kenner was inside the 2537 West Gordon Street residence where law enforcement recovered marijuana and cocaine base. Both the Jenkins and Beverly Courts, however, emphasized that evidence of presence was insufficient to prove constructive possession because there was no other evidence tying the defendants to the objects in question. Jenkins, 90 F.3d at 820-21 (emphasizing that there was no evidence except Jenkins’ proximity suggesting he participated in drug distribution); Beverly, 750 F.2d at 37 (noting the evidence “establishes only that Beverly was in the kitchen in Hatfield’s residence, that Beverly was standing close to the waste basket which contained two guns, and that Beverly had at some point touched one of the guns”).
In this case, the Government offered additional circumstantial evidence tying Kenner to drug possession or distribution, including: (1) the fact that the Cl identified Kenner as someone who was selling drugs from 2537 West Gordon Street; (2) the officers’ testimony that he saw Kenner meet the Cl shortly after the Cl placed a call to him requesting drugs; and (3) the surveillance of Kenner entering 2537 West Gordon Street with keys, which suggests he was a resident,8 and not merely present, at a premises where drugs were recovered. Because the circumstantial evidence in this case establishes more than Kenner’s mere presence near the recovered drugs, Kenner’s argument to the contrary fails.
Kenner also tries to analogize his case to another Sixth Circuit case, United States v. Stephenson, 928 F.2d 728 (6th Cir.1991). In Stephenson, the Sixth Circuit held that a probation officer’s testimony that a defendant was arrested for assault, and the defendant’s admission that “there was some pushing in there” was insufficient evidence, together, to establish that he had committed the crime of assault. Id. at 731. Kenner explains that by analogy, “the defendant’s presence at a scene where drugs were found, without anything else, was simply not enough to demonstrate that the defendant had broken the law.” (Appellant’s Br. 9.) This analogy is not' compelling, however, because the Stephenson Court did not comment on the sufficiency of the evidence related to constructive possession under the preponderance standard. In sum, the evidence proffered against Kenner is more compelling than that in any of the cases to which Kenner *288draws an analogy. Therefore, we are not persuaded by Kenner’s arguments.
Whether there is sufficient evidence to establish a violation is a factual question, which we review for clear error. Malo-ney, 513 F.3d at 354; Poellnitz, 372 F.3d at 565 n. 6. In a violation hearing, the evidence need only establish the violation by a preponderance of the evidence, i.e., whether the existence of a fact is more probable than non-existent. 18 U.S.C. § 3583(e)(3); Winship, 397 U.S. at 371, 90 S.Ct. 1068 (Harlan, J., concurring); Malo-ney, 513 F.3d at 354. We review, therefore, whether the District Court committed clear error by finding that the evidence established it was more probable than not that Kenner possessed a controlled substance. The District Court acknowledged that there was no direct evidence that Kenner possessed any drugs. (App. 53.) Regardless, it found as a matter of fact, “even though there may have been some doubt,” that the preponderance of the evidence established that Kenner illegally possess controlled substances. (Id. 78). The evidence establishes that a Cl identified Kenner as a drug distributor, Kenner resided at a house where drugs were found, that Kenner associated with a large drug distributor, and he responded to a Cl’s request for drugs. Because this evidence suggests that it is more probable than not that Kenner possessed a controlled substance, the District Court did not clearly err by finding Kenner possessed drugs. Therefore, we will affirm the District Court’s conclusion that Kenner violated his supervised release by possessing a controlled substance.
IV.
Kenner asserts that his thirty-six month sentence of incarceration for violating the terms of his supervised release is unreasonable. The Government contends that this sentence is reasonable and should be affirmed. We agree with the Government.
We review sentences imposed for violating the terms of supervised release for reasonableness. Bungar, 478 F.3d at 542 (noting that post -Booker, an appellate court reviews a sentence for reasonableness regarding the § 3553 factors, and this same standard should apply to revocation sentences). When imposing a sentence after revoking a defendant’s supervised release, the District Court, in accordance with 18 U.S.C. § 3583(e), must give reasonable consideration to the factors set forth in 18 U.S.C. § 3553(a) and must apply those factors to the factual circumstances of the case. It should also take into account, “to a limited degree, the seriousness of the underlying violation and the criminal history of the violator” and the policy statements under Chapter Seven of the Sentencing Guidelines. United States v. Dees, 467 F.3d 847, 853 (3d Cir.2006) (internal quotation marks and citation omitted).
To determine reasonableness, this Court considers whether the District Court gave meaningful consideration to the § 3553(a) factors and applied those factors to the circumstances of the case. Bungar, 478 F.3d at 543. Our review of the District Court’s application of the § 3553 factors to the factual circumstances in the case is “highly deferential”; we may not substitute our judgment for the District Court’s and must affirm if the final sentence is within the permissible range and was premised on appropriate judicious consideration. Bungar, 478 F.3d at 543.
Kenner argues that his sentence is unreasonable in light of the § 3553(a) factors. His main contention is that the District Court failed to adequately explain why imposing the statutory maximum sentence, thirty-six months’ of incarceration, more *289appropriately serves the goals of criminal law than a twenty-four to thirty month sentence of incarceration, as suggested by the Sentencing Guidelines. He further asserts that a thirty-six month sentence is greater than necessary to punish him.
The Sentencing Guideline ranges are merely advisory. United States v. Booker, 543 U.S. 220, 259, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Moreover, the District Court explained that under “ordinary circumstances” the guidelines range of twenty-four to thirty months would have been sufficient. (App. 86.) The District Court distinguished this case from an ordinary case, however, because Kenner is a “habitual offender, engaged in serious antisocial conduct ... [and had violated] the terms of his supervised release on multiple [occasions] over a significant period of time.” (Id. 85.) Contrary to Kenner’s assertions, the District Court did not act unreasonably in imposing a thirty-six month sentence because it expressly explained that under the § 3553(a) factors it was necessary to impose a greater sentence because Kenner needed more deterrence than the ordinary violator contemplated by the sentencing guidelines.
Kenner further challenges the District Court’s application of the § 3553(a) factors, claiming that the Court did not consider Kenner’s proffer of mitigating evidence that he had long-term employment. The District Court, however, heard evidence on this issue and acknowledged that Kenner was an “able, talented guy.” (Id. 80). Therefore, Kenner’s claim that the District Court did not consider this evidence is without merit.
Additionally, Kenner argued that the District Court erred because it improperly relied on the fact that Kenner had not fully repaid his restitution obligation. But paying restitution is a term of Kenner’s supervised release, which he admitted he violated. (See App. 82 (noting he paid seventy-five dollars a month rather than one hundred dollars a month and that he stopped paying when he absconded).) Because paying restitution was one of Kenner’s terms of supervised release, it was within the Court’s discretion to consider Kenner’s efforts in meeting this obligation.
Kenner did not challenge the District Court’s application of the other § 3553(a) factors. It is clear that the District Court considered the applicable guidelines range, and gave meaningful consideration to the relevant § 3553 factors before imposing Kenner’s sentence. Therefore, the court did not act unreasonably by imposing a thirty-six month sentence and we will affirm.
V.
We will affirm the District Court’s judgment that Kenner violated the terms of his supervised release by possession a controlled substance, and its sentence.
. Judge Padova imposed the general terms of supervised release on Kenner, which include, among others, that Kenner is prohibited from committing a subsequent crime in violation of federal, state, or local law for the duration of the sentence. 18 U.S.C. § 3583(d). He also imposed the following special conditions:
“1) The defendant shall provide the probation officer with access to any requested financial information; 2) The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer; 3) The defendant shall participate in a drug aftercare treatment program which may include urine testing at the direction and discretion of the probation officer; and, 4) The defendant shall pay restitution in the amount of $7,480, at the rate of $50 per month.”
(App. 8.)
. The Sentencing Guidelines set forth three grades of probation and supervised release violations:
“(1) Grade A Violations — conduct constituting (A) a federal, slate, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;
(2) Grade B Violations — conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;
(3) Grade C Violations — conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision.”
U.S. Sentencing Guidelines Manual § 7Bl.l(a) (2006).
. Kenner's first name is Ronald.
. Officer Planita testified that he ran a check on the 2537 West Gordon Street property but cannot remember who held title to the property. (App. 64.)
. Record checks confirmed that the black Chrysler identified by the Cl was registered to Kenner, but at a different address. (App. 70.)
. Officer Planita testified that he was present when the Cl allegedly called Kenner, but he could not hear the conversation.
. Kenner also argues that in Beverly the Sixth Circuit assessed the evidence tinder the preponderance of the evidence standard because it considered whether the District Court erred by denying the defendant’s motion for acquittal. Beverly, 750 F.2d at 35. Kenner is mistaken. A court considering a motion for acquittal reviews the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt. United States v. Coleman, 811 F.2d *287804, 807 (3d Cir.1987). Although this standard may be lesser than the reasonable doubt standard because a court is assessing whether a jury could find beyond a reasonable doubt rather than whether the evidence demonstrates guilt beyond a reasonable doubt, the standard is certainly higher than the preponderance standard which requires a trier of fact only believe an “existence of a fact is more probable than its nonexistence.” In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)(Harlan, J., concurring). As a result, the analogy to Beverly is hard a fit because the court was assessing the evidence under a different evidentiary standard than that at issue in this case.
. We determined that evidence that a person had a key to a residence where drugs were found, but is not on the lease, without more, is insufficient to establish that the person had constructive possession over the any drugs found in the house. United States v. Brown, 3 F.3d 673, 681 (3d Cir.1993). The Government offered additional evidence tying Ken-ner to drug distribution beyond Kenner’s residence at 2537 West Gordon Street, thus, Kenner's case is distinguishable. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478592/ | OPINION
MICHEL, Circuit Judge.
Hubert Dorcant (“Dorcant”) was convicted in a jury trial of a total of sixteen counts of immigration fraud-related offenses: (1) eight counts of presentation of false immigration documents in violation of *29118 U.S.C. § 1546(a); (2) five counts of mail fraud in violation of 18 U.S.C. § 1341; and (3) three counts of making false statements in violation of 18 U.S.C. § 1001. Dorcant now appeals the district court’s imposition of a forty-one month prison sentence upon each count, to be served concurrently, as well as a three year term of supervised release for each count, likewise to be served concurrently. We will affirm the sentence imposed by the district court.
I.
We review the sentence imposed by the district court for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). We conduct that review for abuse of discretion in two stages. Tomko, 562 F.3d at 567. First, we ensure that “the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, ... or failing to adequately explain the chosen sentence^]” Id. Second, if the district court committed no procedural error, we consider the sentence’s substantive reasonableness. Id. Our review for substantive reasonableness is “highly deferential.” Id. at 568 (quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir.2007)). In other words we will affirm the district court’s sentence “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.
Following a twelve-day trial, the jury returned a verdict of guilty on all sixteen counts on November 7, 2008. On December 29, 2008, the United States Probation Office (the “Probation Office”) submitted its Presentence Report (“PSR”), employing the 2008 edition of the United States Sentencing Guidelines (“the Guidelines”). Pursuant to the Guidelines, the Probation Office grouped counts 1-8 (presentation of false immigration documents) and counts 14-16 (making false statements) together as Group One and counts 9-13 (mail fraud) together as Group Two. U.S.S.G. § 3D1.2(b). The PSR then calculated that the base offense level for Group One was 11 (U.S.S.G. § 2L2.1(a)) with a six-level increase because the offense involved between 25 and 99 fraudulent documents (U.S.S.G. § 2L2.1(b)(2)(B)), resulting in a total offense level of 17. The base offense level for Group Two was 7 (U.S.S.G. § 2Bl.l(a)) to which was added a six-level increase because the total loss to the victims was more than $30,000 but less than $70,000 (U.S.S.G. § 2Bl.l(b)(l)(D)), resulting in a total offense level of 13.
A multiple-count adjustment increase of 2 was added to the adjusted offense levels of Groups 1 and 2, resulting in a total offense level of 19. (U.S.S.G. § 3D1.4). After calculating that Dorcant had a criminal history category of II, the PSR calculated that the Guidelines advisory sentence range was 33 to 41 months’ imprisonment.
On January 21, 2009, the district court held a sentencing hearing. At the hearing, Dorcant’s attorney argued for a downward departure from the Guidelines, seeking house arrest in lieu of incarceration. However, the court rejected the defense counsel’s arguments and, after rejecting the government’s request for a two-level enhancement for obstruction of justice, ultimately adopted the recommendation of the PSR. The court sentenced Dorcant to 41 months imprisonment upon each count, a sentence at the upper limit of the calculated Guidelines’ range, to run concurrently, followed by three years supervised release. The district court entered judg*292ment on January 23, 2009 and Dorcant timely appealed.
II.
In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), this court made explicit the three-step process that the district courts of this Circuit must follow subsequent to the Supreme Court’s ruling in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). First, the court must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. Secondly, they must formally rule on the motions of both parties and state for the record whether they are granting a departure and how that departure affects the Guidelines calculation, taking into account our Circuit’s pre-Booker case law, which continues to have advisory force. Thirdly, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose, regardless whether it varies from the sentence calculated under the Guidelines. U.S. v. Jackson, 467 F.3d 834, 837 (3d Cir.2006).
Dorcant does not attack the calculation of the sentence proposed by the Guidelines, nor were there any formal motions for a Guidelines departure prior to, or at, the sentencing hearing. Consequently, it is with respect to the third requirement that Dorcant accuses the district court of error. Specifically, Dorcant argues that the district court made two errors in sentencing him to 41 months imprisonment: (1) the court abused its discretion in presuming that a sentence within the Guidelines was reasonable in this case; and (2) the court failed to give meaningful consideration to at least one of the sentencing factors prescribed by 18 U.S.C. § 3553(a), viz., the need to avoid unwarranted sentencing disparities among similarly-situated defendants.
With respect to the first issue on appeal, Dorcant contends that because the district court judge did not articulate a reason why he felt that a within-Guidelines sentence was appropriate for Dorcant’s offense, and because the judge likewise did not articulate a reason for refusing to accept defense counsel’s suggestion of a sentence of home arrest in place of a term of incarceration, then the judge must have implicitly made an impermissible determination that the Guidelines’ sentence range of 33 to 41 months’ imprisonment was presumptively reasonable.
However, this Circuit has recognized that those sentences that are within the Guidelines’ range are more likely to be reasonable than those that fall outside the range. United States v. Cooper, 437 F.3d 324, 331 (3d Cir.2006). Although we have declined to give all Guidelines sentences a rebuttable presumption of reasonableness, the Supreme Court in Rita v. United States, decided that such a presumption, while not mandated, is not impermissible. 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
During the sentencing hearing, the district judge related his reaction to the evidence presented at trial that immigration fraud, such as that practiced by Dorcant, was widespread and he rejected the defense counsel’s argument that Dorcant’s acts were merely pushing at the edge of poorly defined law:
I know, but you see in all of that, it’s also intention. It’s not a situation, I don’t think, where you can successfully argue anyway to me that what [Dorcant] did was the result of inadvertence or misapprehension of the law. It was willful, deliberate acts, as the jury found, from copious evidence. Let’s put it that way, copious evidence.
*293Tr. at 6, 11. 6-11. Moreover, he rejected Dorcant’s attorney’s arguments that, because Dorcant acted as the caregiver for his children, including a daughter with a possible diagnosis of epilepsy, a sentence limited to home confinement was reasonable. On this point, the district judge observed that:
[T]he child was under his care and guid- . anee when he was committing these crimes. What does that mean? It means I am not impressed by people coming down talking about the need for the child of the parent when he willfully committed these crimes while the child was under his care.
Tr. at 8, 11. 6-10. Moreover, the district judge noted that: “His problems don’t take him outside the mainstream of what happens when a parent is convicted of a crime. And why I say that is because our Circuit has dealt with this quite extensively.” Tr. at 9,11. 10-13. The district judge also noted that, even were he to impose an extensive sentence of house arrest in lieu of imprisonment, Dorcant, as a resident alien, still faced possible deportation after the sentence was expired, a situation over which the district judge had no control.
We cannot say that the sentence imposed by the district court was an abuse of its discretion in this respect. In addition to noting the duration of the sentence proposed under the Guidelines, the district judge noted the widespread evasion of immigration laws that was proven by the evidence in this case, the willfulness of Dorcant’s criminality, and the fact that he persisted in his illegal acts while having the contemporaneous responsibility for his childrens’ care and guidance. The district judge carefully considered the arguments of Dorcant’s attorney, but was unpersuaded that they made a cogent case for the downward departure that she requested for Dorcant.
Dorcant next argues that the district court erred procedurally in imposing the 41-month Guideline sentence because it failed to give appropriate consideration to the § 3553(a) sentencing factors. Specifically, Dorcant contends that the court failed to establish that the sentence imposed recognized the need to avoid unwarranted sentencing disparities among similarly-situated defendants. At the sentencing hearing, Dorcant’s attorney did not point to any similarly-situated defendants to suggest that the district judge’s imposition of a Guidelines sentence was unreasonably severe or disproportionate, nor did she suggest any details of how the district court’s sentence prejudiced Dorcant in this regard.
This argument of Dorcant’s also fails. We do not require a lengthy or complete exegesis of sentencing law; a brief discussion is sufficient, particularly in those cases in which the district court “apparently determined that [a] defendant’s arguments were simply insufficient to warrant a below Guidelines sentence.” United States v. Olfano, 503 F.3d 240, 245 (3d Cir.2007). In this case, the district judge pointed to the widespread violation of immigration laws and the intentionality underlying Dorcant’s criminal acts. Moreover, he explicitly pointed to the cases of other similarly-situated parents facing imprisonment:
We even have a story of a single mother of six children being denied relief because she claimed her imprisonment would deprive those six children of her care. And the Court did not believe that that was sufficient to take her out of the mainstream of what occurs to parents when they commit crimes while they still have dependent children or others dependent upon them.
That’s why I raise the issue about what he talks about [his] child now. But that *294child was growing up when he was willfully committing that of which he was convicted by this jury.
Tr. at 9,11.14-24.
In this instance, the district judge explicitly explained to Dorcant why his situation, compared with other defendants similarly-situated with respect to their family situation, did not warrant a below-Guidelines sentence. As such, we find that the district court did not abuse its discretion in imposing a sentence within the Guideline range.
In summary, our review of the record reveals that the District Court did not abuse its discretion in imposing a sentence that was within the Guideline range. Consequently, we will affirm that sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478594/ | *295OPINION OF THE COURT
NYGAARD, Circuit Judge.
I.
Appellant Gregory Williams was convicted by a jury of first degree murder' and related charges involving assault and illegal use of weapons. Judge I’ve Arelington Swan presided and Williams was sentenced to life in prison without parole.
Williams appealed his conviction to the District Court for the Virgin Islands. His appeal was heard by a three-judge panel of that court’s appellate division (Judges Gomez, Finch and Steele1). He challenged the sufficiency' of the evidence and argued that comments made by the trial judge deprived him of a fair trial. The District Court affirmed Williams’ conviction and he has timely appealed. Because we conclude that the trial judge’s comments so infected the trial, and his attempts at a curative instruction were too little, too late, and could not purge the injustice, we will reverse and remand for a new trial.
II.
We have held that “no person [may] be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” Wang v. Attorney General, 423 F.3d 260, 269 (3d Cir.2005) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980)). That assurance is absent — and judicial conduct improper— whenever a judge appears biased, even if he actually is not biased. See In re Antar (SEC v. Antar), 71 F.3d 97, 101 (3d Cir. 1995). Public confidence in the judicial system turns on “the appearance of neutrality and impartiality in the administration of justice.” LaSalle Nat’l Bank v. First Conn. Holding Gr., LLC XXIII, 287 F.3d 279, 292 (3d Cir.2002). Thus, even if the trial judge here was not actually biased — and we do not speculate as to his state of mind — the “mere appearance of bias” on his part “could still diminish the stature” of the judicial process he represents. See Clemmons v. Wolfe, 377 F.3d 322, 327 (3d Cir.2004). In other words, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 13, 75 S.Ct. 11, 99 L.Ed. 11 (1954); see also Peters v. Kiff, 407 U.S. 493, 502, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). On this record, such an appearance was not satisfied.
III.
The bias of the trial judge here centers on comments he made during the cross examination of a prosecution witness. Raymond Smith was an eyewitness to the murder. He had given a statement to the police describing the perpetrator as “[h]e was like five ten, like 150 to 170, had on a black, black and white plaid shirt and he had a low haircut.” Smith also admitted at trial that he had been smoking marijuana before his encounter. He testified that “the weed does — don’t affect you mentally — it just give you a natural high.” He also acknowledged that he saw the gunman for a “split second” and then never saw him again.
When defense counsel attempted to challenge Smith’s ability to identify Williams given the fact that he was enjoying his “natural high,” counsel was admonished by the trial judge who made the following comment in the presence of the *296jury, and while sustaining an objection by the prosecution:
But get to the — get to the perception. Because I’ll tell you something. There’s a lot of people I does smell that they be smoking, smoking thing, as you pass the cars, and they’re better drivers than a lot of these other people on the road that just can’t drive.
Judge Swan continued with additional commentary:
So, my policies might be different from all the other judges. But, then again, I have been here longer than all the other judges. I’m the most senior associate judge so I don’t — I have been doing this for a long time and nobody has ever found fault with it. So I don’t follow the young folks. I go with my own policy. I’ve been around longer than all of them. Three of them put together don’t have as much years as I have. So, I have my own policy.
In United States v. Olgin, 745 F.2d 263 (3d Cir.1984), we set out the appropriate analysis for courts to use in assessing the propriety of a trial judge’s comments before the jury. We explained that “[tjhere is no bright line separating remarks that are appropriate from remarks that may unduly influence a jury”. Id. at 268-69. This analysis requires a balancing of the following four factors: (1) the materiality of the comment, (2) its emphatic or overbearing nature, (3) the efficacy of any curative instruction, and (4) the prejudicial effect of the comment in light of the jury instruction as a whole. Id.
A. Materiality
Here, the trial judge’s comments occurred during the cross-examination of Raymond Smith. Defense counsel asked Smith whether he had been smoking marijuana before the shooting. Raymond Smith replied in the affirmative. The prosecutor objected on grounds of relevancy. Defense counsel responded that Raymond Smith’s testimony about whether he had been smoking marijuana was relevant to show his ability to perceive the shooting. The trial judge sustained the objection, explaining his ruling with the aforementioned comments, in the presence of the jury.
We have no difficulty finding his comments material. The trial judge’s comments not only improperly bolstered a witness’s testimony, but impacted directly on the presentation of Williams’ defense. Defense counsel attempted to discredit Smith’s testimony by pointing to Smith’s own admission that he was high on marijuana when he saw the gunman. We have no doubt that the trial judge’s statement could be viewed by the jury as vouching for Smith’s testimony and supporting his ability to identify the gunman.
B. Emphatic and Overbearing Comments
In United States v. Gaines, we discussed the limitations on the court’s power to comment on the evidence:
Unquestionably, any comment by a trial judge concerning the evidence or witnesses may influence a jury considerably, and emphatic or overbearing remarks particularly may be accepted as controlling, thus depriving a defendant of his right to have questions of fact and credibility determined by the jury. If the judge exercises restraint in his comments, however, and makes it clear in his charge that the jury remains the sole determiner of credibility and fact, he has not overstepped the permissible limits of comment.
450 F.2d 186, 189 (3d Cir.1971). We conclude that the trial judge’s unsolicited opinion concerning the witness and the use of marijuana was made in an overbearing *297or emphatic manner. First, the trial judge made this comment while sustaining the prosecutor’s objection:
[DEFENSE ATTORNEY]: Your eyes get red when you’re smoking weed?
[RAYMOND SMITH]: Yes.
Q: Does it affect your ability to move?
A: No, sir.
Q: Can you — do you drive a car?
A: Yes, sir.
Q: Can you drive a car the same when you’re not on weed as when you’re on weed?
[PROSECUTOR]: Objection, Your Hon- or. They don’t have an expert.
[DEFENSE ATTORNEY]: I’m trying to see how it affects him.
THE COURT: But get to the — get to the perception. Because I’ll tell you something. There’s a lot of people I does smell that they be smoking, smoking thing, as you pass the cars, and they’re better drivers than a lot of these other people on the road that just can’t drive.
This comment took place while the trial judge was ruling on an' objection. The judge spoke emphatically (“But, let me tell you something ...”) in sustaining the prosecutor’s objection, and in so doing, came very close to implicitly dismissing an important part of the defense’s case in the eyes of the jury. Second, in attempting to impress the jury with his reputation as a jurist, the trial judge’s further comments touting his trial experience and longevity is overbearing and compounded the error. Such extemporaneous commentary by the trial judge deprived Williams of his right to have questions of fact and credibility determined by the jury.
C. Efficacy of any Curative Instruction
The trial judge made an attempt to cure the error by an instruction to the jury. He said:
Anything that I have said in terms of marijuana, that is — I’m going to order that stricken from the record. What that means is that in your consideration of this ease, you’re not to consider anything whatsoever that I mentioned about marijuana. Only what the witnesses said from the witness stand.
Given our previous findings of the materiality and forcefulness of the trial judge’s statements, we do not find his instruction sufficient to mitigate any prejudice against Williams. First, the trial court’s instruction was not given at the time of the objection, or even in close proximity thereto. Second, the trial court’s curative instruction was too vague in that it only told the jurors to “disregard anything I have said in terms of marijuana.”
D. Totality of the Instruction
The true impact of the trial courts’s statement was that it supported the testimony of a prosecution eyewitness to the murder — an eyewitness the defense was attempting to challenge as unreliable. The trial judge further compounded the difficulty presented by this comment when he emphasized his experience and judicial superiority over the other members of the bench who, presumably, would not have said what he said regarding the use of marijuana. Given the permeating and prejudicial nature of the trial judge’s comments, we .find this to be one of those cases where “the trial judge’s comments are so out of bounds that no cautionary instruction to the jury could remove their prejudicial effect.” Olgin, 745 F.2d at 268-69.
*298E. Balancing the Comments against the need for reversal
We conclude that the scales tip sharply in favor of reversing Williams’ conviction and remanding this matter for a new trial.
IV.
The trial judge’s comments here deprived Williams of a fair trial. We will reverse his conviction and sentence and remand this case for a new trial.
. The Honorable Patricia D. Steele, Judge of the Superior Court, Division of Saint Croix, sitting by designation. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478729/ | OPINION
PER CURIAM.
Dorival Luis Da Silva, a citizen of Brazil, entered the United States without inspection on March 28, 1988. The Government served him with an order to show cause the very next day (March 29, 1988). When Da Silva did not appear for his hearing before an Immigration Judge (“IJ”) the following August, the order to show cause was returned to the agency and his case was administratively closed.
In February 2006, Da Silva, represented by counsel, moved to recalendar proceedings so that he could “apply for cancellation of removal.” R. 97. Da Silva, with his counsel, first appeared before the IJ in April 2006, and conceded the charge of removability. His counsel indicated that Da Silva wished to seek cancellation of removal or suspension of deportation, but he did not present an application. At that time, the IJ notified Da Silva’s counsel that he was to present “[a]ny and all applications” at the next appearance or “they[ ] [would] be abandoned.” R. 50.
Subsequently, Da Silva, through his counsel, filed an application for suspension of deportation (not cancellation of removal) and an application for voluntary departure. He appeared before the IJ in May 2007 without having filed any documents in support of his suspension application. The Government opposed the application because Da Silva, who received an order to show cause one day after his entry into the United States, did not accrue the seven *291years of continuous presence necessary to qualify for suspension of deportation (under the stop-time rules). Da Silva’s counsel’s response was to register surprise at the Government’s position and to suggest that, had he known sooner, he would have requested that the Government “repaper” Da Silva so that he would be eligible for cancellation of removal.1 The IJ stated on the record that he was denying a request for a continuance, to the extent that Da Silva’s counsel could be seen to be requesting one. The IJ then denied the suspension application because Da Silva could not show the requisite seven years of continuous presence in the United States. The Board of Immigration Appeals (“BIA”) dismissed Da Silva’s subsequent appeal.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We exercise plenary review over the legal question Da Silva raises, see Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002), namely whether the IJ violated his due process rights by declining to continue his case.
Upon review, we conclude that Da Silva’s due process rights were not violated in the agency proceedings. First, it is not even clear that Da Silva’s counsel requested a continuance at Da Silva’s merits hearing. To the extent that he requested a continuance, the denial of the continuance was not a due process violation. As the BIA emphasized, the burden was on Da Silva to prove that he was eligible for suspension of deportation. He, or rather, his counsel, should have realized long before the Government brought it to his attention that Da Silva was not eligible for suspension of deportation. As the IJ noted, it is well established that the service of an order to show cause stops the accrual of time that counts toward the necessary seven years of continuous presence for suspension eligibility. See In re Nolasco-Tofino, 22 I. & N. Dec. 632, 635 (BIA 1999). A 10-day or two-week period for response to the Government’s argument would not have changed the facts of his case (or the choice of seeking relief for which Da Silva was not eligible).
Da Silva also makes the argument that he would have sought repapering if given more time. Although the BIA stated that there is no evidence in the record that Da Silva has a qualifying relative for cancellation, there is his self-reported information that he has two children who are United States citizens. R. 80. However, there is no evidence in the record that otherwise supports his assertion that he would have been granted cancellation of removal if his case had been repapered. See 8 U.S.C. § 1229b(b)(l)(D) (requiring a showing “that removal would result in exceptional and extremely unusual hardship” to a United States citizen child). Also, as the BIA noted, there appears to have been no effort by his counsel to have the case repapered, even while the case was on administrative appeal. Moreover, there is no indication that the Government would be willing to repaper the case. For these reasons, the BIA was not wrong when it concluded that Da Silva could not show prejudice from any denial of a continuance. See Khan v. Attorney Gen. of the United States, 448 F.3d 226, 236 (3d Cir.2006) (holding that a petitioner cannot show prejudice when he presents only a speculative possibility that he could be found eligible to remain in the country). In the absence of prejudice, there is no due pro*292cess violation. See Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir.2003).
For these reasons, we will deny the petition for review.
. Repapering is the process by which the Government terminates the order to show cause and issues a new notice to appear in cases which are not administratively final. See Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247 n. 4 (3d Cir.2005). As Da Silva explains, in his case repapering would serve to change the date that would interrupt Da Silva's presence in the United States. Appellant's Br., 8 n.l. If the date were changed, he potentially would be eligible for cancellation of removal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478731/ | OPINION
AMBRO, Circuit Judge.
Michael Kyereme pled guilty to mail fraud and tax evasion in July 2008. He now challenges the District Court’s sentence of 59 months’ imprisonment, arguing that the District Court erred in applying a two-level upward adjustment under § 3B1.3 of the Sentencing Guidelines. We affirm.1
*293I.
Kyereme was an independent contractor hired to provide information technology (“IT”) support to the City of Newark, New Jersey. As an independent contractor, Kyereme assisted Newark employees with computer-related problems. When Kyer-eme could not resolve a computer problem, he was authorized to communicate with Cisco Systems, Inc. (“Cisco”) for additional technical assistance and, if necessary, to request replacement parts for the City’s computers.
From 2002 through 2007, Kyereme falsely reported to Cisco that large numbers of computer parts were malfunctioning and required replacement. When Cisco sent replacement parts, however, Kyereme failed to return many of the allegedly inoperable parts. When he did return parts to Cisco, they were different Cisco parts or parts from other computer companies, all of which were of lesser value than the replacement parts. Kyereme sold the fraudulently obtained Cisco parts to computer resellers outside of New Jersey. His fraudulent scheme resulted in losses to Cisco of more than $4,000,000.
In July 2008, Kyereme pled guilty to one count of mail fraud (in violation of 18 U.S.C. § 1341) and one count of tax evasion (in violation of 26 U.S.C. § 7201). The District Court determined that Kyer-eme’s offense level was 25, which included a two-level upward adjustment pursuant to U.S.S.G. § 3B1.3 because Kyereme “used a special skill[] in a manner that significantly facilitated the commission or concealment of the offense [.]”2 With a criminal history of category I, his Guidelines range was 57 to 71 months’ imprisonment. The Court sentenced Kyereme to 59 months’ imprisonment, and he timely appealed.
II.
Although the Sentencing Guidelines are now advisory, district courts must still correctly calculate the Guidelines range at the first step of our Court’s post-Booker sentencing procedure. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). “[A] sentencing court is required to make two findings before imposing an upward adjustment for use of a special skill [under U.S.S.G. § 3B1.3]: ‘(1) the defendant possesses a special skill; and (2) ... used it to significantly facilitate the commission or concealment of the offense.’ ” United States v. Bond, 581 F.3d 128, 140 (3d Cir.2009) (quoting United States v. Batista De La Cruz, 460 F.3d 466, 468 (3d Cir.2006)) (second alteration in original). We review a district court’s interpretation of the Guidelines de novo, including whether a defendant possesses a “special skill” within the meaning of § 3B1.3. See United States v. Urban, 140 F.3d 229, 234 (3d Cir.1998). We review a district court’s finding that a defendant used a special skill “in a manner that significantly facilitated the commission or concealment of the offense” for clear error. See Bond, 581 F.3d at 141; Batista De La Cruz, 460 F.3d at 468.
III.
First, we agree that Kyereme has a “special skill” within the meaning of § 3B1.3. See U.S.S.G. § 3B1.3 cmt. n. 1 (a “special skill” is one “not possessed by *294members of the general public and usually requires] substantial education, training or licensing”). Kyereme holds an undergraduate degree in information systems, a masters of science degree, and an MBA. He has completed numerous computer and network -training courses, and holds several professional licenses, including certifications as a Cisco Network Associate and a Microsoft Systems Engineer. Finally, Kyereme has been employed in the IT field since 1991, including as a computer engineer, project manager, IT manager, senior engineer, network engineer, and implementation engineer. See Urban, 140 F.3d at 236 (section 3B1.3 is “applicable to a person who has developed a special skill through ... his or her work experience”). Thus, contrary to Kyereme’s suggestion, his knowledge of computers and systems management cannot be equated with that of a typical computer user. Cf. United States v. Lee, 296 F.3d 792, 794-95, 799 (9th Cir.2002) (defendant who created an internet website to obtain registration fees for a phony event did not possess a “special skill,” where the defendant simply copied and pasted “scripts” from a legitimate website to create the phony website).
Kyereme’s central complaint is that he did not “use[ ]” a special skill “in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. In particular, he notes that (1) he did not identify himself as a Certified Cisco Network Associate when he requested replacement computer parts (thus, Cisco purportedly did not rely on his certification in approving the shipments of replacement parts); and (2) he typically used email, “the most rudimentary computer skill,” to request replacement parts from Cisco. Accordingly, Kyereme contends that any City of Newark employee could have committed a similar fraudulent scheme, regardless of his or her technical knowledge of Cisco’s products.
We disagree. As the District Court found, Kyereme’s technical knowledge of computers and Cisco products significantly facilitated his crimes by: (1) making his requests for replacement parts credible {e.g., by using technical language to describe fabricated problems with computer parts); and (2) allowing him to identify the types of parts that “might routinely break down” and to “group parts that are breaking down,” thus avoiding suspicion by Cisco. The fact that Kyereme communicated with Cisco by email, and that he did not identify himself as a Certified Cisco Network Associate when requesting replacement parts, even cumulatively does not render the Court’s findings clearly erroneous. As Cisco’s representative testified at sentencing, to become certified as a Cisco Network Associate, an individual must pass examinations to “demonstrate a level of technical proficiency with [Cisco] products,” including their configuration and design. And, as the Court explained, Kyereme’s familiarity with and technical knowledge of Cisco products “permitted him to talk the talk and be afforded the credibility he was afforded by Cisco personnel,” thereby facilitating the commission and concealment of his fraud.3
For the foregoing reasons, we affirm Kyereme’s sentence.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742.
. The District Court determined that the two-level upward adjustment was also warranted because Kyereme "abused a position of public or private trust." U.S.S.G. § 3B1.3. Because we agree that he used a special skill to facilitate significantly the commission and/or concealment of his crimes, we need not address this alternative basis for the § 3B1.3 adjustment.
The District Court also denied Kyereme’s request that the mail fraud and tax evasion counts be grouped pursuant to U.S.S.G. § 3D 1.2(c). He does not challenge that ruling on appeal.
. For example, in one email request to Cisco, Kyereme wrote: "Problem Details: 7600-SIP-600 not responding/dead. Has been deactivated/reactivated and even reseated. 6513 chasi has also been rebooted still no good need RMA." As a Cisco representative testified at sentencing, she understood this message to indicate that Kyereme had already taken steps to troubleshoot the problem (to no avail, of course, thus necessitating a replacement part). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478733/ | OPINION OF THE COURT
ALDISERT, Circuit Judge.
John Douglas Parker appeals from an order of the District Court of the Eastern District of Pennsylvania imposing a sentence of 228 months’ imprisonment followed by five years of supervised release, along with a special assessment of $200 and restitution of $1859. Parker argues that his career offender sentence is substantively unreasonable and that the District Court failed to meaningfully consider the required 18 U.S.C. § 3553(a) factors and Parker’s request for a below-guidelines sentence in light of the staleness and minor nature of the crimes triggering his “career offender” designation. We conclude that the District Court did not abuse its sentencing discretion, and we will affirm.1
I.
Because we write only for the parties, we will discuss only the relevant legal precepts and only those facts relating thereto.
*296On September 9, 2008, Parker was indicted in the Eastern District of Pennsylvania on two counts of armed robbery, in violation of 18 U.S.C. § 2113(d). Parker pled guilty in December of 20082, and he was sentenced on June 8, 2009. The armed robberies were committed on May 24, 2008 and June 5, 2008 in Allentown and Easton, Pennsylvania. In both robberies, Parker brandished a knife and gave the teller a note claiming he had a gun pointed towards her. The Presentence Investigative Report (“PSR”) set Parker’s offense level at 31 with a criminal history category of VI, generating a 188-235 month range. This range reflects the career offender enhancement. Parker filed a timely notice of appeal on June 25, 2009.
II.
We review the District Court’s sentencing for abuse of discretion. United States v. Wise, 515 F.3d 207, 217-218 (3d Cir.2008). Our review is two-fold. We review for procedural error under the abuse-of-discretion standard, ensuring the sentencing court gave meaningful consideration to the relevant 18 U.S.C. § 3553(a) factors. Id. at 217. With respect to procedural reasonableness, the sentencing court need not “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). We then review the substantive reasonableness under an abuse-of-discretion standard. Id. at 218. This final step is very deferential as we “recognize that the trial court is in the best position to determine the appropriate sentence.” United States v. Greenidge, 495 F.3d 85, 102 (3d Cir.2007). To review for substantive reasonableness, we engage in “a deferential review of the record developed by the district court to determine whether the final sentence, wherever it may lie within the permissible statutory range, was premised upon appropriate and judicious consideration of the relevant factors.” United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.2006). The party challenging the sentence bears the burden of proving its unreasonableness. Cooper, 437 F.3d at 332. We require district courts to set forth sufficient reasoning to satisfy us that they have “considered the parties’ arguments and [have] a reasoned basis for exercising [their] legal decision making authority.” United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).
III.
Parker challenges his sentence as substantively flawed, arguing the Guidelines sentence was greater than necessary to meet the statutory goals of sentencing. He argues that the District Court did not adequately weigh the convictions triggering the career offender enhancement — two petty “street-level” drug sales and a robbery, all of which occurred more than 15 years prior to the sentencing here. Parker argues that under the so-called “parsimony provision,” a sentence must be “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a). He contends that the District Court should have weighed the antiquation of his past convictions, and he emphasizes that the goal of career offender sentencing — “incapacitation to protect the public from additional crimes by the offender” — is best served by a lesser sentence in his case. (Appellant’s Br. 11.) *297Parker makes no additional arguments regarding the § 3553(a) factors.
Parker has a substantial criminal record. In 1985, Parker was convicted of three gunpoint robberies. After serving several years in prison, he was released on parole, which was subsequently revoked. PSR ¶¶ 53-59. In 1990, Parker was convicted of attempted robbery for a home invasion in which a woman suffered a facial injury. After serving several years in prison, he was released on parole, which was subsequently revoked. PSR ¶¶ 62-65. In 1993, Parker was convicted of two cocaine distribution felonies. After serving at least seven years in prison, he was released on parole, which was subsequently revoked at least twice, resulting in several more years of incarceration. PSR ¶¶ 62-67. In both 2005 and 2006, Parker was convicted of misdemeanor theft. In 2007, Parker was convicted of criminal possession of a weapon. PSR ¶¶ 78-79.
Parker’s sole contention at sentencing3 was that his undisputed status as a career offender should be mitigated because his prior qualifying convictions were minor drug convictions from 1993. The District Court engaged in a lengthy and thorough explanation of its sentence. (App.73-90.) The Court took note of Parker’s long criminal history and observed that these crimes were both serious and “not out of the ordinary for this defendant, who has made crime a way of life since his youth.” (App.73, 75.) The Court acknowledged the purpose of deterring others, as well as Parker himself, from such serious criminal conduct. (App.80.) The District Court was not pleased with Parker’s attempt to downplay his crimes, noting that he “underplayed his role in these offenses,” and that one of the victims was “indeed terrorized by the defendant’s actions.” (App.77.) The Court noted that Parker’s combined criminal history points exceeded the amount needed to achieve the highest possible criminal history score under the Guidelines. (App.76.) The judge recognized the seriousness of the sentence imposed, calling it “considerable time,” but ultimately determined that “a lesser sentence would depreciate the seriousness of this crime and would not adequately promote respect for the law, nor would it provide just punishment.” (App.79-80.) The District Court did acknowledge the age of Parker’s criminal history, but drew an entirely different inference from it, finding the record to clearly depict Parker as a career recidivist, who had “chosen to lead a criminal lifestyle[.]” (App.73-74.)
The District Court’s explication of the sentence evinced sufficient consideration of the relevant § 3553(a) factors, and Parker has not carried his burden of showing the sentence was unreasonable under this statutory framework. No procedural error was committed. In our review for substantive reasonableness, we must ensure the sentence “was premised upon appropriate and judicious consideration of the relevant factors.” Schweitzer, 454 F.3d at 204. The District Court clearly considered Parker’s arguments with regard to his career offender status. The Court acknowledged Parker’s long history of criminal activity as well as frequent parole violations, noting the public will be further protected from Parker during his supervised release because a revocation of probation will result in up to ten more years of incarceration under the imposed sentence. (App. 80 (stating that “history suggests” that Parker will again violate parole).) The judge acknowledged the serious nature of the crimes committed and expressed concerns about Parker’s at*298tempt to downplay them. The Court was aware of the severity of the sentence but determined it was necessary for the goal of deterring criminal conduct. The District Court gave due regard to Parker’s arguments at sentencing, and we cannot say the District Court’s upper-Guidelines sentence was substantively unreasonable in light of the seriousness of the charge, the effect on the victims, and Parker’s long history of criminal activity and parole violations.
* :¡: * * * ❖
We have considered all the contentions presented by the Appellant and conclude that no further discussion is necessary.
The judgment of the District Court will be affirmed.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
. Parker's brief states that he pled guilty on December 29, 2008. The Government's brief states that Parker pled guilty on December 23, 2008. (Appellee's Br. 3; Appellant’s Br. 4.)
. He did not protest the Guidelines calculation set forth in the Presentence Investigation Report. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478735/ | OPINION
SLOVITER, Circuit Judge.
Before us is the appeal of James O’Neal-Sloane from the District Court’s order denying his motion seeking a reduction in his sentence. The District Court rejected his motion for a reduction under Amendment 706 to the Sentencing Guidelines, which provides for a retroactive two-level reduction in the base offense level for offenses involving crack cocaine under U.S.S.G. § 2Dl.l(e). See U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007) (hereafter, “Amendment 706”). His principal argument is that the District Court erred in sentencing him as a “career offender” under the Guidelines. We are not persuaded.
I.
O’Neal-Sloane’s sentence followed convictions for distribution and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Because of O’Neal-Sloane’s prior state-court convictions, the District Court found that he was a career offender, and calculated a total offense level of 37 and a criminal history category of VI. It sentenced O’Neal-Sloane to a term of 360 months in prison. Shortly thereafter, O’Neal-Sloane filed a motion to vacate his sentence under 28 U.S.C. § 2255. The District Court denied that motion and this court declined to issue a certificate of appealability.
In December 2007, the Sentencing Commission added Guidelines Amendment 706 which reduced the base offense level for offenses involving crack cocaine by two levels. It later added Amendment 713 which made the base offense level reductions retroactive beginning March 3, 2008, U.S.S.G. App. C, Amend. 713 (March 3, 2008). See U.S.S.G. § 1B1.10(c). Based on Amendment 706, O’Neal-Sloane filed a motion under 18 U.S.C. § 3582(c)(2)1 to reduce the sen*300tence for his crack cocaine offense, which the District Court denied.2 The order denying that motion is the subject of this appeal. The Government argues that the District Court lacked jurisdiction to reduce O’Neal-Sloane’s previously imposed sentence.
II.
Because O’Neal-Sloane was sentenced as a career offender, his sentence cannot be reduced under Amendment 706 unless we first determine that his career offender status was error. In United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009), we held that “the lowering of the base offense level under § 2D 1.1(c) has no effect on the application of the career offender offense level....” Nonetheless, O’Neal-Sloane argues that “[j]urisdietion lies [to reconsider his career offender status in a § 3582(c)(2) proceeding] because [his] entitlement to the two-level reduction for crack offenses ... is inextricably bound up with the merits of his status as career offender.” Appellant’s Br. at 24-25. However, although 18 U.S.C. § 3582(c)(2) is the mechanism by which a prisoner may seek to have his sentence reduced because of a retroactive amendment to the Guidelines, district courts have no authority “to reconsider [their] prior determination to apply the career offender guidelines_” Mateo, 560 F.3d at 156.
As noted in Mateo, adopting O’Neal-Sloane’s contention would contravene the statutory text. Id. Section 3582(c)(2) states that any sentence modification must be “consistent with applicable policy statements issued by the Sentencing Commission.” The relevant Guidelines policy statement, as revised after Amendment 706, requires a court to
determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.
U.S.S.G. § lB1.10(b)(l) (emphases added).
The procedure available for a motion for reduction in sentence based on a defendant’s erroneous designation as a career offender is provided by 28 U.S.C. § 2255(a), rather than by 18 U.S.C. § 3582(c)(2). Section 2255(a), provides that a “prisoner in custody under sentence of a court established by Act of Congress claiming ... that the sentence was imposed in violation of the ... laws of the United States ..., may move the court which imposed the sentence to vacate, set aside or correct the sentence.”
O’Neal-Sloane’s prior motion under § 2255 was unsuccessful. Before a successive § 2255 motion may be considered by the District Court, it must be certified by a three judge panel of the court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral *301review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h)(l)-(2). Neither provision pertains here. See In re Dorsainvil, 119 F.3d 245, 247-48 (3d Cir.1997) (rejecting arguments that a new judicial opinion constitutes newly discovered evidence and that the Supreme Court’s interpretation of a criminal statute constitutes a new rule of constitutional law).
O’Neal-Sloane contends that even if he cannot make a second motion under § 2255, the District Court should have construed his motion as a petition for habeas corpus under 28 U.S.C. § 2241 and the “safety valve” clause of 28 U.S.C. § 2255(e), which we interpreted in In re Dorsainvil.3 119 F.3d at 249. O’Neal-Sloane’s reliance on our decision in In re Dorsainvil is misplaced. In that case, we noted that the safety-valve could be used only if § 2255 is “inadequate or ineffective to test the legality of [a prisoner’s] detention.” In re Dorsainvil, 119 F.3d at 251 (quoting 28 U.S.C. § 2255(e)). That was the situation in In re Dorsainvil, where the petitioner was in an “unusual position” as a prisoner who, without the safety-valve, would have had no opportunity to challenge his conviction for a crime that an intervening change in substantive law could negate with retroactive application. Id.
Whereas the petitioner in In re Dorsainvil may have been confined for conduct the Supreme Court later deemed not to be criminal, O’Neal-Sloane has no similar claim and there is no doubt that his confinement is lawful. His situation is therefore unlike that presented in In re Dorsainvil which turned on the “complete miscarriage of justice” presented by the exceptional circumstances in that case. Id. at 251 (quoting Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). -Arguably, an incorrect classification as a career offender would be a miscarriage of justice but O’Neal-Sloane does not present such a case.
Underlying O’Neal-Sloane’s classification as a career offender is his 2001 conviction for simple assault under Pennsylvania law. Under the Pennsylvania statute, a person is guilty of simple assault if he “intentionally, knowingly or recklessly causes bodily injury to another.... ” See 18 Pa. Cons.Stat. Ann. § 2701 (emphasis added).4 A career offender must have had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a) (emphasis added). Under the Sentencing Guidelines, a crime of violence is an offense punishable by imprisonment for a term exceeding one year that has as an *302element, inter alia, “the use of ... physical force against the person of another” or “involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(l)-(2).
In United States v. Johnson, 587 F.3d 203, 208-09 (3d Cir.2009), we considered whether a conviction of simple assault in Pennsylvania should be treated as a conviction of a crime of violence. We accepted the Government’s interpretation of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), as holding that a crime involving negligent or reckless conduct was not a crime of violence for career offender purposes. Johnson, 587 F.3d at 210-11. On the other hand, we held that if the conduct was intentional or knowing, the conviction under Pennsylvania’s simple assault statute is a crime of violence. Johnson, 587 F.3d at 210-11.
The relevant facts about O’Neal-Sloane’s 2001 simple assault conviction are set forth in the Pennsylvania Superior Court’s opinion affirming the jury’s verdict. Commonwealth v. O’Neal-Sloan, No. 01698MDA01, 2002 WL 32782354 (Pa.Super.Ct.2002). He was charged with punching his girlfriend in the eye and causing abrasions on her knees and elbows. Id. at 6. Although he denied the charge, the jury found him guilty. Id. at 7-8 (quoting the trial court’s finding that O’Neal-Sloane “knowingly caused bodily injury to” his girlfriend); see also Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (permitting reliance on express findings by the trial judge in determining whether a prior state-court conviction is a violent felony). It follows that O’Neal-Sloane’s simple assault was intentional and thus a crime of violence under Johnson. See 587 F.3d at 212 (“[A]n intentional or knowing violation of [Pennsylvania’s simple assault statute] is a crime of violence under U.S.S.G. § 4B1.2(a)(2).”). In light of the conduct underlying O’Neal-Sloane’s simple assault conviction, which satisfies the crime of violence requirement for classification as a career offender, we find no miscarriage of justice in the District Court’s decision to impose O’Neal-Sloane’s original sentence.
III.
For the above-stated reasons, we will affirm the order of the District Court denying O’Neal-Sloane’s motion to reduce his sentence.
. 18 U.S.C. § 3582(c)(2) provides:
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.
. We review a district court's ultimate decision whether to grant or deny a defendant’s motion to reduce his or her sentence under § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 154 n. 2 (3d Cir.2009).
. In his brief, O'Neal-Sloane also argued that the District Court could have construed his motion under § 3582(c)(2) as a petition for a writ of coram nobis. At oral argument, however, O'Neal-Sloane stated through counsel that he was abandoning that theory, acknowledging that the writ of coram nobis "doesn't apply” to this case. Tr. of Oral Argument at 22.
. Pennsylvania's simple assault statute, 18 Pa. Cons.Stat. Ann. § 2701, says, in relevant part:
A person is guilty of assault if he:
(1)attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
(4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478736/ | OPINION OF THE COURT
TASHIMA, Circuit Judge.
Appellant Rose Brophy appeals the District Court’s order denying Brophy’s motion for summary judgment and granting summary judgment to Appellee Nationwide Mutual Insurance Co. (“Nationwide”). We will affirm.1
I.
The following facts, as recited by the District Court, are undisputed. Brophy is a mail carrier for the United States Postal Service. On October 15, 2001, she was returning to the post office in her standard *304mail delivery truck when she was in a collision with a vehicle driven by Mylene Sweeney. Brophy suffered serious injuries in the collision.
Brophy eventually settled with Sweeney for the limits of Sweeney’s liability insurance policy. She then filed a claim with her insurer, Nationwide, seeking additional compensation through her underinsured motorist coverage. Nationwide denied Brophy’s claim, citing her policy’s exclusion of injuries incurred when “us[ing] ... any motor vehicle ... to carry persons or property for a fee.” App. at 64.
In this action, Nationwide seeks a declaratory judgment that Brophy’s injuries were not covered by her policy. Brophy first moved to remand the action to arbitration, which was denied. The parties then eventually filed cross-motions for summary judgment. The District Court denied Brophy’s motion, granted Nationwide’s, and entered judgment in Nationwide’s favor.2 (App. 3-15, 16.) Brophy timely appeals. (App. 1-2.)
II.
We must decide the meaning and effect of Endorsement 2538 to the insurance policy between Brophy and Nationwide. That endorsement sets out Brophy’s underin-sured motorist coverage. Brophy contends that the District Court committed three errors in its interpretation of her policy. We address each of these contentions seriatim.
A.
Endorsement 2538 excludes from Nationwide’s underinsured motorist coverage the “[u]se of any motor vehicle by an insured to carry persons or property for a fee.” App. at 64. Brophy argues that this language is ambiguous and should therefore have been interpreted in her favor. See Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The District Court concluded, however, that the language unambiguously excluded Brophy’s injuries from coverage. We agree with the District Court.
The language at issue here, or substantially similar language, has been the subject of numerous lawsuits throughout the United States. See, e.g., Cincinnati Ins. Co. v. W. Am. Ins. Co., 112 F.Supp.2d 718, 721-22 (C.D.Ill.2000) (collecting cases). In the most factually analogous Pennsylvania case, the Superior Court held that this language excluded from coverage the injuries that a delivery truck driver incurred when he was in his delivery truck. See Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071, 1073-74 (Pa.Super.Ct.2004). Given that the Supreme Court of Pennsylvania did not express any disagreement with Brosovic when presented with the opportunity, we find the analysis in Brosovic convincing. See Prudential Prop. & Cas. Ins. Co. v. Sartno, 588 Pa. 205, 903 A.2d 1170, 1176 (2006) (“A delivery van is certainly a vehicle used to carry property for a fee.” (quoting Brosovic, 841 A.2d at 1074) (alteration omitted)); see also Ratush v. Nationwide Mut. Ins. Co., 422 Pa.Super. 389, 619 A.2d 733, 733 (1992) (concluding that policy language excluded from coverage the injuries a taxi driver sustained while he was “driving to his home and had no intention of carrying persons for a fee”).
Brophy’s reliance on Sartno is misplaced. In that case, the Pennsylvania *305Supreme Court found a similarly worded provision ambiguous as applied to the employee of a pizzeria who, among other duties, occasionally used his personal vehicle to deliver pizzas. Sartno, 903 A.2d at 1171-73. The court concluded that a reasonable reading of the policy was that “Sartno did not carry property for a fee because there was no delivery charge.” Id. at 1177; see also id. at 1175 (citing with approval an Ohio Supreme Court decision that a similar accident “would not be excluded by the policy, since neither [the pizzeria] nor its customers paid [the insured driver] a fee specifically for delivering the pizza” (emphasis in original)).
In this case, however, not only was Bro-phy operating a vehicle owned by her employer, but the primary purpose of that vehicle — indeed, the primary business of her employer — was the delivery of mail for a fee. Unlike in Satino, there is no question that the post office’s customers paid to have their mail collected, transported, and delivered. Under these circumstances, we see no ambiguity in the endorsement and conclude that Brophy used the mail truck to “carry property for a fee.” See id. at 1174 (“[The determination whether contractual language is ambiguous] is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” (quoting Madison Constr. Co., 735 A.2d at 106)).
B.
We also reject Brophy’s contention that this case falls within the ambit of the policy’s arbitration clause. That clause provides for the arbitration of disputes “about the right to recover damages from the owner or driver of an underinsured motor vehicle or the amount of such damages.” App. at 65. Brophy’s policy also provided, however, that “[qjuestions between the injured party and [Nationwide] regarding whether the injured party is an insured under this coverage, or the limits of such coverage, are not subject to arbitration and shall be decided by a court of law.” App. at 64.
In this case there is no dispute over Brophy’s “right to recover damages” from Sweeney; indeed, she has already done so. Nor are the amount of such damages yet in dispute. Rather, the parties here disagree about whether Brophy may seek additional compensation from Nationwide. We have held that such preliminary coverage questions fall outside of similar arbitration clauses. See Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 204 (3d Cir.2001); State Farm Mut. Auto. Ins. Co. v. Coviello, 233 F.3d 710, 717-20 (3d Cir.2000). In light of the clear policy language, we see no reason to depart from these holdings.
C.
Finally, Brophy argues that the District Court erred when it refused to consider evidence that Nationwide had clarified the language of the exclusionary clause at issue here after the accident in this case. Only where a contract’s language is ambiguous, however, may a court consider extrinsic or parol evidence to determine the intent of the parties. Ferrer v. Trs. of the Univ. of Pa., 573 Pa. 310, 825 A.2d 591, 608 (2002). Because the District Court correctly found that the contract’s language was unambiguous as applied to the facts of this case, it did not err in refusing to consider the extrinsic evidence Brophy presented.
III.
For the above-stated reasons, we will affirm the judgment of the District Court *306granting summary judgment to Nationwide.
. The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.
. We review the District Court’s order resolving cross-motions for summary judgment de novo. Startzell v. City of Phila., 533 F.3d 183, 192 (3d. Cir.2008). Under Pennsylvania law, which the parties agree is applicable here, "the interpretation of an insurance contract regarding the existence or non-existence of coverage is generally performed by the court.” Nationwide Mut. Ins. Co. v. CPB Int'l, Inc., 562 F.3d 591, 595 (3d Cir.2009). | 01-04-2023 | 11-05-2022 |
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